Frank Pasquale is Loftus Professor of Law at Seton Hall Law School, where he is also associate director of the Gibbons Institute for Law, Science & Technology. In spring 2009, he was a visiting professor at Yale Law School, and he is presently an affiliate fellow of Yale's Information Society Project. He has served as a fellow at the Institute for the Defense of Competition and Protection of Intellectual Property in Lima, Peru. He joined the Seton Hall faculty after practicing at Arnold & Porter LLP, where his work included antitrust and intellectual property litigation. In 2009, Pasquale testified before the House Judiciary Committee (along with the general counsels of Microsoft, Google, and Yahoo), presenting Internet Nondiscrimination Principles for Competition Policy Online.
Distributive Justice Online
The Web 2.0 backlash has begun. For example, Andrew Keen voices a cultural conservatism uneasy with the new egalitarianism of networked media, claiming that established “media and culture industries’ [purpose] . . . is to discover, nurture, and reward elite talent.” Trebor Scholz worries that new intermediaries will recapitulate old patterns of exploitation. The labor of millions on their MySpace page results, most often, in nothing paid to them, and vast sums going to Rupert Murdoch.
Concerns about cultural formation and distributive justice risk being short-circuited by the opacity of many sites. I believe that those who contribute to Web 2.0 sites like Facebook and MySpace deserve a right to know how their contributions are ordered and distributed, and to contribute to that governance. We should be prepared to challenge “black boxes,” and not to simply accept site founders’ claims that they need to keep us in the dark about how they’re run because that’s the trade secret they need to keep ahead of competitors.
We also need to question the claim that sites are successful because of their great innovation; rather, their innovation may well be deemed to be great only because the site is successful. Hagiographers in the business press have many incentives to rationalize the existing order. Uncritical acceptance of these claims can make regulation and transparency seem more costly than it actually is.