Intellectual Property Law

Googlement

By Mike Madison

“Googlement,” rather than “government,” seems to be the theme of Jeffrey Rosen’s NYT piece today on how Google decides what stays and what goes on its various platforms.  Frank Pasquale offered his own take on the piece here:  The ostensibly public-spirited motives of an enormous, for-profit enterprise ought to be examined critically.

My take differs from Frank’s.  I think that it is an error, critically speaking as well as legally speaking, to load up Google with all of our frustrations over Internet “gatekeepers,” whether those are public or private.  Rosen interviewed Tim Wu for the piece, and Tim persuaded Rosen to follow the “monarchist” metaphor:  “[T]o trust Google, you have to be something of a monarchist, willing to trust the near-sovereign discretion of [Googlers] Wong and her colleagues.”  Googlement displaces government; the two raise comparable issues of legitimacy and authority.

As to those foundational questions, I absolutely agree:  Socially as well as legally, what is the source of Google’s authority?  That problem, not just the “who decides” aspect of American-style free speech, lies at the core of modern information policy debates.  But the monarchist metaphor mistakenly builds in a hierarchy of authority that parallels the inherited hierarchy of authority that we typically use to describe government.  Googlement, on the monarchist reading, is comparably top-down.  Define and regulate Googlement, and the problem of private discretion seems to be solved.  Rosen buys this argument; he writes of his surprise that the Googlers would like nothing more than to be put out of the regulatory business altogether.

As Ed Rubin wrote persuasively in Beyond Camelot,  however, the monarchist metaphor is out-dated.  It might be good to be the king, as Mel Brooks once said, but the problem is not that Google is the new king, but instead that it is one king among many.  There are kings all around us.  Even if Google’s problem can be solved — some kings are bigger than others — problems of legitimacy and authority won’t go away.  What’s worse, as Rubin argues, the classic division of the argument into “public” regulation and “private” regulation is simply inadequate to describe what we actually observe.  Google itself is a private company — acting in the shadow of and (in the YouTube context especially) in express reliance on the (public) DMCA.  Lots of corporations and law firms block Facebook.  My local public high school blocks Blogger.  I could go on and on.  None of these demands precisely the same treatment as Google, but that is precisely the point.  The modern networked administrative state calls for something new.  Rosen concludes the piece with an a propos quotation from Kent Walker, Google’s GC (disclosure:  Kent has been a friend for roughly 30 years):  ?We?re at the dawn of a new technology. . . . And when people try to come up with the best metaphors to describe it, all the metaphors run out. We?ve built this spaceship, but we really don?t know where it will take us.? Or, he might have said, where we will take it.

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Full post as published by Madisonian.net on November 30, 2008 (boomark / email).