From bricks to pajamas: the law and economics of amateur journalism.

• Author: Ribstein, Larry E.

ABSTRACT

Weblogs have proliferated rapidly in recent years, attracting significant attention and generating important legal issues. Yet so far no coherent economic framework for addressing these issues exists. This Article begins to develop such a framework. It views blogs as the vanguard of what might be called "amateur journalism. "Because the Web and related technology have enabled low entry barriers, blogs can be an important source of specialized knowledge. However, bloggers do not work within a monitoring structure as in large news organizations, and individual blogs may be less accurate than conventional news sources. On the other hand, blogs as a whole are subject to strong self-correction mechanisms, including rapid feedback through comments on posts and by other blogs. Also, because most bloggers have low-powered incentives, regulation can easily deter them and thereby reduce the value of these self-correction and market mechanisms. The Article applies these insights to a variety of legal issues, including the journalist's privilege, election laws, defamation and licensing laws, media ownership restrictions, copyright laws, and vicarious liability.

TABLE OF CONTENTS INTRODUCTION I. THE TECHNOLOGY OF BLOGGING II. THE ECONOMICS OF BLOGGING A. Private Costs of Amateur Journalism B. Incentives 1. Self-expression and Communication 2. Cross-promotion 3. Advertising Revenue C. Social Benefits: Blogging as Decentralized Knowledge 1. Exploiting Individual Expertise 2. Google as a Price Mechanism 3. Bloggers as Benevolent Parasites 4. Interactivity 5. Lack of Professional Constraints or Biases D. Social Costs 1. Noise 2. Effect on Professional Journalists 3. Harmful True Information 4. Political and Social Discourse E. Alternatives to Regulation F. The Public Choice of Blogging G. Summary III. REGULATION OF AMATEUR JOURNALISM A. Application of Special Press Privileges B. Election Laws C. Media Ownership Restrictions D. Defamation Law E. Professional Regulation F. Blogs as Commercial Speech G. Fraud Liability H. Vicarious Liability I. Harmful but Accurate Speech CONCLUSION INTRODUCTION

Journalism traditionally has been a full-time job. Because printing and broadcasting require assets to reach an audience, conventional journalists have to work for newspapers or broadcasters. In this bricks-and-mortar" model of journalism, practitioners make significant investments in physical equipment, technology, office space, personnel, and goodwill. Media firms' capital and reputational assets provide a kind of bonding mechanism. (1) A broadcast or print media company can be expected to protect its significant investments by putting structures in place to carefully monitor its output. The downside is that the need for capital restricts entry to firms that can attract a mass audience. This restriction can filter out divergent views and prevent some markets and viewpoints from being served.

This model of journalism started to change with the rise of the Internet and the World Wide Web. Journalism was no longer exclusively the province of professionals. Anybody with a computer could launch a post to a website maintained on a server connected to the Internet and, potentially, a large audience. Viewers, however, had to find posts in the rapidly expanding heap. Some independent journalists, such as Matt Drudge, managed to be heard above the din, but most popular Internet news sites were those of professional newspapers and broadcasters.

The technology of amateur journalism has continued to develop. Amateur journalists (2) now not only can post their thoughts cheaply on the Web, but also can get the attention of significant numbers of readers. They use devices called "weblogs" or, more popularly, "blogs." These are, in general, series of web posts from a single web address with a common author or set of authors, often integrated with commentary on the post itself or on other blogs. According to one survey, (3) there are over 35.3 million blogs, with the number doubling every six months.

Blogs have started to generate significant legal issues. This Article develops an economic framework for addressing those issues, as well as those that are likely to arise as amateur journalism continues to evolve. The central legal question concerning blogs is how to balance the need for regulation against the risk that regulation will reduce the benefits of individuals' unfiltered participation in the public debate. Critics of blogs, including many professional journalists, see blogs' low entry costs and lack of conventional intermediaries as a threat to responsible reporting. As Jonathan Klein, now president of CNN, famously said, "bloggers have no checks and balances.... You couldn't have a starker contrast between the multiple layers of checks and balances and a guy sitting in his living room in his pajamas writing." (4) It arguably follows that bloggers should be regulated to ensure accuracy and fairness, perhaps even more heavily than conventional journalists.

This argument erroneously views the checks-and-balances issues from the perspective of a single blogger rather than what has been referred to as the "blogosphere." (5) Although anyone can enter the Web, not everybody can get noticed. The process of attracting attention, particularly through Google and other search engines, provides a neutral mechanism for establishing credibility that avoids conventional journalism's potentially biased filtering. (6)

Moreover, any benefits of regulation must be balanced against the cost of over deterring speech by bloggers, who usually have weaker incentives to speak than career journalists. Regulation may sharply reduce amateur journalism's comparative advantage over professional journalism in allowing the expression of diverse views and the dissemination of specialized information.

The limited benefits and high costs ot regulating amateur journalism apply most directly to regulation designed to ensure accuracy. However, blogs also present distinct problems of confidentiality and infringement of property rights that are not necessarily constrained by market mechanisms. Professionals may be more subject than amateurs to regulatory and extraregulatory sanctions for disclosing private information or disseminating copyrighted materials.

This Article focuses on the basic economics of amateur journalism rather than on a particular format or technology. The Article covers the subset of bloggers who are engaged in "journalism" in the sense that, like conventional newspaper and magazine reporters, they broadly distribute relatively short pieces that are intended to report or reflect on current events. In other words, the Article does not deal with the many people who use their blogs essentially as diaries, which usually are not intended for readers other than themselves and close friends and family. (7) Much of this Article's analysis applies to those who seek to contribute in some way to public debate rather than engage in personal reflection. Though bloggers tend to focus more on analysis or opinion than reporting of facts, (8) they are no less "journalists" in the broad sense of the term. In any event, many bloggers do report facts or present expert analysis, whereas many conventional journalists write opinion columns. (9)

In this Article, an "amateur journalist" is one who either is not employed at all, or writes as a sideline to some other business. Thus, an amateur journalist may be a professional in some line of work, including a professional journalist who blogs separately from her main job. (10) This distinction reflects the different incentives of one who is not engaged in the relevant work as if it were a paid career. Although the professional-amateur distinction does not depend on whether the work is done on the Web, amateur journalism is currently enabled by technologies that are specific to the Web.

Although the Article discusses the amateur-professional distinction from the perspective of recent technological developments, the same general issues will remain even as these technologies and formats evolve. Conversely, the economics of blogging may change even if formats remain the same. For example, web pages that mimic blogs' format may involve very different issues if, like traditional journalism, they are written and managed by professionals as an adjunct to professional media. These products are interesting for present purposes mainly to the extent that they illustrate the interaction between, and potential convergence of, professional and amateur journalism.

The Article proceeds as follows. Part I describes the technology of blogs, currently the leading form of amateur journalism. This description provides the basis for Part II's discussion of the economics of blogs. Part III then applies these general considerations to specific legal issues. Part IV concludes discussion of these issues.

1. THE TECHNOLOGY OF BLOGGING

   Before developing the economic framework, a review of some salient technical features of blogs is useful. A blog is built on a web page. Dave Winer, one of the first bloggers, provides the following definition: "A [blog] is a hierarchy of text, images, media objects and data, arranged chronologically, that can be viewed in an HTML browser." (11) Winer summarizes some important technical features shared by many blogs: (12)

   1. Each blog post has a title, date, and "permalink" that gives its web address.

   2. The home page has the most recent posts.

   3. Archives include the remaining posts, usually organized by category.

   4. The author may permit comments below each post.

   5. Really Simple Syndication (RSS) feeds let people who use "news aggregators" such as "Bloglines" (13) to "subscribe" to the blog and thereby disseminate posts quickly across the Web.

   6. Each blog post "pings," or notifies, change-aggregators such as "blo.gs" to signal the Web that the post has been made.

   7. A "trackback" linked to the blog post enables other...