Tech Law Prof as Prognosticator
posted by Frank Pasquale
My appearance on David Levine’s Hearsay Culture show recently showed up on iTunes–somewhat ironically given my repeated criticisms of the great and terrible Jobs. As I listened to part of the show, I was struck by how much the legal analysis of search regulation was dependent on future business and technology developments. If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary. But if there are diverse successful search engines, a wholly different approach is plausible.
The whole exercise reminded me of Warren Wagar’s fascinating book, A Short History of the Future, which tries to envision the next 200 years of world history. Projecting tech trends that far out must in part be in an exercise in fantasy–but on the other hand, the very process of doing so is a humbling reminder of how much events depend on utterly contingent developments that came before.
For that reason, perhaps, the old “long-form” scholarship of the big law-review article may be becoming increasingly ill-suited for rapidly changing areas of technology. Perhaps that’s why the recent Wu-Yoo debate on net neutrality, or Wu’s even more recent take on the future of indie movie gatekeeping, is so refreshing. It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players.
On the other hand, we can’t let the mere mutability of the tech landscape cow us into passivity. There is no neutral baseline in these fields–they are already so saturated with government intervention in the form of IP rights, regulation, etc., that it makes no sense to characterize any given “noninterventionist” move as promoting the unalloyed efflorescence of the market. Whoever wins any given battle among content providers, intermediaries (like search engines) and network operators (like phone and cable co’s), the result will be due to a lot of prior lobbying and shaping of the law–whatever stance legislators and regulators take heretofore.
Photo Credit: LongView/Flickr, “Pike’s Fortune Teller.”
January 30, 2007 at 2:01 pm
Posted in: Technology
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Responses (6)
Maryland Conservatarian - January 30, 2007 at 3:48 pm
“If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary.”
So, if Google continues to give the Market what it wants better than others; that signals an increasing need to regulate Google? And what identifiable group – besides lawyers – benefits from that?
Dave - January 30, 2007 at 8:37 pm
Frank, I enjoyed the show and thanks for being a guest. And the fact that the interview has apparently informed your scholarship is a high compliment! I’m in the process of scheduling other experts in the world of search . . . meanwhile, the lobbying point is worth noting: this, like so many other Internet law issues, is likely on a legislation countdown.
Miriam Cherry - January 31, 2007 at 2:45 am
It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players
A thought-provoking post, except that I got lost on this sentence… or maybe that just ‘cuz it’s late…
Frank - January 31, 2007 at 7:11 am
Miriam: Thanks! Well, that sentence was a little over the top…I threw in “mandala” to convey the impermanence of it all….I believe these artworks are usually made of colored sand, and then blown away by the wind soon after they are completed.
MC: My last point in the post above is that, in this field, there really is no free-standing “market” we can refer to. Any player’s current dominance is in large part due to certain regulatory or legal decisions of the government.
In other words, if it weren’t for certain safe harbors in the CDA and DMCA, Google might be long gone by now. Copyrightholders, disgruntled defamed people, etc., would have been able to shut it down (or saddle it with crippling legal expenses) on secondary liability grounds. Moreover, Google’s own business model is predicated on a wide array of government intervention in the IP field.
Google currently feels like it needs net neutrality legislation to continue providign good services and to promote competition generally on the web. What is the “pro-market” position on net neutrality?
Patrick S. O'Donnell - January 31, 2007 at 12:49 pm
I know it’s rather incidental to the post (well, it’s about the only thing there I know anything about!) but just a point of clarification on mandalas: Tibetan Buddhists construct mandalas of colored sand (as did the Navajo!) and then ritually ‘destroy’ them (some agency involved here, so it’s not simply that the wind blows the sand away) to reinforce the Buddhist doctrine on impermanence. Mandalas as such have roots in the Vedic religion (Hinduism; e.g., the ten ‘books’ of the Rig Veda are said to be organized into ‘mandalas’) and sand mandalas are only one kind of mandala: most mandalas are not in fact sand mandalas, although both sand and other mandalas are ritual and meditation aids. A google search will quickly reveal some helpful websites on mandalas and the Wikipedia entry is a decent introduction.
Maryland Conservatarian - February 1, 2007 at 3:31 pm
nothing to add about mandalas but as to the “Pro-Market” position on net-neutrality – well, can’t speak for all but for me, net-neitrality is a solution in search of a problem…and a wonderful excuse for the Frederal government to helpfully interject itself into the goings on on the ‘net. Regulation = Costs = Barriers to Entry. I don’t see the benefit to society so I don’t see the need for the government here…& I’ll resist the urge to rant on about anti-trust laws.
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