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?