I tried to respond to Mr. Hiteshew’s comment to Nito’s post, but our super-duper comment-spam blocker kept dinging me. So, I’m sticking it here.
Michael, I don’t start from a false premise. As it happens, I agree with you about linking and fair use. So, three cheers for us. Rather, I am addressing a different but related issue, the one Nito raised in his post.
I start not from a premise, but from a strategic perspective: I am trying to think of ways the MSM could counter-attack the blogosphere. Under that scenario, I think they could plausibly argue that linking is akin to republication. I think that is a facially plausible argument, which is all they really need. How about putting a disclaimer at the bottom of their webpages saying “any link to this site shall be deemed republication and requires the express, written permission of xxx” and require people to sign up and pay a fee. Then selectively enforce it against anyone who is troublesome by suing them. Would this work? I don’t know. Is it obvious? Yes. Are there any number of further ways that the MSM could strike back, that thoughtful lawyers who are paid to think about these things might come up with? You betcha.
The point is not what I think the right answer is. What I think should happen in the world is irrelevant even to me at this point, since none of it is likely to happen. The interesting question is the objective one: “Can the MSM raise the cost of alternative, Internet-based media that are eroding their economic and ideological position?” A further question is, “Can the MSM make facially plausible legal claims, now or after taking steps to strengthen their position that could raise the cost of blogging above nearly zero, to reduce the scale of the opposition?” I think the answer to both of these is obviously yes. Even if you are totally right, those are arguments you would have to make in response to a lawsuit, and that is expensive, which is the point, from the perspective of the MSM. The further question is “Will there be fallout, trouble, bad publicity, unintended consequences, if the MSM makes this move?” The answer is yes. Weighing those risks and costs against potential gains is a business decision that the owners of the MSM will have to make. I think you can count on some of them at least trying some kinds of counter-attacks, to see how it goes. They have a lot at stake — everything, in fact: money, influence, their jobs.
This leaves aside the possibility of the MSM seeking some advantage via legislation or regulatory action, which is a huge front that the MSM is much, much better equipped to operate in than is the dispersed, under-funded blogosphere composed of hobbyists whose livelihoods and careers do not depend on blogging. If I had to place a bet my head but not my heart would say “bet on the organized, well-funded, well-connected guys with big law firms and big lobbyists who are fighting for their lives.” In any case, the MSM is going to respond to the changing environment, since it has to, and some of that response is likely to be aggressive.
Here is a sad fact, and I mean this without any sarcasm at all. The mere fact that you or anyone happens to be legally, intellectually and morally on the correct side of an issue is only somewhat related to whether you will be able to prevail, whether in litigation, in politics or in any other forum. More importantly, these factors are often inversely correlated with whether you can afford to engage in the combat at all. The guys who are decent and right and good frequently don’t have the money, the organization, the willpower, the time, the ruthlessness to win. As Nito put it, correctly, working for the Dark Side is a better way to get your fees paid in full, on time, on a monthly basis.
This is not a counsel of despair. But any “blogospheric triumphalism” is not so much premature as just foolish. Let’s be alert. Things are going to get interesting.
Update: The comments here and to Nito’s post point in the direction I have been trying to push this conversation all along. We should be thinking out loud, wargaming the possible MSM responses to the blogosphere and considering ripostes and even how to push things in a productive direction.
While the MSM has huge assets, the blogosphere has one advantage the MSM cannot match, if it can be harnessed: Massively distributed intelligence. A good idea put into play by one person can be globally distributed costlessly and, in practical effect, instantly. They hold a lot of cards, we hold one big card.
Bets, Ladies and Gentlemen?
Lex,
I agree that we should treasure these, the Golden Years of the blogosphere. Our children will tell our great grand children about the early 21st century when the whole family would gather round the 15 inch CRT and read the latest wisdom from the Chicago Boyz.
I also agree, more seriously, that the MSM must respond. But how would an MSM response affect the Chicago Boyz? Would you continue as you are except with verbal references but without the link? That would not bother me.
It is going to be interesting. I’m sure a lot of MSM folks are looking at the RIAA Napster history from the perspective that there must be a pony somewhere.
Newspapers were able to co-opt radio and television by acquiring legally restricted licenses from the government. This cushioned the decline of newspapers for the owners but did not prevent the decline.
Whether they can be equally successful with such low cost competitors as the internet may evolve is not clear. That is why they should really be responding far more vigorously to the loss of credibility from Rather/Jordan/Raines/you-name-it-gate. If they lose their credibility, what value do they provide as an intermediary that the net cannot provide at lower cost? It may not be by the blogosphere as we know it, but the net does provide the means for some low cost alternative to the MSM. Especially when I no longer trust the MSM to tell me the truth.
But how would an MSM response affect the Chicago Boyz?
Lex and I have a contingency plan to hole up in our top-secret backup location in the Illinois mountains where we will live on kosher beef jerky and blog on a squirrel-powered server.
Lex, “Can the MSM raise the cost of alternative, Internet-based media that are eroding their economic and ideological position?”
Sure they can, to their detriment, and further erosion of “market share.”
I see a less sanguine option than Richard’s. When the price of any given commodity rises, it risks increased competition from other, often unforseen, sources. This may be the force that drives the blogosphere to develop its own news collection apparatuses.
If blogs, pundits and news-dredgers like Drudge can’t link to unpaid MSM releases, they’ll research and create their own. Or others will. It could be the final nail in the coffin of large, dinosaur, news collection devices like the AP, Reuters, et al.
I’m thinking of a term that describes the abstract currency, or capital, that will seek out new avenues for honest, pluralistic news for publication on line. How about “cognitive capital?”
An optimist to the end.
-Steve
Okay, I know nothing of the law, but we do use quotes much as reviewers and critics do, we link as we would a Works Cited. Reviews & mentions are generally considered desirable.
I would think that any writer or magazine or publishers would recognize that such links lead to the spread of a writer’s ideas, subscriptions to the magazines and buying the book. (Most of the books I’ve bought in the last year, I’ve bought either because I’ve read about them on a blog or heard about them on Booknotes. The exceptions are critical works that no one much buys anyway.)
There’s a real problem–and it isn’t copyrights– if they feel that our criticism outweighs their desire for fame & money. We often praise.
Of course, that does make an argument for charging for subscriptions to periodicals. Still, as Instapundit keeps noting, newspapers care less about subscription than ad money. If we deliver more eyeballs to their sights, again, one would think they’d be grateful (although a future full of irritting pop-ups and ads isn’t perfect.)
Lex, I agree with your response. I also agree that money/power/influence trumps lofty idealism seven days a week, no contest!
I think Richard is right as well. What is going to matter is brand quality in news distribution. Who do you trust?
Maybe from a more subtle point of view, how would you like your news flavored? We, the NYT, can deliver actual news in any flavor, with any spin you prefer. News tailored to what you want to hear. You, personally. We’ll build a newspaper on-the-fly, completely customized to your tastes and political leanings. (We’ll really all be in our own little bubbles then. We’ll each see our own reality.)
Will people pay for a subscription like that? Maybe. If they feel it saves them time/effort they will.
So, the counter-stroke from the MSM might come in their reconfiguring themselves into a new business model. And that new model may mean they’ll become reluctant to allow in unsubscribed links.
Michael, I agree that the MSM needs a new business model to survive. I wrote about that here. As the MSM responds to the new technology, how they deal with blogs, or whatever the successor technology is to blogs, will evolve. I am hoping for a symbiotic and mutually beneficial arrangement. That may happen. But old models of doing business die with much reluctance and destructive thrashing about, usually.
Ginny, you are right that there is or ought to be much common interest here. But see above.
Steve, I think that we are only now at the dawn of the world you foresee. The prospect of a massively disintermediated news-gathering and news-reporting “industry” is very exciting. But the quotation marks point to the problem: How will this be paid for? Can we really rely on totally amateur news-gathering and reporting for everything? Tip-jars to support foreign correpsondants? Bake sales? As much as I hate the MSM there is something to be said for people doing this kind of thing full time — if only they would actually do their flippin’ jobs. So to make it viable you have to be able to collect payments requires enforceable property rights, but the technology pushese against this. I think the older “brands” like the NYT, for example, should move toward a much more flexible, continuously updated, Internet-based model. But, again, how to make it sufficiently profitable that people can be paid to do it full time? This conundrum has yet to be resolved. Pop Up ads are not the long-term answer. Some kind of subscription or micropayment model seems like the kind of thing they will try to do.
Jonathan does not want to reveal our REAL plan to blog from the teardrop-shaped Galactic Patrol cruiser which came into our space-time continuum to battle the evil power of Eddore. It is currently parked at the LaGrange Point 5, and the landing craft is ready to pick us up on short notice. We will spread our message of justice, freedom and liberation and no power on Earth will be able to stop us.
Richard, I think the blogosphere could continue, though much less effectively, without linking. I also think this is the “Golden Age of Blogging” and in ten years we will have moved on to something totally different and this will be seen as an interesting and possibly important episode.
Actually, the courts visited the whole idea about restricting inbound links sometime in the early to mid 90’s when the internet was just taking off. I think it went all the way to the supreme court.
The court ruled that you could not restrict in bound links to publicly available pages. Basically, if you place no restriction on access to your site you can’t bitch when people link to you.
A possible loophole would be to require all viewers to login, thus creating a type of speed bump for inbound links. As a technical matter one can config a website such that straight inbound links won’t work. Websites that are wholly dynamically generated can’t be linked to for example.
Yes, Shannon, BUT … . There are lots of Federal judges who can revisit anything.
And there can be changes in the website and what it says it allows, which would change the facts.
And there can be regulation and legislation which
changes things.
Or there can be an argument that conditions have changed radically since that ruling so it should be revisited, etc.
And if you are the defendant, you have to respond. And if you are Joe Jamoke blogger, you respond by shutting down your blog since you cannot afford to take on Big Dog Law Firm and its team of highly-paid smartypantses. And if there are 500 named defendants, all Joe and Jane Jamoke, they probably all quit — EVEN if the claim could lose in the long run. And, it might not. So, the fact that there is a prior favorable ruling is a helpful fact but not a dispositive one.
C-Boyz,
Maybe its the Australian Shiraz talking, but I’m loving you guys.
Beef Jerky? You’ll both succumb to sodium poisoning before you leave our galaxy. Hope your “teardrop-shaped Galactic Patrol cruiser” has auto-pilot!
When Sgrena Giuliana (or whatever her name was) pulled her stunt, the blogosphere distilled, bottled, and debunked her myth immediately. Drudge’s great break, the Clinton-Intern scandal, was his news, noone else’s.
The development of alternative, info-sources is already happening. It is nascent, infantile, zygotic even, but growing steadily. This futile, old-think, MSM move only pumps more blood down the umbilical cord.
You wrote: “How will this be paid for?”
Ginny has alluded to the answer already, “If we deliver more eyeballs to their sights, again, one would think they’d be grateful(.)” Links equals exposure equals advertising opportunities, equals income. Distilled: eyes equal dollars.
Some wise, free-thinking American entrepreneur (god-bless ’em) is already plotting this out.
And, Lex, I think it may be you!
-Steve
Excellent post Lex.
Gang,
I went to bed pondering a mechanism for rewarding “currency” to Lex’s interlinked “massively disintermediated news-gathering” loci.
The economic term, “Psychic Income” kept popping up. Like any other currency it is an abstract proxy for expended energy. And it can be as real, quantifiable, and even debitable, as is our other abstract currency, money. Economists have vested much thought into alternatives to material compensation for activities. And psychic income is their catch phrase for these alternatives.
I get a motivational “buzz” just from being merited with contributing to your discussions on this blog. It’s just a tiny one, though, compared to the “buzz” a non-advertising blogger gets from an instalaunch from Glen. But, like it, it is non-monetary, and, despite the fact that the spike in viewership can be temporary, waning and often is unsustainable, it serves as a springboard for long-term interlinking that will increase in an exponential relation to the merits of the blogger’s cognitive contributions.
I know that this concept is crudely idealistic, but so was the concept of the world wide web at one time. And the models for this compensatory construct already exist in our natural world.
In search of just such an operational model, my mind jumped to the neural sciences, developmental biology, and in particular, the kinetics involved in the middle stages of neural development: cellular migration, aggregation, process growth and synaptic formation. I ask, what drives a nerve cell to invest energy in the extension of a new dendrite to link with its neighboring neuron? What “payoff” incentivizes that exponential growth in complexity and disintermediation?
Unfortunately I have get out of my pajamas and go to work, so I can’t answer my own question. But there’s some value in asking the right question, no?
Is there a biochemistry or A.I. expert in the ‘sphere who can throw me a line?
-Steve
The MSM is going to have a very hard time if it goes up against bloggers. I have my own (defunct) business site on a Cayman Islands server; there is no reason why any part of the blogosphere has to be in the US. Look how little success the government has had against gambling sites, many offshore. Even for the parts that can’t be sent offshore, the US bits can be hard to find. Blogger, for example, lets you register for a free account without verification of your identity. There are other blog hosts offshore as well. As long as you don’t have to register the domain name, you can hide very effectively. Considering how quickly and cheaply a blog can be put together, the MSM could not shut them down as fast as new ones could be created.
In short, we’re cockroaches. Prolific pests, elusive, almost impossible to eradicate, and likely to survive even nuclear weapons.