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Posted on By Patrick Maines

A Matter of Trust

We’ll know soon whether the proposed Google-Yahoo! advertising deal will be challenged by the Department of Justice. Certainly there are signs, most notably the hiring of antitrust litigator Sanford Litvack, that it may do so.

But figuring out what is, and is not, in restraint of trade is kind of tricky these days.  In 2002, antitrust concerns derailed the merger of DirecTV and Echostar, a union that would have reduced the number of satellite TV companies from two to one.  Yet just this summer, the two companies that comprise the whole of the satellite radio industry were allowed to merge.

So the opinions that follow aren’t informed by any special knowledge of what the DOJ will do, or even by the factors that will carry the greatest weight within that agency.  By whatever market analysis the DOJ employs, the deal that some refer to as GooglyHoo either will or will not be allowed to go forward.

The question being addressed here is narrower.  It is what the deal might mean to online publishers.  Because of the inherent uncertainties in a deal not yet consummated, much less experienced, we don’t have all the facts.  But there’s a difference, as someone once said, between a lack of complete knowledge and a complete lack of knowledge.  We don’t know everything about GooglyHoo, but we know enough to be worried.

Importantly lurking in the background of this matter is the parlous state of journalism and the legacy media.  In the introduction to its State of the News Media 2008, here is how the Project for Excellence in Journalism (PEJ) put it: “The crisis in journalism, in other words, may not strictly be loss of audience.  It may, more fundamentally, be the decoupling of news and advertising….  Online, the problem is that the revenue model is in search, not conventional, advertising — and journalism sites are now already lagging behind other Internet sectors financially.”

In a Perspectives piece published by The Media Institute earlier this week, attorney Stephen Kinsella suggests a number of ways in which the Google-Yahoo! ad deal could harm the interests of publishers.  Most directly, he says the deal would mean that “online publishers will earn less revenue from their search syndication and contextual advertising deals.”

“Google and Yahoo!,” Kinsella notes, “are currently the two major players in syndicated search and contextual advertising, and compete with each other for these deals with online publishers.  This competition is what pushes both companies to offer more advantageous terms to online publishers.  A Google-Yahoo! agreement will weaken Yahoo!’s competitiveness in bidding for these deals, simply because Yahoo! will have fewer of its own ads to serve as advertisers increasingly migrate away from Yahoo!’s higher prices following the implementation of the deal.”

A similar argument was made by the World Association of Newspapers (WAN).  On Sept. 15, this umbrella organization for some 18,000 newspapers worldwide asked competition authorities in Europe and North America to block the deal, saying it would have a negative impact on the ad revenues that the search firms provide to newspapers.

Quoth the WAN: “The competition that currently exists between Google and Yahoo! is absolutely essential to ensuring that our member titles receive competitive returns for online advertising on their sites….  In our view, the proposed advertising deal between Google and Yahoo! would seriously weaken that competition, resulting in less revenues and higher prices for our members.”

Concerns about the prospective anti-competitive effects of the deal have also been expressed by the leading U.S. advertising association, the Association of  National Advertisers, and with less vigor by the American Association of Advertising Agencies.

The concerns and objections raised by these individuals and organizations do not, of course, prove that the Google-Yahoo! ad deal would be ruinous to online publishers, or that the deal would mark the beginning of the end for Yahoo!.  But given the current state of the legacy media, and their future reliance — if they have a future — on online advertising, it is not surprising that this deal has alarmed many people.

Judging by some of its business practices and policy positions, as posted here in July, Google the company (as distinguished from Google the search engine) disappoints in many ways.  And at the end of the day this disappointment, if shared, may be a matter of some moment.  Because given the opacity and potential harm of this proposed deal, the question of support for it may come down to a matter of trust.  And the view from here is that Google hasn’t earned that trust.

Posted on By Patrick Maines

Journalists, and the future of the media. Part II

From Johannes Gutenberg to the dawn of the Internet, the press (or the media as we now call it) has been characterized by two things: It has been one-way, and it has flowed from the few to the many.  Comes now the Internet, where everyone’s a publisher/broadcaster, and all that has changed.

As we’re seeing already, tomorrow’s media will be two-way and many to the many.  (And a generation from now, when Virtual Reality is prevalent, many to the few as well.)

A change so fundamental poses real challenges to professional journalists, because in the age of user-generated content — whether in the form of blogs, or social networking sites, or YouTubian video creations, or who knows what — many of the “stars” are likely to be what we used to think of as the audience.

In this tumultuous new world, professional journalists will not only have to share the stage with amateurs, they will have to put up with their slings and arrows, and even to defer to them in those instances, which will be legion, where some amateur’s expertise or diligence on a given subject is greater than that of the professional journalist.

And there is one other thing.  As we see even now, all of the amateurs will have opinions, and some will be able to express them very well.

Given all of this, one might ask who will want to be a professional journalist, and what, exactly, will be the role of one?  Though no one knows for sure, the answer to that last question may lie in the advantages available to the professionals.

Because they have financial resources, whole departments of reporters, vast networks of contacts, and the best equipment, professional journalists have now, and will continue to have, something the amateurs don’t — the ability to engage in the practice of gathering and reporting the news.

It follows from this that the media of the future may put a greater emphasis on thoroughness and objectivity, not necessarily out of high-mindedness or J-schoolish exhortations, but because this kind of reportage, unlike opinion and analysis, is something only they can do.

If this is in fact the future of journalism, it will mark a return to a journalistic standard that’s lately  been honored more in the breach than the observance, and it will be another example of how great societal benefits often derive from the pursuit of self-interest.

Posted on By Patrick Maines

Journalists, and the future of the media. Part I

“Ladies and gentlemen, The Network News Hour with Sybil the Soothsayer … Jim Levitt and his Almost Truth Department … Ms. Madahare and her Skeletons in the Closet…. Tonight, another segment of Vox Populi….  And starring the mad prophet of the airwaves: Howard Beale!”  (From the movie “Network,” 1976)

Everyone of a certain age remembers the story of the unhinged anchorman, Howard (“I’m mad as hell and I won’t take it any more”) Beale.  Examples abound that playwright Paddy Chayefsky was onto something.  Keith Olbermann comes to mind – and all the more so after MSNBC took the highly unusual step of removing him from his anchor post for being too far over the top.  Where journalism is untethered to standards of professionalism, and ratings are all, journalism suffers.

But the sullying effect of entertainment values on journalism is well understood.  The thing that’s less well understood, and a much more intractable problem, is the role of journalists in the decline of journalism.

From their tiny and parochial grasp of the speech clause of the First Amendment, to their growing embrace of opinion rather than objectivity, to their response to all things Internet, the performance of much of the national press corps these days seems – to borrow a phrase from Malcolm Muggeridge – like the antics of an exhausted stock.

Journalists’ knowledge of and support for the First Amendment can be measured by the things they promote and the things they do not. They favor access to government information, the right not to have to reveal their sources, and weak libel laws.  And leaving room for a little quibbling around the edges, all of these are good things.  But note the parochialism.  Journalists want access to information in the same way, and for the same reason, that fishermen want access to nets.  The point being that, whatever the intrinsic public good, and it’s manifest, access to information is a practical need of journalists.

But what about the speech needs of people who are not journalists?  Like the commercial speech of advertisers of legal products?  Or the speech of college students, circumscribed by campus speech codes?  Or the political speech of groups or individuals who, close to the date of federal elections, wish to make political arguments through issue ads?  Or, even within the industry, of the right of media companies not to have to yield to onerous and government-mandated “public interest” obligations?

On these and other First Amendment issues, far too many journalists are silent if, as with campaign finance reform, they aren’t actually on the other side.

Controversy over media coverage of this year’s extraordinary presidential election campaign opens a window on another journalistic sore spot, the twinned issues of objectivity and media bias.  In an article dated 9/3, Howard Kurtz of the Washington Post observed, without a hint of irony, that “denouncing the news media as biased plays well with many Republican voters.”

A similar observation was made the next day in an article in the New York Times. “If there is one mission Mr. McCain wants to accomplish at his convention,” it says, “it is to galvanize conservative voters who have shown signs of depression this year.  Traditionally, one surefire way to do that has been to attack the ‘elitist’ mainstream news media.”

But whether we’re talking about conservatives, who represent maybe one-third of the country, or Republicans who, at least at election time, represent half, the obvious question is why do they feel this way?  Why is it that attacking the media is a “surefire” way to galvanize Republicans and conservatives?  In all the years that I’ve been watching presidential campaigns, I don’t ever recall reading a similar line about Democrats, or about liberals for that matter.

It’s true, of course, that there are people to the left of liberals who are critical of the media.  But the great divide in American political life isn’t between Republicans and conservatives on the one hand, and Marxists and leftists on the other. It’s between Republicans and Democrats, conservatives and liberals.  And thus, when journalists suggest, as they have for decades, that the existence of critics on the left as well as the right proves that their efforts are balanced, they miss the pregnant truth by a mile and persuade no one.

At what may be a tipping point for all of the professional media, isn’t this a problem that the industry should redress?  Is there any other industry that, upon hearing that half of their market feels they’re being dissed, wouldn’t move to correct, or at least ameliorate, that problem?

Of course the media are different from other industries in another way too.  Owing to the “firewall” erected over time between the journalistic “product” and the management of the companies that own that product, the news industry is the only one in which corporate management exercises little control over what its writers, reporters, and editors produce – little control, in other words, over their very products.

So with management hamstrung by the firewall convention, who is willing and able to mind the store, so to speak?  Certainly not those institutions that exist to fund, study, promote, and chronicle contemporary journalism.

Of the handful of foundations – like the Knight Foundation – that routinely provide funding for journalism-related programs at universities and nonprofit organizations, all share a mindset, whatever their funding priorities, that can be characterized as Old Newspaper.  As such, they cling to journalistic notions that are outdated, uninformed, and fundamentally irrelevant.  And what is true of the foundations is true, and then some, of the rest of the journalism infrastructure: TV critics, media reporters, ombudsmen, and the journalism reviews.

If, as they say, war is too important to be left to generals, perhaps it’s not too much of a reach to say that journalism is too important to be left to journalists.

Next: The Internet and its growing impact on journalism.

Posted on By Richard T. Kaplar

Sheer Lunacy: Taxing the Technologies of Freedom

Imagine that someone came up with an idea to solve the “problem” of information overload (a.k.a. “too much information”) by levying a tax on the technologies that have sparked our information explosion.  Making it too expensive for many people to blog or otherwise send and receive information through digital and Internet-based technologies would not only reduce a lot of superfluous, self-indulgent electronic clutter, but would reverse the fragmentation of opinion threatening our democracy, the theory would go.

Well, someone has come up with just such a scheme.  An environmental attorney named Dusty Horwitt published his incredibly outlandish idea in the Aug. 24 Outlook section of the Washington Post.  (“If Everyone’s Talking, Who Will Listen?”)  He proposes a “progressive energy tax” that would “make the technologies that overproduce information more expensive and less widespread.”

Anyone who has the faintest sensibility about the free flow of information must find this notion not only preposterous, but repulsive.

Forget, for a minute, that such a scheme would be utterly unworkable.  (How, for instance, would the government tax the electricity going into your computer differently than the electricity keeping the beer in your refrigerator cold?)  And we’ll leave it to our economist friends like Harold Furchtgott-Roth to point out the fatal flaws from an economic standpoint.

From a First Amendment perspective, Mr. Horwitt’s proposal is simply horrendous.  Restricting the means of disseminating information is tantamount to restricting information itself.  And information is speech, almost all of which is protected from government interference by the First Amendment. 

It is freedom of speech, and the free flow of information, that distinguishes the United States from China, totalitarian regimes, and most third-world countries.  Restricting the availability of information is a totalitarian tactic that is the antithesis of democracy, not something undertaken in support of it, as Mr. Horwitt alleges. 

Under Mr. Horwitt’s scheme, who would decide how much information was enough? Perhaps we would need a Ministry of Information to make those decisions.  And if the quantity of information were regulated, would the regulation of content be far behind?

In an earlier age, maybe Mr. Horwitt would have favored a stiff tax on printing presses and newsprint.  It’s no coincidence that the Founding Fathers created the First Amendment, because taxing the means of producing speech was a form of government coercion they found utterly repugnant. 

And perhaps it’s no coincidence that Mr. Horwitt never mentions the First Amendment or acknowledges any constitutional concerns about his proposal.  I don’t see how his scheme could possibly pass constitutional muster under the Supreme Court’s O’Brien test, for instance.  Taxing speech isn’t the same as taxing cigarettes or gasoline.

The technologies that Mr. Horwitt would like to tax into oblivion, or at least into submission, are the latest iteration of what Ithiel de Sola Pool famously called the “Technologies of Freedom.”  Give me my newspaper and my traditional radio and TV, but also give me the rollicking, raucous world of the blogosphere, satellite and Internet radio, hundreds of cable and satellite TV channels, and the incredible wealth of information available on the Web.  These are today’s “technologies of freedom” that make our democracy what it is. 

How could anyone be fearful of “too much information”?  Information is the lifeblood of democracy, and the more the better.  The idea of restricting speech by taxing the messenger is repulsive indeed.    

Posted on By Patrick Maines

Conservatives and the Media

For maybe 50 years, self-described conservatives have been alienated from the dominant U.S. media — the Big Three TV networks, big-city newspapers, the national newsweeklies.  This alienation of a group that comprises as much as a third of the electorate has provided opportunities for such as talk radio companies, and the FOX News Channel, to pick up the pieces.

And even on the Internet conservatives are having success.  They may not have the political influence on the Republicans that the “netroots” have on the Democrats, but websites like the Drudge Report and Real Clear Politics are highly influential and display a clearly discernible right-of-center profile.

With this kind of success — owing entirely to the marketplace and deregulation — one would think that conservatives would be very chary about doing anything that might invite government control over media content.  And perhaps some are, but the loudest voices belong to those whose actions and agenda invite precisely this.

Take, for instance, the empire created by L. Brent Bozell.  From entertainment programming to journalism, the House that Brent Built gives voice to a brand of conservative criticism that spans issues from “broadcast indecency” to “liberal media bias.”

And if this were all that they did, there would be no qualms here about the Bozell-founded Parents Television Council (PTC) or his Media Research Center.  Media criticism, after all, is itself free speech.  But it isn’t all that they do.  Through organized letter writing campaigns, position papers, and filings at the FCC, the PTC actively encourages both legislative and regulatory action against “broadcast indecency.”

That this position contradicts one of the central tenets of modern conservatism — the imperative of limited government — is something that Bozell himself has acknowledged to be a conservative critique of his organization.  Alas, inconsistency (some would call it hypocrisy) of this sort does not weigh so heavily on the gentleman as to cause him to reconsider.

Like the late Reed Irvine, another conservative media critic who came before him, Bozell apparently believes that government regulation isn’t always a bad thing.  In Irvine’s case, the classic example of this was his support of the Fairness Doctrine.  Irvine believed that, without the Fairness Doctrine, conservatives would be bereft of any influence over the liberal sensibilities of broadcast journalists.  Of course we now know that repeal of the Fairness Doctrine led directly to the dominance in talk radio not of liberals but of conservatives!

In demonstration of the tenacity of history, this same Fairness Doctrine may yet prove to be Brent Bozell’s undoing too.  This, because these days all the talk, endorsed by such as the Speaker of the House, is of the reinstitution of the Fairness Doctrine.  Through the Media Research Center, Bozell is mobilizing his troops to fight against any such plan, but because of the pro-regulation stance of his PTC there are real questions about how much credibility his anti-Fairness Doctrine activities will have.

Oh, he will, one assumes, be able to organize a letter writing campaign, but such campaigns don’t equate  with credibility in the same way, and for the same reason, that power doesn’t equate with integrity.

Posted on By Richard T. Kaplar

Is China Big Enough for Free Speech?

The Olympics are now in full swing in Beijing after a spectacular opening ceremony that displayed many of the Chinese people’s finest attributes.  The Chinese government and free speech, however, are another matter.

Our friend Kurt Wimmer has written an excellent piece for us on this topic titled “The Beijing Olympiad: A Fleeting Opportunity for a Freer China.”  Kurt notes that by July, Chinese officials had imprisoned almost 50 Chinese writers whose opinions the government found subversive or threatening.  And the clampdown was not limited to native Chinese.
 
Western journalists were ordered out of the ravaged Sichuan province following the earthquakes there, and at least 10 foreign journalists covering Tibet have had their lives threatened since March.  Meanwhile, the “Great Firewall of China” blocks access to Internet content that criticizes the government, lest Chinese citizens hear anything untoward about their leaders.

The drumbeat continued in the days just prior to the games with stories about journalists denied access, activists deported, and even the U.S. press corps plane being delayed for a baggage search.  Subtlety is not in the playbook of Chinese censors, from all indications.

Still, Kurt finds a glimmer of hope in all of this.  If the United States and other nations can bring enough media pressure to bear, perhaps the will of the Chinese people can prevail and usher in a new era of greater transparency, he says. 

It’s a big “if,” as Kurt acknowledges.  There are no guarantees that free speech will take root just because the Chinese are hosting the Olympics.  But as the Games focus the world’s attention on China, they do provide an opportunity – however fleeting – to begin a process that could just lead to greater freedom of speech and press. 

Posted on By Patrick Maines

Of Men and Machines

You know that idealism has taken an odd turn when it’s associated more with the function and marketing of machines than with the creative work of human beings.  That is, or should be, the take-away from the latest copyright flap — MPAA’s petition to the FCC for a limited waiver of that agency’s so-called SOC rules.

For those of you who don’t follow such things, the point of the petition is the film studios’ desire to market Video on Demand, high definition movies earlier than DVDs, and closer to their release date in theaters.  This would be done through deals the studios would make with video programming distributors like satellite TV, cable TV, and telecom companies like AT&T and Verizon.

Problem is that the program distributors are not allowed, without a waiver for the purpose, to market such films in the way (with SOC-enabled content) that would prohibit illegal copying and distribution, something the studios have reason to fear greatly.

In the grand tradition of all such, the petition has attracted not just the attention of the primary players — the studios and program distributors on one side, and the video equipment manufacturers on the other — but also the usual coterie of self-professed public- and consumer-interest organizations.

Seven such, led by the Washington group Public Knowledge, filed comments last week in opposition to the waiver, and their arguments speak volumes not only about their mindset toward such matters, but in a way that parallels the lack of regard for copyright in the larger universe of academia, much of the technology press, and among the digerati generally.

By all appearances, the biggest issue Public Knowledge et al. have with the waiver petition is an alleged frustration of “consumer expectations” that would ensue when owners of “legacy devices” (older high-def TVs that, unlike all of the more recent models, do not come equipped to recognize SOC data) find that they cannot order the movies at the earlier release date.

Though not guaranteed, both the logic and the language of the MPAA petition strongly suggest, however, that these same movies would still be available for purchase, VoD, at the later date that obtains today.  And in any case, they would also be available through premium subscription services, like HBO and Showtime, during the usual release window, about 9-12 months after their theatrical debut, and as DVDs in half that time.

Public Knowledge and company strain to characterize this matter in compelling language: “Users who purchase expensive multi-component HD-capable entertainment systems,” they say, “are likely to consider them generally future proof…. Even if early-release films do not appear on the list of VoD offerings for these users, customers will be left wondering why neighbors and friends — those who subscribe to the same MVPD service at the same price, and have near-identical setups using different cables — are not offered the same movies.”

The national interest in envy-free neighborhoods notwithstanding, the fear that someone will be disadvantaged because he has a digital device that, being older, can’t do things that newer ones can, seems like kind of a wobbly rock on which to build the church of the public interest.  This, because the clearest thing in the world about the Digital Age is that not only is nothing forever, nothing is even for very long.  And this is true of all things digital, from computers, to cameras, to PDAs, to satellite radios, and yes, even to TV sets — all of which, in any case, are just machines!

The aspect of this, and related issues, that ought to be capturing the attention of public interest advocates, and “idealists” generally, is the human role.  In the making of films, for instance, it is human beings, not machines, who write the scripts, act the roles, design the sets, and direct the enterprise.   And it is these people, and their creative work, that should be at the forefront of our concern.

The issues raised by this particular MPAA petition aside, there is something these days that adds great poignancy, from an American perspective, to all things copyright related.  The United States faces international challenges that may be as daunting as those occasioned by the Cold War.  Specifically, we face the reality of global competition from countries both free and totalitarian, and with access to vital commodities, that is unlike anything we have ever known.

From behemoths like China, whose economy is projected to be bigger than ours in the foreseeable future, to countries like those in the Arab states, which are rich in oil, the USA is being challenged to find something it can do better than anyone else.  Because of our many freedoms, not the least of them freedom of speech and of the press, that thing is now intellectual property.  But it will need to be protected if it is to sustain us as a nation.

Posted on By Richard T. Kaplar

The FCC, Indecency, and the Rule of Law

Call it a victory for the rule of law.  And a victory for common sense.

On July 21, the U.S. Court of Appeals for the Third Circuit overturned the Federal Communications Commission’s fine against CBS televisions stations for airing the Janet Jackson Super Bowl incident.

As you might remember, this was the so-called “wardrobe malfunction” involving Justin Timberlake that allegedly traumatized millions of children watching the Super Bowl halftime show.  Activist groups mobilized, Congress jumped in, and the FCC swiftly cracked down on “indecency” in an abrupt departure from its decades-long policy of restraint toward “fleeting” incidents.

However, the Third Circuit concluded that the FCC had reversed its policy in a manner that was arbitrary and capricious without adequate notice to broadcasters.  In doing so, the Commission had violated the Administrative Procedure Act, the court found.  In essence, the court told the FCC that it can’t do whatever it feels like doing in response to the winds of public opinion or the grandstanding of certain politicians.  

That’s the right decision.  Yet the ruling was greeted in many quarters with reactions ranging from keen disappointment to outrage, as if the indecency crackdown were an end that should be justified by any means.  As John Eggerton reported in Broadcasting & Cable, even the FCC chairman was “surprised” and “disappointed.”  In our judicial system, however, the rule of law trumps personal feelings and public opinion – even the “public opinion” of mass e-mail campaigns orchestrated by activist groups.

So far, the Second Circuit and now the Third Circuit have rebuked the FCC for its recent approach to indecency enforcement.  In response to the Third Circuit’s decision, FCC Chairman Kevin Martin noted “the importance of the Supreme Court’s consideration of our indecency rules this fall.”  He’s right about that – and we trust the Supreme Court will be the next judicial body to get it right.
 

Posted on By Patrick Maines

Tony Snow, RIP

Last October The Media Institute presented Tony Snow with our Freedom of Speech Award. It was, among some people, a controversial decision. Tony was a well-known conservative commentator even before he was press secretary to George Bush, facts seen by some as disqualifying him from receiving such an award.

The sad news of his passing reminds me of why we did it, and of how glad I am that we did it in time.

Truth be told, the seriousness of Tony’s illness factored into the decision. But that had more to do with when we gave it than with the reason for giving it. The reason we gave the award to Tony was because we thought he demonstrated such grace and courage in the face of an impossible situation.

How many people, even without suffering a life-threatening illness, could serve so well a president so unpopular? And isn’t that at the very heart of the virtue in freedom of speech?

As Tony’s presenter that night, the wonderful Ann Compton of ABC, put it: “In America’s history, it has often taken courage to defend freedom of speech. Courage to speak out. Courage to return day after day when you can expect scorn and repudiation…

“It also takes courage to step back in front of the lights and cameras, your hair grey and thinning, your suit loose and limp, and your heart anguished about what really means the most to you—your wife Jill and your three sweet children. In that courage, Tony, you have earned and will always have not only our respect, but our affection.”

Posted on By Patrick Maines

The Problem With Google

For a company whose corporate motto is “Don’t be evil,” Google has an unfortunate capacity to look past the most obvious things.

Take, for instance, its stance in favor of “net neutrality.” Insofar as this concept is more than a slogan it’s a bad idea, and especially so as a matter of policy.  Legislation like the Internet Freedom Preservation Act, for example, invites real government regulation of the Internet as a solution to an imaginary problem.

As seen in the title of the congressional legislation, the language of net neutrality proponents, always over the top, has lately taken on a kind of goofy grandeur, with some — like Save the Internet, a coalition coordinated by Free Press — trafficking in such pap as “Net neutrality, the First Amendment of the Internet.”  (Of course it is.)

But what’s the attraction in all of this for Google?

The critics’ answer is that Google wants to ensure, whatever the cost to the future development and independence of the Internet, its own dominant, and free riding, position.

Google’s approach to the problem of copyright infringement also calls into question the company’s high-mindedness.

As charged in the case of Viacom v. YouTube,  Google is accused of flagrant violation of copyrighted material on the website of its YouTube subsidiary.  Google’s defense is that it takes down offending posts after being notified, and that this is sufficient under the safe-harbor provisions of the DMCA.

But in its complaint Viacom makes a compelling case that the takedown process is an endless loop of notifications and re-postings, and that, in fact, copyright infringement is at the heart of YouTube’s business plan.

A number of observers have suggested that Viacom’s lawsuit is just an attempt to win a favorable licensing agreement, and that in the end the parties will work out some satisfactory arrangement between themselves.

Perhaps, but copyright infringement is not a crime against humanity, it’s a crime against copyright holders, and if a negotiated settlement is the result, so be it.  This said, much might be usefully clarified if the dispute goes all the way through trial.

In any case, the point is that, as with net neutrality, Google’s posture regarding copyright infringement seems to be driven more by its own interests than by any sense of a community of interests.

By the standards of those of us at The Media Institute, which is primarily a First Amendment organization, Google’s lack of any meaningful concern or action regarding freedom of speech and of the press is the most troubling aspect of the company.

We would not have this concern if Google were just a small affair, or if the legacy media were fat and sassy.  But neither is the case.  Google is a giant while newspapers, for instance, are in a fight for their very survival.

Just to establish a frame of reference, as this post is being written (midday, July 10), here are the market capitalizations of some leading media companies: Time Warner, $50B; Disney, $56B; Washington Post, $6B; Gannett, $4B; New York Times, $2B; and McClatchy, $427M. And Google’s market cap?  It is just in excess of $172B!

In other words, the market values Google more than it values Time Warner, Disney, Washington Post, New York Times, Gannett, and McClatchy put together!  In fact a lot more — 45 per cent more.

And the rub in this is that, as an historical matter, the most important players in promoting and defending the First Amendment have been Hollywood and newspapers.  Yet these are two industries much beleaguered by the Internet, of which Google is the leader.

Against this background one might expect a company determined not to be evil to mount a major effort, if not in assistance to the old media, then in lending a hand in promotion of the First Amendment. Sorry to say, Google’s record in this regard is a blank slate.

It’s in the nature of the way the world works that one can “be evil” in more than one way.  One can do it by acts of commission, and one can do it by acts of omission.  Judging by the examples above, Google does it both ways.