CHEAP SPEECH AND WHAT IT WILL DO
           (How computer technology will transform the media)
                    by Eugene Volokh<*>, VESOFT/UCLA
        Presented (KEY-NOTE) at 1995 SCRUG Conference, Irvine, CA
              Published by The Yale Law Journal, May 1995.


                              Introduction

      It's easier for the rich to speak than it is for the poor.
It's also easier to speak if what you're saying, or singing or
drawing, has mass appeal.  Publishers will only invest in a product
if the expected returns exceed the expected costs.  If your work
lacks a wide audience, publishers may be hard to find; and even if
you can get a small publisher to back you, distributors may be
unwilling to let you use their scarce shelf space.  Getting access
to nationwide radio and TV is harder still.  People with unorthodox
tastes lose out, and even those in the mainstream suffer when
potentially interesting work isn't produced because of (rational)
predictions that it won't be a hit.
      Many have pointed to these problems -- the bias in favor of
speech of the rich, or of speech endorsed by the rich, and the
relative blandness of much mass media.<1>  The perfect "marketplace
of ideas" is one where all ideas, not just the popular or well-
funded ones, are accessible to all.  To the extent this ideal isn't
achieved, the promise of the First Amendment is only imperfectly
realized.  And, some suggest, because current First Amendment
doctrine is premised on an open-market metaphor that isn't valid,
the law should be adapted to this brutal reality.<2>
      My thesis is that (1) these two problems are directly linked
to the fact that speaking today is expensive; (2) new information
technologies, especially the "information superhighway"<3> or
"infobahn,"<4> will dramatically reduce the costs of distributing
speech; and, therefore, (3) the new media order these technologies
will bring will be much more democratic and diverse than the
environment we see now.  Cheap speech will mean that far more
speakers -- rich and poor, popular and not, banal and avant-garde
-- will be able to make their work available to all.
      To support this view, I will, in Part I, describe what I think
will be the likely information future and the market forces that
will make it inevitable.  I'll focus on how the infobahn will
change the existing forms of communication: music, books,
newspapers, magazines, and television.  (Though the new, truly
interactive media -- electronic bulletin boards, Internet mailing
lists, and Internet news groups -- are an extremely intriguing
topic, lack of space keeps me from discussing them.<5>)
      In Part II, I'll suggest some social consequences of these
technological changes, each of which might be relevant to thinking
about the First Amendment:
      (1)  {Democratization and Diversification:}  Many more people
will be able to make their speech widely available, including many
who can't afford to do so today; and listeners will have much more
choice than they have now.
      (2)  {The Shift of Power Away from the Intermediaries:}
Control over what is said and heard will shift from the
intermediaries -- publishers, book and music store owners, and so
on -- to the speakers and listeners themselves.  Private parties
will thus find it harder to use their market power to stifle
speech.  Listeners will find it easier to become well-informed
about the issues in which they're interested.  On the other hand,
it will be easier for people to choose only the information they
know they want, and to ignore other topics and other viewpoints.
And the extra diversity of speech may reduce social and cultural
cohesion.
      (3)  {Mixed Effects on Poor Listeners:}  Poor listeners will
be able to enjoy many of the benefits of the new order, but may to
some extent be shut out from other benefits.
      (4)  {Substantial Changes in Advertising in the Media:}
There'll be more no-advertising and low-advertising media;
advertising will be better targeted to people; newspapers will lose
a lot of classified advertising income; and political
advertisements might change significantly.
      Finally, in Part III, I'll briefly explore some of the
possible First Amendment implications of these changes.  My
ultimate conclusion is that the First Amendment of today will not
only work well with the new information order -- it will work
better than it ever has before.  But I'll also discuss ways in
which the new technologies might undercut some of the assumptions
that underlie the existing doctrine, and might lead to public
pressure for legal changes.


                                I.  Cheap Speech

                  A.  Music and the Electronic Music Databases

                           1.  The New System

                       a.  What It Will Look Like

    I want to start by discussing how the new technologies will
change popular music.  These changes may be less politically
momentous than the similar changes that I think will happen in
print and video.  But the music industry will probably be the one
that changes most quickly; and in any case many of the things I say
in this section -- about cost savings, increased choice,
information overload, and so on -- will apply equally well to the
others.
      The reasons for the changes will be very simple:  There's lots
of money in them.  The existing music distribution system is
inefficient, both for consumers and for musicians.  For consumers,
in particular, it has three problems:
      {Cost:}  Music costs more than it could -- consumers must pay
about $8-$15 for a new album, though musicians generally see less
than 10% of this in royalties.<6>
      {Choice:}  Consumers get a smaller selection than they could
-- many titles, especially ones that are relatively old or that
appeal to relatively small markets, aren't available in most
places.
      {Convenience:}  To buy music, a consumer has to take the time
and trouble to go to the store.
      And these problems translate into problems for musicians.
High cost, low availability, and inconvenience of buying mean fewer
sales.<7>
      These inefficiencies aren't the result of some sinister plot
or even of market irrationality.  They are an inevitable
consequence of the existing distribution system.  People today must
buy music on some tangible medium, such as tape or CD.  This means
they generally have to go to the music store (inconvenient), which
has only limited shelf space (lowering the choice).  And the
tangible medium has to be created, imprinted, distributed, and sold
(costly).
      The infobahn, once it delivers high-speed two-way
communications to private homes, is a far superior way of
delivering music to the consumer.  It will work something like
this:

      (1)  Using your computer -- or perhaps your TV set, with a
keyboard, a touch-screen, a mouse, or even voice activation -- you
access an electronic music database.  This database (actually,
there'll probably be several competing databases) will contain
virtually all the music that's available in electronic form.

      (2)  You choose the music you want, by album name, by song
title, by artist, by composer or songwriter, or by genre.  You
might even ask the computer for suggestions, based on the artists
or albums you tell it you like.  (This would be done using judgments
entered into the computer by reviewers.)  You can also browse
in some way, perhaps looking only at music of a particular kind, or
music that has gotten good reviews.  You can then play the music,
to make sure you really want to buy it.<8>

      (3)  Once you decide you like it, you download the album to a
digital recorder connected to your computer.  Your bank account
gets automatically debited.

      This would mean:
      {Cost:}  Once the music is recorded -- which even nowadays
costs fairly little<9> -- the only significant other costs will be
advertising costs, royalties, the cost of electronic distribution,
and the cost of the recording medium (which will be supplied by the
customer).  There'll be no need to spend money to create the
tangible recordings, ship them, and sell them.  Assuming cheap
electronic transmission (an assumption I'll try to back up
shortly), a CD-quality album may well cost as little as $3 to $5 --
a $1 royalty,<10> plus amortization of the recording costs and
advertising costs, plus the $1 or $2 that the customer will have to
pay for the recording medium.  An artist who's willing to pocket
less money to get more customers might be able to charge $3 or
less.
      {Choice:}  You'll have close to the whole music library of the
world at your disposal.  Copyright owners will be able to sell to
any infobahn-connected consumers, not just to the ones who have
access to a store that's willing to stock the work.  Because
there'll be no shelf-space limitation -- computer storage is cheap,
and getting more so -- it won't matter how esoteric your tastes
are; there'll be room for nearly everything.<11>
      {Convenience:}  You'll no longer have to drive to the music
store or wait in line.  You'll also be able to select what you want
more conveniently, because you'll be able to easily pre-listen to
what you're buying,<12> and because you'll have readily available
reviews.  The copyright owners will benefit from this, too, because
whenever consumers read a good review or like a song they hear on
the radio, they'll be able to buy the music instantly, or at most
have to wait until they get home.

                         b.  Why It Will Look Like This

      {Music Database Operators:}  There's a lot of money to be made
here.  In the United States alone, there were 425 million albums
sold in the first six months of 1994,<13> at an average cost of
over $10 each, including both the more expensive CDs and the
cheaper, lower sound quality tapes.  The sales volume should
increase as costs go down, and the convenience of buying the
product from home should raise volume even more.  Skimming even,
say, ten cents per transaction would mean, at today's rates, almost
$100 million yearly.
      Mail-order CD catalogs -- including computerized ones, such as
{cdconnection.com,} which is accessible either directly through
your modem or through the Internet<14> -- are already the first
step towards the system I describe.  They attract customers by
offering a large selection,<15> slightly lower prices,<16> and the
convenience of home shopping, partly countered by the inconvenience
of having to wait for the CDs to arrive by mail.<17>  Direct
downloading should provide even greater cost savings, selection,
and convenience.
      Setting up a music database shouldn't be much harder than
starting a mail-order CD business today; and it should be much
easier than starting a chain of music stores.  Like the U.S. Mail,
the telephone system, or the Internet, the infobahn should let any
business be accessible through it.<18>  The database operators will
have to buy computer equipment and design some software, but this
shouldn't cost much.  Even a database operator who gets only, say,
1% of the total market can make almost $10 million yearly by charging
a $1 mark-up (which will still save consumers a lot of money).
Ten million transactions yearly -- thirty thousand daily -- can
easily be handled even today with relatively cheap equipment.<19>
And the low cost of setting up a database should keep competition
high and consumer prices low.
      {Copyright Owners:}  There's also profit here for copyright
owners.  The new system will let copyright owners exploit markets
that were closed to them before: people who would pay, say, $5 for
electronic delivery of an album but not $10 for the album in the
store (cost);<20> people who didn't have access to stores that
stock the album (choice); and people who otherwise wouldn't have
taken the trouble to go the record store, or who had meant to buy
an album they heard on the radio but had forgotten about it by the
time they got to the store (convenience).  The electronic database
operators would easily be able to pay the copyright owners
royalties as high as what the owners get from music store sales, if
that's what it takes to get the owners to sign up.
      This will become especially true when, as some copyright
owners join, others will also find themselves pushed to join by
competitive pressures.  Once even a few albums become available for
$5 rather than $10, albums that sell for $10 will be at a
significant disadvantage.  Though music isn't fungible -- loyal
fans of New Kids on the Block might not think Tom Waits an adequate
substitute -- some product substitution will doubtless occur.<21>
      {Consumers:}  As I mentioned in the previous section,
consumers can also benefit greatly from the new system.  True, any
change -- especially one involving computerization -- risks
alienating customers, but the new system can be made very user-
friendly.<22>  The system needn't be any harder to use than an ATM;
and, as with the ATM, which has probably saved billions of person-
lunch-hours per year, the new system's benefits should be
substantial enough that people will learn to use it.
      Moreover, the physical advantages of music store layout -- the
ability to browse, and the possibility that one will stumble over
something good that one hadn't even thought of buying -- can be
made available on the home computer, too.  The software can easily
have a general "Browse" (or "Browse The Kind Of Music I Like")
feature, if this is what the users want.  The software can also
have other useful features -- such as a convenient pre-listen mode,
or cross-references to reviews<23> -- that many music stores do not
have.  And if people really need human help, the software can, at
the touch of a button, switch to a voice connection with an operator
at the central database location.<24>
      {Technology:}  The new setup will require a good deal of new
technology, but what's not here yet is coming soon.  There's
already music being sent through the Internet.<25>  Digitally
recorded music is simply a collection of data, no different (from
the computer's point of view) from your WordPerfect document.
There's no reason it can't be sent down the wires to your home.<26>
      Once the music arrives -- in data form -- at your home, it
will need to be recorded on some high-quality medium.<27>  Two
familiar media are nonstarters:  Normal analog audiotape is too
low-quality, and CDs are read-only.  But two recently introduced
technologies -- digital compact cassettes (DCCs) and MiniDiscs --
might have what it takes.  They both provide sound quality as good
as that of a CD; you should be able to download music to them from
your home computer, and then play it at home, in your car, or in
your Walkman.  Today they cost a lot,<28> but prices are expected
to fall with new innovations and economies of scale,<29> just as
they did for normal CD equipment.<30>
      To use this system, people will need a computer, but there are
already an estimated 30 million home computers installed today.<31>
The cheapest ones now cost about $700,<32> and, of course, this
money will buy you many more features than just home music
delivery.
      Moreover, even people who can't afford a home computer and a
home digital recorder might still use the system through public
music vending machines.  These machines may cost more than the home
versions, because they'll need to be more resilient (and probably
more theft- and vandalism-proof); a fragile keyboard interface
might have to be replaced by a touch-screen interface, or by
something similarly robust.  Still, this shouldn't be especially
difficult or expensive -- consider ATMs, video games, and public
lottery ticket machines.  So long as there are millions of people
who don't have home computers and home digital recorders, there'll
be plenty of incentive to tap this market.  And some music stores
already have computerized music catalog machines (called Muzes)<33>
-- the music vending machines would basically be that, plus an
infobahn hookup, a credit or debit card reader, and a recorder.
      Finally, it shouldn't be a problem to charge people
electronically for using the service.  The system could ask for a
credit card number when you access it -- much as is done today for
phone sales, or for {cdconnection.com} computer sales -- and get it
confirmed while you're shopping.  Better yet, it could charge you
through your infobahn provider, much as 900 numbers now charge
through the phone company.  Music vending machines could accept
credit cards or debit cards.  And even more convenient forms of
electronic payment may soon be available; electronic payment could
be a boon to many businesses, and the market demand for it has
generated a good deal of research and investment.<34>

           2.  How the New System Will Change What Is Available

      The new distribution technology will do more than just make
music cheaper and easier to get.  It will also radically change
{what} music is available.
      I've already mentioned one way this will happen:  The music
databases will provide access to albums that stores otherwise
wouldn't stock.  Even if there are 50,000 fans of a particular kind
of music throughout the country, a music store might expect there
to be only a handful of these people among its customers.  It can't
afford to use shelf space for material that appeals to so few
people.  But electronic databases can carry even albums that appeal
to only a tiny fraction of the market.  The result will be more
diversity for the listeners (even if not all of them may take
advantage of this diversity).
      But electronic home distribution will do more than eliminate
the bottleneck of music stores.  It will also greatly reduce the
power of the music production companies (the "labels").
      Electronic distribution will drastically lower up-front
distribution costs.  Even today an artist can make a commercially
viable master recording for as little as $1000.<35>  With electronic
distribution, once the master is made, no more money needs to be
spent on tangible copy production, distribution, or sales.  An
artist will no longer have to persuade a production company that
his product is worth the investment.  He'll be able to create it
himself and submit it to the electronic databases; and once it's in
the databases, the work will be as available as if it were in every
music store in the country.
      Many artists will probably still prefer that someone else pay
for recording and editing the album (especially if they want a
more-frills recording), and they'd probably like to have someone
invest in advertising.  Labels will thus still survive, and the
artists will still have to persuade the labels that their works
will sell enough to justify the investment.
      But the needed investment will be much less than it is today.
Less money will have to be recouped, so the labels will be more
willing to back material that has a small likely audience.  And
even if no one is willing to invest, the artists may still be able
to pay for the recording themselves, go without advertising, and
hope it sells through word of mouth, good reviews, or radio play
(especially the custom-mix radio, which I describe below).
Advertising is better for the artist than no advertising; but even
no advertising is better than the current system, where without a
label an artist essentially can't make the music available to the
public at all.

                 3.  Dealing with Information Overload

      The great obstacle to consumers getting what they want will
no longer be that there are too few products available; it will be
that there are too many.  The new system, by reducing barriers to
entry, will make much more material available to consumers.  Some
of it will be good; most will be junk.
      This, of course, isn't a new problem.  Tens of thousands of
books and CDs come out yearly.  Most of us have had the experience
of going to the store and not knowing what to buy.  But we've made
do, largely because the information overload has spawned
professionals -- reviewers, radio programmers, and decisionmakers
at the record stores and the labels -- who help us wade through the
material.  These people's job is to find what they think we'll most
like, and tell us about it, play it for us so we can decide for
ourselves, or try to sell it to us.
      The new system will reduce the role of the record stores and
the labels, but the other sources of information will remain.
Rather than sending its work to production companies, hoping for a
contract, a musical group will send it to reviewers.  The reviewers
will probably specialize in particular genres, and there will
probably be quite a few of them, of varying reputations.
      Some of these reviewers will, like music reviewers today,
write for newspapers, magazines, and such.<36>  Other reviewers
will select albums that they recommend and e-mail sample songs to
their clients.  The clients will then be able to listen to the
songs at their leisure, and, if they like what they hear, buy the
album (perhaps after first listening to the whole album) at the
touch of a few keys.
      Still other reviewers will write brief reviews -- perhaps even
just give numerical ratings -- for the music databases; they might
also compare the music to other albums or artists.<37>  This will
let database customers search for, say, "New Reggae that has gotten
a thumbs up from at least two reviewers," or "Songs that someone
who likes Tom Waits might enjoy."  This class of reviewers will
probably be paid by the music database operators.<38>
      {Custom-Mix Cable Radio:}  The most valuable review service,
though, will be something akin to cable radio today.  The virtue of
radio as a selection tool is that it's outside your control, and
can therefore familiarizes you with material you didn't know about.
This, of course, is also its vice.  You have some selection over
what's played -- you can listen to a given station or a given show.
But the selection is limited.  Even in a big radio market you might
find that no station quite satisfies you.
      What one would optimally want, I believe, is to specify the
radio mix more precisely, without sacrificing the element of the
unexpected and new that radio can provide.  One would like to be
able to say, for instance:  "I'd like a mix of '60s rock, rock
ballads from all decades, bluegrass, songs recommended by a
{Rolling Stone} reviewer, and songs that someone who likes the
Talking Heads, Paul Simon, and Concrete Blonde might like.  I'd
also like a small part of the mix to be random rock.  And {no
Steely Dan!}"<39>  People would prefer this approach because it
maximizes the chances that they'll like what they'll hear.  One
doesn't have to be particularly musically literate to know roughly
what one enjoys, and to want to hear more of it.
      It should be easy to get such a mix piped into your home.  You
could configure your preferences on your computer, and when you
choose "home radio" mode, the computer would pick up a semi-random
mix from the electronic databases and play it for you.  Within the
boundaries set by your preferences, the music would be selected
based on the reviews stored in the databases.
      Because you can pay for the music directly, you'll have the
option of either a free service with commercials, or a paid service
with no commercials.  There's no reason to think the paid service
would be very expensive, since there'll be no transmitter and FCC
license to amortize, and since the copyright owners, interested in
selling albums, will likely charge little for the rights.  Cable
radio is already available in some markets, though of course
without the preference configuration system; it costs $5 to $10 per
month.<40>
      You could also set up your computer to automatically store a
mix every morning onto a DCC or a MiniDisc; then, you could take it
into your car and play it all day in place of wireless radio.<41>
It might be a bit of a bother for a person to pop in a new cassette
or disc every night and take it to the car every morning. Nonetheless,
the extra effort on the consumer's part shouldn't be
prohibitive, especially if investing this effort could
substantially increase listening pleasure.<42>
      If a reviewer has 10,000 subscribers -- and recall that the
market is nationwide -- he can make a decent living charging them
$5 to $10 {a year,} plus copyright clearance costs, for a custom-
mix service based on his reviews.  Even with 1000 subscribers, the
reviewer can make some money for not very hard work.  Alternatively,
reviewers can accept advertising, or take money from people
who want their material reviewed.  Some people might not trust
reviewers paid by the musicians,<43> but subscribers will be able
to choose between those reviewers paid by musicians, those paid by
subscribers, and those funded by advertising.<44>
      Of course, like the other screening mechanisms, this will give
some people -- no longer the labels but now the reviewers -- some
power over what people will hear.  A band that once complained "Our
music is brilliant but the producers are keeping it off the market"
will instead say "Our music is brilliant but the reviewers can't
appreciate it."
      The power of reviewers, though, is based on people's approval
of their tastes.  Maybe the people's trust is misplaced, but it's
hard for artists to complain that the reviewers' power is
illegitimate.  Moreover, the reviewers' power is much less
exclusionary than the power of the labels:  If I don't like one
reviewer's taste, I can easily switch to another; if reviewers are
neglecting material that at least some listeners -- even small
groups of listeners -- would like, other reviewers will step into
the breach; and the low costs of providing reviews mean even small
markets will have many reviewers serving them.
    Though there might ultimately be thousands of reviewers providing
their own custom-mix services, I doubt this will cause much
of a reviewer overload problem.  Reviewers will probably specialize
in particular genres or subgenres.  Within those genres, people
will probably start with the most popular or best advertised mix.
People who are satisfied with their custom-mix service will stick
with it; people who aren't will easily be able to try someone else,
perhaps someone their friends recommend.


                4.  Will Production Companies Go Along?

      I mentioned above that electronic music databases will succeed
because both copyright owners and consumers can benefit from them.
But many sound recording copyrights are owned by the music
production companies.  If, as I suggest, production companies will be
hurt by the new system, will they be willing to license copyrights
to businesses that will likely displace them?
      Production companies may well be reluctant to let the
electronic music databases get off the ground; but it seems to me
competitive pressures will ultimately force them to go along.  The
new system gives copyright owners a new way of exploiting markets
they otherwise couldn't reach.  Even if it will prove generally bad
for labels in the long term, some small labels -- which may have
their sights set more on selling their existing stock rather than
on the long run -- will want to take advantage of it.  Musicians
signing new recording deals may want to take advantage of it, too,
because the new system is definitely in their interest; and if the
musician has a good enough bargaining position, the label may have
to participate even if it doesn't really want to.
      Also, the fact that copyrights in musical works aren't truly
exclusive may play a role.  A musician can make a recording of a
song without the composer's permission, so long as he pays a
compulsory royalty (today, 6.6 cents per song per copy).<45>  A
musician can even intentionally try to make his performance sound just
like another musician's performance, so long as he doesn't
physically copy the other's recording.<46>  Of course, people might
still much prefer the Beatles' {Let It Be} to Volokh-trying-to-
sound-like-the-Beatles' {Let It Be}; but the fact that new covers
of old standards constantly come out will weaken somewhat the
copyright monopolist's hold on the market.
      Finally, once the system gets off the ground, the lower cost
and extra convenience to consumers will lead to pressure for
reluctant labels to participate.  Even consumers who today are
willing to pay $10 for albums at stores may become reluctant to do
this once they get used to paying $5 from home.
      I recognize this is speculation -- this is a speculative
article -- but it seems this situation isn't that far off from
classic market competition.  To take an analogous case, prices
often fall not because the existing market players prefer that they
fall, but because new entrants, or small vendors looking for market
share, drive the prices down.  While large producers may try to
stop this, they generally can't.


                  B.  Books, Magazines, and Newspapers

                            1.  Introduction

      Text is even easier to send electronically than music, because
it requires a good deal less space, and therefore less transmission
time; it can even be transmitted feasibly through today's
relatively slow communications mechanisms.  Some newspapers already
put much of their news online.<47>  And there are already special
electronic-only news services, such as Clarinet Communications'
{ClariNews,} which contains everything from business news to sports
to a few columnists (such as Miss Manners) and cartoons (such as
{Dilbert} and {Bizarro}).<48>
      There are also libraries of electronic books.  Project
Gutenberg at Illinois Benedictine College has created a database of
160 books, including the Bible, {Alice in Wonderland,} and the
collected works of Shakespeare, all available free on the
Internet.<49>  The Internet Bookstore service sells new books from
various publishers, including Paramount MacMillan, Oxford
University Press, and the National Review.  The books sell for
about one-third of the print price, and take about 30 seconds to
download.<50>
      The problem, of course, is that computer screens are harder to
read than books.  Modern large-screen workstations, with black-on-
white display and proportionally spaced fonts, are better than the
old 24-by-80 non-graphical displays that most of us still use.
Still, they're not as easy to read as a book, and they certainly
aren't as portable.
      There are two ways to deal with this:  Some text might be not
only electronically delivered, but also printed out on home
printers; and laptop computers might be made so readable and
portable that reading text on them will be as easy as reading a
book.  I'll deal with these two possibilities in turn.

            2.  Short Opinion Articles and Home Printers

      I suggested above that, in the coming years, more and more
homes will have a computer, an infobahn connection, and probably
a music recorder connected to the computer.  But even more common
than the recorder will be the laser printer.  Laser printers can
generate text that's as readable as what you see in a newspaper;
today they cost as little as $400.<51>  And while people probably
wouldn't like hundreds of unbound, single-sided, 8 1/2"x11" sheets
of paper coming off their printers -- which is what would be
required for a complete book or newspaper -- one to five sheets
should be no problem.
      There are lots of people who make a living writing short,
periodic articles.  There are columnists, either daily or weekly,
such as William Safire, Mike Royko, and the like.  There are comic
strip artists.  There are also organizations, such as the ACLU, the
NRA, and many smaller ones, which periodically send out their ideas
-- or at least would like to send out their ideas -- to their
members or fellow travelers.
      Electronic delivery, assuming it's cheap enough, is a perfect
medium for these writers and their readers.  The set-up would be
simple:
      (1)  A consumer will run a program on his home computer that
will show him a list of available columns.  This list would be
indexed by author, by topic, and so on.
      (2)  He can then choose the column he wants; the cost of the
subscription will be automatically transferred from his account to
the writer's.
      (3)  Every night, or once every week, a column will be sent to
his computer, which will automatically print it.<52>
      The writers win under this system, because they can reach
readers they never could otherwise: people in areas where no
newspaper carries their column, and people who don't subscribe to
a newspaper.  Moreover, by cutting out the middleman, a columnist
may be able to get more per subscriber than he does today.  Readers
win for the same reasons.
      Electronic delivery is also perfect for the public interest
organizations.  Today, they have to communicate with people by
mail, a costly proposition.<53>  If the infobahn dramatically cuts
the cost, they can increase their impact by writing to their
members more often, and by reaching nonmembers, too.  If, say,
delivering three or four pages costs five cents, the ACLU could
offer people a weekly "ACLU Action Letter" for $2.50 a year.
Millions of sympathizers might well want to subscribe at that rate,
especially if they could do so in minutes from their home
computers.
      {Technology:}  There's every reason to think the cost of
transmitting the text will be extremely low.  Two information
infrastructures of today may be useful analogies:  According to a
recent estimate, the cost of transmitting 2000 bytes (about a page
of uncompressed text) even using today's relatively primitive
Internet technology is about 1/6 of a cent;<54> and local phone
calls are already free.<55>  As newer, faster delivery methods come
online, the cost of transmission should fall even below that of the
Internet.
      The big expense will probably be paper.  Paper nowadays costs
about 1 cent per page.<56>  A daily one-page column might thus cost
the consumer as little as 2 cents a day -- one cent for the paper
and one for the transmission cost and profit for the sender; this
comes to less than $10 a year.  The per-item paper costs will go
down if the consumer subscribes to more than one item, since the
computer can fit several columns or comics onto one page.  And even
if the transmission costs are somewhat higher, the result might
still be quite affordable.
      {Consumer Satisfaction:}  Consumers should also be satisfied
with this format.  Print quality should be up to snuff; subscribing
will be easy; the columns will arrive automatically on the printer,
with no extra keys to punch every morning.  Some people might
actually prefer a few pages of their favorite stuff to a thick
newspaper they must unfold and search through.
      Of course, some people may be unwilling to pay even pennies
for the columns.  They may already be subscribing to a local paper,
which is chock full of columns and cartoons and lots of other
things.  After paying $100 to $200 a year for the subscription,<57>
they may not want to pay more.
      Nonetheless, the great majority of people do {not} subscribe
to newspapers.  Many of them might not much like print, but others
don't want all the data newspapers provide -- they may find it
irrelevant, or they might get it from radio when they drive to
work, or they might not have time to read the newspaper every day.
They might well prefer paying, say, $25 a year for the few columns
and comics they really like.
      And even people who already subscribe to newspapers may be
willing to pay that much for the columns the newspaper doesn't
carry.  Twenty-five dollars a year is cheap as entertainment goes,
especially when it's entertainment that the reader knows he'll
enjoy, and that he can easily subscribe to on a whim.  Some people
may be deterred by the cost, but lots will not be.
      {Speaker Willingness:}  Finally, there should be no shortage
of willing high-quality speakers.  Public interest organizations
should be happy to use this medium, and there's every reason to
believe they can provide quality (if partisan) commentary to their
subscribers.
      Existing columnists might be a somewhat different matter.
William Safire and Judith Martin (Miss Manners), for instance,
already appear in hundreds of newspapers.  Their syndication
agreements may contain exclusivity clauses ensuring that the
columns won't appear in more than one newspaper in each market.
These newspapers might be reluctant to let these columns appear
electronically in the same markets that the newspapers serve.
      Nonetheless, competitive pressures should eventually make more
and more of the good columnists electronically available.  To begin
with, columns could be distributed with geographic restrictions:
You can subscribe if you're in Las Vegas but not if you're in Los
Angeles.  Columnists can thus give their newspapers exclusivity,
while still taking advantage of markets in which their columns
otherwise wouldn't run.
      Newspapers might be hesitant to go along even with this
scheme; the electronic distribution system competes with newspapers
as a medium, and newspapers may be reluctant to give any edge to
their competitor.  But recall that every subscriber for a one-cent
daily column could be $3 a year in a columnist's pocket.  If there
are 100,000 extra subscribers the columnist thinks he can reach --
and there are millions of people who read (not just have access to)
the highest-profile columnists -- that's a couple of hundred
thousand dollars.
      Persuading columnists to forgo this market could be an
expensive proposition for newspapers.  Some newspapers might be
able to get some columnists to agree not to publish electronically;
more might be able to get them to limit distribution to places
where the columns are unavailable in print.  But not all newspapers
would be able or willing to do this in the face of the substantial
economic pressure on the columnist to go electronic.
      Moreover, good opinion pieces aren't expensive to produce.
Not everyone can consistently write informative, readable prose,
but neither is the talent remarkably rare.  There are probably tens
of thousands of people who could do the task.  With the electronic
medium, each of them will be able to throw his hat in the ring.
      If the Safires and the Martins don't do it, others will.  Of
course, they'll have to find their audience, in competition with
thousands of others.  But finding this audience electronically may
be easier than finding a comparable audience with newspapers; and
even if most columnists fail, that'll just be because others will
succeed.
      {The Survival of Newspaper Columns:}  Note that, unlike record
stores -- which I think will be largely displaced by the electronic
music databases -- opinion columns in newspapers will survive.
People will still buy newspapers for news and will expect to get
their familiar columnists, too.  Moreover, an up-and-coming
columnist may still prefer to be accepted by a newspaper, with potential
access to millions of readers, instead of trying to find his own
following on the electronic services.  My claim is only that there
will be a thriving electronic opinion column market parallel to the
newspapers.

            3.  Ebooks and Books, Magazines, and Newspapers

      Home printers, however, will become less necessary once
computer screens are developed that are roughly as readable,
portable, and lightweight as books.  One possibility, which I call
an ebook, would be a display that is the size of a small book,
folds open like a book, and has the resolution of a book.
The technology isn't there yet, but it seems within reach.<58>
      You'd connect the ebook to your main computer and download
a book from an electronic database to your ebook.  Then you'd read it
as you would a normal book, but pushing a button instead of
flipping pages.  There'd be ways, of course, to do all the normal
"features" of a book -- go to a particular page, set a bookmark,
highlight some text, write a note to yourself on the margin, and so
on.<59>  And there'd be other features normal books don't have:

      *      You could search a book for a particular word or concept
             much more easily than with traditional indexes.

      *      Foreign-language books would have built-in dictionaries.

      *      You could easily carry around hundreds of books; the only
             limit will be the distribution of the material.<64>

A {Newsweek} could deliver news to people that's genuinely
current, rather than two or three days out of date.  Newspapers
will be able to update their stories as news comes in, and will no
longer have to be up to a day behind broadcasters.  Again, this
will help the consumer as well as the publisher; and once some
publishers do this, competitive pressures will push others to follow.
      Finally, ebooks will give newspaper publishers access to
geographical markets that are now closed to them.  Today, only the
{New York Times,} the {Wall Street Journal,} {USA Today,} and the
{Christian Science Monitor} have national home delivery.<65>
Ebooks will open the whole country, and eventually the whole
developed world, to all newspaper publishers.  While many regional
newspapers won't get much benefit from this, would-be national
publications -- say, the {Washington Post,} or a liberal equivalent
of the {Wall Street Journal}, or the entertainment section of the
{L.A. Times} -- certainly would; and so would some foreign newspapers,
which have a ready market of expatriates and others who are
professionally or personally interested in the foreign country.<66>
      {Technology:}  The ebook would cost much more than a typical
book.  The cheapest laptop displays wholesale today for about
$1100, with the price supposed to fall shortly to as little as $500
or $700.<67>  The price will probably fall further, but it seems
likely it will always remain fairly high.
      One could easily save that much, though, in lower costs for
the actual literary works themselves.  Working from a customary 10-
15% royalty,<68> and including a mark-up for editorial services and
electronic database costs, books that sell today for $5 to $20
could sell for as little as $1 to $4 each.<69>  And, of course, the
reader will save the costs of driving to the bookstore, trying to
track down a book that isn't on the shelves, and finding that the
book he wants is out of print.
      Scanning old books into computers is hard, but virtually all
new books published today must be put into electronic form in order
to be printed.  Publishers can easily send all new books to an
electronic database, so any infobahn-connected home will be able to
access them.
      The ebook wouldn't have the feel of a conventional book, even
if it has the look.  People who like feeling paper rather than
plastic under their fingertips may always loathe ebooks, or so I've
heard from friends with whom I've discussed this concept.
      On the other hand, people might prefer ebooks to bulky, hard-
to-unfold, ink-smearing newspapers.  And while some people will
always appreciate paper books (though probably not all paper books)
as objects of art, the main purpose of books is to communicate
information.  The ebook will, I think, be useful enough that many
people raised on paper books will switch to it.  But even those who
wouldn't read it for themselves would buy it for their children,
especially given the possible educational benefits of interactive
ebooks.  And the children, when they grow up, might not be as
nostalgic for paper books as today's adults may be.

              4.  How the New Media Will Change What Is Available

                               a.  More Diversity

      Even more than with music, the lower distribution costs will
change what is available, as well as how it's available.  High
distribution costs have meant media organs -- newspapers,
magazines, radio stations, TV stations -- control which
commentators are available and which aren't.  They control based on
their own political opinions, and they also control based on what
their readers are likely to want.  Even if, say, a million people
nationwide may want to hear the Libertarian -- or Socialist -- view
of things, there may be too few such people in each major market to
make it worthwhile for newspapers to carry columns that appeal to
these readers.
      Lower distribution costs mean columnists and organizations can
thrive if they appeal to even as few as several thousand people.
Say columns cost  cent for transmission, 1 cent for paper, and
cent for royalties to the author.  If even 30,000 people nationwide
are willing to subscribe to a daily column -- for about $7.50 a
year -- the columnist will make $150 a day, enough to keep body and
soul together.
      An organization like the ACLU, which might get 1 million
subscribers, can make $3.5 million yearly on these terms, enough to
hire editors, writers, and news gatherers, and perhaps even fund
the organization's other public interest activities.  Poor speakers
will get a soapbox; listeners with unusual tastes will find more
material that will please them; and the mix of available commentary
will be much less bland than it is today.
      The same will happen for books.  The new technologies will
make books cheaper and largely eliminate the problem of books being
out-of-print, but they'll also allow more books to be published.
Publication, in fact, will consist simply of the writer sending the
book to some electronic databases.  There'll be no publisher, no
veto power on the publisher's part, and no need for the book to
have mass appeal before someone will invest in it.
      The story for newspapers and magazines will be somewhat
different.  Though their distribution costs will fall, their
production costs will still be substantial.  The news will still
have to be gathered, written up, and edited.  But the total costs
will be lower than they'd otherwise be, so publications will be
easier to start and easier to keep profitable.
      {Some Examples:}  Electronically distributed short newsletters
already exist today, though -- for technological reasons -- not yet
in the form I describe.  Fax newsletters are already used for
timely, relatively low-cost distribution.  (Though faxing may cost
money for phone calls, it saves labor costs -- stuffing envelopes,
printing labels, and the like -- because it can be done automatically
by computer.)  Bankruptcy Creditors' Service sends
specialized newsletters to creditors of debtors-in-possession.<70>
{The Thoroughbred Daily News} circulates a daily delivered-by-6-am
newsletter summarizing the previous day's racing.<71>  These
services are expensive, but that seems to be just a function of
what the market will bear.  There's no reason they can't be cheaper
if the author and the customers so prefer:  Some religious
organizations, for instance, have started free religious fax
newsletters for their congregants.<72>
      Westlaw is another example.  Westlaw has several databases --
WLB (West's Law Bulletin), WTH-CJ (West's Topical Highlights on
Criminal Justice), WTH-LB (Highlights on Labor Law), and others --
which West updates daily with one-paragraph squibs on potentially
important recent cases.  The cases range from a few days to a few
weeks old.
      Using Westlaw's PDQ (Personal Directory of Queries) service,
I've asked that new additions to those databases be printed daily
to my local printer.  I've also configured special queries of my
own, for instance to every day print all new cases on free exercise
of religion.  Each morning, I go to the printer and get new
information that I might otherwise have never seen.  It's like a
daily newspaper chock full of articles for legal junkies like me.
      Of course, this would cost me a fortune if Westlaw didn't give
us teachers free access.  But Westlaw lets me access this service
for free only because the marginal costs of my use of it are
comparatively low.  If they had to print and mail the results of my
queries every day -- which would cost them a lot in labor and
postage -- they'd almost certainly not make the service available
free, even to law schools.
      Likewise, Minnesota gubernatorial and senatorial candidates
recently debated one another online, using an Internet mailing
list.<73>  A moderator asked a question; the candidates gave their
answers, in a few paragraphs each; and they then responded to one
another.  There was a message or two a day from each candidate.  I
suspect most of the "viewers" read the messages online, but many
could easily have configured their mail systems to automatically
print the messages, if that's what they preferred.<74>  The debate
didn't change the course of the election -- there were only 500
people watching -- but it did show the power of electronic
communications.  Once the candidates agreed to participate, there was
no need to persuade the media that carrying the debate would attract
enough viewers or readers.
      Similarly, Patrick Crispen, a public-spirited student at the
University of Alabama, recently ran a series of online Internet
tutorials.<75>  Crispen's announcement of his tutorials generated
62,000 subscribers.<76>  Obviously, the number would have been
different had the tutorials not been free, and because of current
Internet etiquette, he would have had a harder time advertising the
service.  Still, Crispen has, with no expenditure other than of his
time -- and of his university's computer resources, though I doubt
he put too much of a strain on them, especially since the messages
could have been routed during off-peak hours -- gotten an audience
many newspapers would envy.<77>
      Finally, when reporters at the San Francisco Chronicle and the
San Francisco Examiner went on strike in November 1994, the striking
employees -- unfazed by lack of the newspapers' printing plant
and distribution network -- produced their own paper, the San
Francisco Free Press, and delivered it over the Internet.  And the
electronic newspaper was in fact the first to break a story, which
got a lot of play during the November 1994 senatorial campaign,
about Senator Dianne Feinstein's alleged employment of an illegal
alien.<78>

                  b.  Custom-Tailored Magazines and Newspapers

      But beyond increasing the number of publications, ebooks will
also change the very concept of reading a magazine or a newspaper.
No one wants to read, say, the whole {L.A. Times,} with all its
stories about news, features, sports, entertainment, food, travel,
cars, and so on.  No one reads the newspaper cover to cover.  They
read most parts of some sections and some parts of others, and
throw out the rest.
      What people want are newspapers and magazines with stories
about the things that interest {them} (just as they want radio with
the songs they like).  They may want a newspaper which has, say,
the top twenty international stories of the day (with a special
focus on news from Africa), the top five national stories, the top
five science stories, the top ten law stories, news about football
and about the Los Angeles Dodgers, and, say, ten random stories
just for the unexpected surprise.
      Readers do want the stories to be professionally investigated,
written, and selected, perhaps by the same staff that brings them
the newspaper or the magazine today.  But they want them in the mix
they prefer.  And newspapers already realize people want this --
witness the local editions of various papers, such as the San
Fernando Valley edition of the {L.A. Times}.
      Today's newspapers and magazines are creatures of a particular
economic fact of the print age:  To print cheaply and distribute
cheaply, you have to print many copies of exactly the same thing.
If most readers in Los Angeles don't care about science or about
Angola, the paper puts in few stories about these subjects, and the
oddball readers lose out.  On the other hand, the front page is
covered with O. J. Simpson stories, and the handful of non-O.J.-
trial-buffs must wade through them to get to what they like.
      But electronic distribution doesn't require uniformity.  It's
a trivial software problem to let a user configure his own mix of
materials, and to assemble and index them for him.  Subscribers
will set up this mix at subscription time; people who don't want to
bother with this will get a default mix, but will be able to change
it whenever they like.  Moreover, there's no reason the subscribers
wouldn't be able to mix stories from different stories -- local
news, for instance, from the {L.A. Times,} international news from
the {New York Times,} and national and business news from both the
{New York Times} and {Wall Street Journal,} to get two different
perspectives.

                     5.  Dealing with Information Overload

      {Opinion Articles:}  With opinion articles as with music,
there'll soon be many more options than most consumers will know
how to deal with.  There's something valuable -- as well as
limiting -- in the fact that your daily paper gives you, say, four
op-ed pieces rather than forty thousand.
      But as I mentioned in the music discussion, information
overload is not a new phenomenon.  There are far more books than any
consumer can personally browse, and yet we're quite happy with
this, and don't clamor for less selection.  We generally prefer to
go to bigger bookstores rather than smaller ones, even though
smaller ones will have done some extra preselection for us.
      True, we partly rely on the screening done by publishers,
who'll at least have rejected the total garbage, but we also rely
on reviewers, on word-of-mouth, on our familiarity with particular
writers and artists, on the possibility of browsing, and on
advertising.  These mechanisms will still exist for the new media,
even if publisher selection doesn't.  People will still read
reviews, and hear about good items from friends.  People will also
be familiar with existing popular columnists, and with existing
organizations that are starting newsletters.
      Moreover, electronic distribution can make possible new
selection devices.  One particularly useful new service -- similar
to the custom-mix radio I mentioned above -- would be a subscription
that delivers a different column every day, perhaps selected
by general topic or by political perspective.  Thus, together with
my daily William F. Buckley, Libertarian Report, and Column
Left/Column Right on the First Amendment, I could also get a
different center-to-right-wing column every day, and twice a week
random (but well-regarded) columns from all sides of the spectrum.
      When I find a column I really like, I might subscribe to it,
or perhaps order a few more days' worth to see if I really like it.
And the service could be even cheaper than normal subscriptions,
because the columnists would probably be willing to waive their
royalties in order to get the exposure the service would provide.
It might be cheaper still, or free but for the cost of paper, if
the service takes advertising, or takes money from the columnists
in exchange for reprinting the columns.  This latter approach will
create a potential conflict of interest, as well as a barrier for
poor columnists (though not a very high one); but there'll probably
be both free and pay services, with the pay services touting their
independence, much as {Consumer Reports} and {Ms.} magazine, which
don't accept advertising, do today.<79>
      {Books:}  In the book market, reviewers will play an even more
critical role than they do today.  Moreover, as with music, their
recommendations will have more influence because they'll be easily
available when the customer is buying the book.  Electronic
bookstores will let customers select only those books that were
professionally reviewed, or books reviewed by particular reviewers
(or reviewing corporations) -- for instance, "new Science Fiction
books which got positive reviews from reviewer X, Y, or Z."
      A writer would, instead of sending his manuscript to a
publisher, send it to several reviewing services specializing in his
field.  Most reviewing services probably wouldn't write full-length
reviews; instead, they'd give the book some sort of grade, and
maybe a one-paragraph summary and critique for the good ones.  They
might in particular compare it to books by well-established authors
(e.g., "people who like Larry McMurtry would probably like this
one").
      The services might charge the author for their efforts.  Rates
would start at a minimum which compensates for the reviewing
employee's time -- perhaps as little as a few hundred dollars -- and
would rise as the service becomes more and more popular and can
thus charge extra for its name.
      In a sense this will reinvent part of today's publishing
business, and lead to some of the costs associated with it.
Publishers perform an important screening function, which will
still have to be performed.  Publishers also perform an important
editing function, and there may well be editing services or
freelance editors, who'll ask for either a fee or a royalty (which
may not be possible for books that seem unlikely to succeed).
      Thus, there'll still be organizations with the power to sink
a book -- here, reviewers rather than publishers -- and there'll
still be up-front costs -- reviewing and editing fees rather than
printing costs.  But the costs will be much lower, and the
reviewers will be more diverse, will represent more tastes, and
will be better able to serve niche markets.

                           C.  Video (TV and Movies)

      "[T]hough the perceived defects of [television] are many,
. . . they can be more or less subsumed in two words: {vast
wasteland}."<80>  Newton Minow, then chairman of the FCC, coined
this pejorative in 1961, and it has (justly) stuck.
      But if your local bookstore let you buy, at any given hour,
only five books -- each chosen for maximum appeal to 250 million
people -- you'd think of publishing as a vast wasteland, too.  This
would remain true even if the store had fifty books, or maybe even
500 books to match the touted 500-channel cable system of the
future.  There'd be more chance that you'd get what you want,<81>
but still you'd often be dissatisfied.<82>
      The problem with TV isn't lack of material.  There's been lots
of excellent television created in the medium's almost 50 years.
Add to that the many great movies that have been made, and there's
enough for each of us to be able to watch for hours every day and
still only get the stuff we enjoy.
      The problem is that broadcasting can't get you what you want
when you want it.  It can only get you what millions of people
prefer,<83> and it can only give it to you at the time chosen by
the broadcaster, not the time chosen by you.  Five hundred channels
may help, because they may make room for material that appeals to
only, say, a few hundred thousand people; but that will still be
inadequate.<84>
      What people would like, I believe, is to choose from home --
at any time convenient to them -- any TV show or movie they want,
just as they can choose a book in a bookstore, only more
conveniently and less expensively (or even free; the medium might
still be advertiser-supported).<85>  Some people might still want
someone else to decide; they might, for instance, ask for a random
comedy, or a random comedy praised by a given reviewer.  They might
even ask for the latest episode of a particular new show, just as
they do on TV today, though at the time that's convenient for them.
But they'll be the ones who choose, or choose to leave the choice
to someone else.
      This, of course, is "video-on-demand," which is already being
tested -- in a primitive form -- in various markets.<86>  Many
current video-on-demand proposals have gotten a skeptical market
response.  But the barriers all seem to me to be a function of
current technology -- the degree to which today's homes are
properly wired (or fibered) for this service, the current costs of
the equipment, and so on.  The question, I think, is only whether
video-on-demand will start arriving now or in several years.
      {Effect on What Will Be Available:}  As with the other media,
this customization will give people access to much more diverse
material.  Today, to be broadcast on TV, new programs must have an
expected audience of millions.  To justify access to the scarce
shelf space available in video stores, videotapes also need a large
market.  Lots of good stuff that doesn't appeal to a large enough
audience never makes its way to the TV stations or video stores.
      The new system should also increase the amount of new material
being made.  The cost of producing high-quality, high-production-
values entertainment -- from $500,000 to over $1 million per
hour<87> -- will slow down this diversification.  So long as
production costs remain high, each new program will still have to
appeal to a lot of people.<88>  Still, it will probably need less
of an audience than it does today, when producers face both high
production costs and limited distribution channels.
      Moreover, some video programming -- talk shows, talking heads
shows such as the {McLaughlin Group,} stand-up comedy, and some
kinds of sporting events -- costs comparatively little to
produce.<89>  Production of these shows ought to mushroom.


                            II.  Social Consequences

                    A.  Democratization and Diversification

      The new technologies I outlined above will, I believe, both
democratize the information marketplace -- make it more accessible
to comparatively poor speakers as well as the rich ones -- and
diversify it.  Of course, the power to make one's speech globally
available isn't the power to make it globally heard.  One still has
to get people to listen, either through advertising or word-of-
mouth or good reviews or other devices.  Advertising will still
cost money, and well-funded bands or columnists or newsletters will
attract more readers than poorer ones will.
      Nonetheless, while advertising is obviously useful, it's not
strictly necessary; many products are sold today in large part
through word-of-mouth or reviews (especially when one considers
radio as the reviewing medium that it is).  Wealth will certainly
remain relevant in the new information structure, but it will be a
good deal less relevant than it is today.
      Likewise, a greater diversity of available speech need not
lead to diversification of what is actually consumed.  It's
possible that after the infobahn comes up, most people will still
consume largely what they do today.  But at least those people
whose tastes differ from the majority's will be served.  They
might, of course, continue to complain about the majority's bad
taste; but that's something no technology can do much about.

  B.  Shift of Control from the Intermediaries and What It Will Mean

      The trends I've pointed to have one thing in common:  They
tend to shift control from intermediaries -- record labels, radio
and TV station owners, newspaper, magazine, and book publishers --
to speakers and listeners.
      The relatively low cost of electronic distribution gives more
control over what is said to speakers:  A speaker need no longer
satisfy the intermediaries before being allowed to speak.  The
relatively low cost of {personalized} electronic distribution gives
more control over what is heard to listeners; a listener may select
his own mix of music and information, rather than taking what the
intermediaries give him.

                       1.  Shift of Control to Listeners

      {Ease of Getting More Information:}  The shift of control to
listeners will, I think, make people better informed about the
things in which they're interested.  Say I want to read science
stories, news about Eastern Europe, and opinions about the crime
problem.  The newspaper today gives me only as many stories on
these topics as a typical reader might want to see.  But I want
more!
      With the new technology, I'll be able to get as many of these
stories as I want, either through short newsletters (which will be
cheap and easy to subscribe to), or through configuring for myself
the mix of the stories in my morning paper.  I may even be able to
get important source material, such as the complete text of a
speech, or a document, or an interview.  Such material rarely gets
printed in its entirety, because space and the patience of most
readers are limited.  But it can easily be made available
electronically to those who want it.<90>
      {Ease of Being Closed-Minded:}  On the other hand, part of the
value of the mass media is that they expose readers to topics and
viewpoints they {didn't} select.  A reader who thinks he doesn't
care about science might come across a science story on the front
page and find it interesting.  A liberal reader might stumble
across a conservative column in his daily paper and be persuaded by
it.  But both these stories might not have been ones the reader
would have subscribed to had he had the choice.
      Of course, with the new system, people who want a variety of
topics or views will be able to easily get them.  Wise readers will
probably request some general news for their mix, rather than just
saying "give me international news, law, and science, and nothing
else.  Conservatives could subscribe to well-regarded liberals,
and vice versa.  Some columnists will team up with others to
produce two-sides-of-the-issue columns, much like the Column Left
and Column Right in some newspapers today, or the TV show {Cross-
fire}.  There may well be more multi-sided presentations available
under the new system than there are today (just because there'll
generally be more options).
      Many people, though, might not want a variety of topics, and
especially a variety of views.  Most of us to some extent prefer to
listen to people with whom we agree.  Often we won't even read
opposing views in a newspaper that we've already bought; and we're
especially unlikely to pay money -- even small sums -- for opinions
with which we know we disagree.<91>
      Every reader, of course, has a right to be closed-minded; and
people are already plenty closed-minded today, so the new
technologies might not make a major difference in this.  But they
may at least marginally increase the degree to which people shield
themselves from topics and opinions they think they dislike.
      {Common Culture:}  Another part of the value of the mass media
is that they give viewers a shared base of information.  Every
evening millions of people watch network news; every week they
watch more or less the same TV shows.  When they talk about events
with friends or coworkers, they at least have a starting point for
discussion.
      But as the sources of information and entertainment become
less generic and more custom-tailored, people may lose some of this
common ground.  They may find themselves having fewer shared
cultural referents, and less common knowledge about current events,
even if they have more knowledge about the events that interest
them most.<92>  People who read the Democratic Party's organ and
people who read the Libertarian Party's organ might have a hard
time even speaking the same language about the issues.
      Again, those who want to share common ground with their peers
may choose to continue listening to Top-40, or watch news shows
that aim for a well-rounded, mainstream view of the world.  But
many people won't do this.  It's hardly likely that American
society will fall apart because of this, but it's at least possible
that more diversity of sources might mean less common ground and
less social cohesion.<93>

                        2.  Shift of Control to Speakers
                   The Decline of Private Speech Regulations

      While American government agencies generally don't regulate
speech, private parties do.  Publishers sometimes refuse to publish
material they disagree with.  Private groups sometimes pressure
publishers to drop certain material.  And even the viewpoint-
neutral reluctance of publishers to accept work that appeals to too
few consumers has the effect of shutting out political fringe
groups on all sides of the spectrum.
      The shift of control from publishers to speakers will greatly
weaken these private speech regulations.  When speech comes
straight from the speaker to the listener, there's no one in
between to regulate the speech, and no one for various groups to
pressure if they think the speech is reprehensible.  Threats of
boycotts may work against diversified companies, which sell
information to many markets; someone can tell, say, Time Warner
Records "If you carry Ice-T's {Cop Killer,} I won't buy other Time
Warner material."  But telling Ice-T "If you keep singing {Cop
Killer,} I won't buy your other material" probably won't work --
Ice-T knows that people who say this probably wouldn't buy his
music anyway.
    There's no consensus today about whether such private regulations
are proper.  Some consider them almost as dangerous as
government censorship; others argue that private pressure on
speakers is legitimate and sometimes even laudable.<94>  But
regardless of one's normative judgment on this, the new information
media will make it much harder for such private speech regulation,
good or bad, to take place.
      Of course, there'll still be some intermediaries.  Though the
power of publishers will wane, the equivalents of the music stores
and bookstores -- the music databases, and the computer systems
that people access to subscribe to opinion columns, to buy books,
or to get video-on-demand -- will remain.  They could refuse to
carry certain kinds of speech, and various groups could pressure
them into doing this.
      But such a refusal will probably have a limited effect on the
speech that's being rejected.  Each infobahn-connected home will be
able to access every computer service in the nation.  If one
service refuses to carry, say, gangsta rap music, others can
instantly take advantage of the resulting market.
      And starting a new nationwide electronic service should be
comparatively cheap, certainly cheaper than starting a nationwide
chain of bookstores or music stores.  Today, it's conceivable that
all the major stores in an area might refuse to carry a certain
product.  But even if all the mainstream computer services reject
a particular genre, other services -- say, an all-gangsta-rap
service, or even a service specializing in materials that others
don't carry -- could easily spring up.  The private speech regulations
will remain only where there must be intermediaries who
select what gets distributed, for instance in newspapers, whose
editors will still control who writes for them.<95>
      Another form of speech regulation I alluded to above --
regulation by poverty and unpopularity -- will also become much
less potent.  Many extremist groups have relatively little ability
to speak out because they don't have enough of a base to fund their
speech.  At least some KKK chapters, for instance, are dormant
largely because they're broke.<96>  Cheap electronic distribution
might mean that not only the ACLU or NRA newsletters, but also the
KKK and Communist Party newsletters, can be sent to millions of
subscribers.<97>  One would hope these fringe groups will find few
people willing to listen, but their voices will be amplified along
with the voices of worthier organizations.
      Finally, the new media might affect one more sort of speech
regulation: self-regulation for accuracy.  It's generally assumed
that intermediaries -- publishers, editors, and broadcasters --
help make sure the things we read and hear are actually true.  They
might, for instance, fact-check articles, or refuse to work with
writers who are known to be unreliable.
      But when speakers can communicate to the public directly, it's
possible their speech will be less trustworthy:  They might not be
willing to hire fact-checkers, or might not be influenced enough by
professional journalistic norms, or might not care enough about
their long-term reputation for accuracy.  Talk radio, for instance,
has been criticized for being unreliable in large part because of
how democratic and spontaneous it is.<98>
      It's not clear, though, what the magnitude of this would be.
The new technologies will give some untrustworthy speakers a forum
that responsible editors would deny them, and some people will end
up misinformed by these speakers.  But the majority of new speakers
may be no worse than most media of today.  Many leading publishers
actually don't employ fact-checkers;<99> and while today's media
aren't notorious for intentional falsehoods, misunderstandings and
misreporting seem quite common -- consider how often we all find
errors in newspaper articles about subjects we know well.
      At worst, the new technologies may supplement some fairly
unreliable publications with other, perhaps more unreliable, ones.
At best, they might allow the publication of more trustworthy
materials -- for instance, science news publications put out by
specialists, rather than generalist journalists -- that couldn't be
printed before.

                               C.  Poor Consumers

      When I say the new technologies will shift power to listeners,
I mean of course listeners who can afford the new technologies.
But what about consumers who can't buy a computer, a digital
recorder, a printer, an ebook, and an infobahn hookup?
      {Music:}  Poor consumers should be benefited by electronic
music delivery.  Even if they can't afford the hardware, they
should be able to buy their music from public vending
machines.<100>  While it may cost more to buy from these machines
than it would to buy from home, it should still cost less than it
does now.  Of course consumers will still need devices that play
these recordings, but there's no reason to think they'll end up
costing more than about what CD players do now.
      {Short Opinion Articles:}  Opinion articles may be different.
Home delivery of selected opinion articles will work because
subscribing to the articles and getting them each morning is easy.
If your favorite columns are there on your printer when you wake
up, you'll read them.  But if to get them you must go every day (or
even every week) to a public terminal, select what you want, and
wait for it to print, the result will be much less useful to you.
And the cost of such public access may be a good deal higher as a
proportion of the normal price than it would be for music.
      On the other hand, this system might not be much worse for
poor people than the existing one.  People who can't afford the
needed computer hardware might also be unable to afford a $200
yearly subscription to the {Los Angeles Times}.  And with over 80%
of all U. S. households owning VCRs,<101> the affordability of home
electronics to even the not-so-rich shouldn't be underestimated.
      {Books, Magazines, and Newspapers:}  Books, magazines, and
newspapers are a still different matter.  It's easy to imagine
public terminals that download such materials -- especially books
and magazines -- onto your ebook.<102>  They won't be any harder to
use than a bookstore is today, and the work itself will be cheaper
than it is in a bookstore.  However, the ebook itself may be a
sizable up-front investment; and it may be particularly hard to
afford for parents of small children, because the children may be
likely to break it or lose it.
      The new technology may also require a rethinking of a
substantial subsidy the government now provides for readers: public
libraries.  Even if electronically distributed books cost much less
than books do today, many people would still prefer to borrow the
books for free.
      How would libraries be able to lend electronically distributed
books?  Under the model I described above, a "book" will no longer
be a tangible item, not even, say, a floppy disk.  To buy a book,
you'd just download it onto your ebook.  If a library, though,
downloads the book for you, you haven't borrowed the book -- you've
gotten it permanently, a clear copyright violation.
      But even if a library tries to better emulate the economic
effects of conventional library lending -- embeds a three-week
expiration date in the electronic data,<103> and refuses to lend
the same book to more than one customer at a time -- this would
still violate copyright.  Copying electronic data onto a computer,
even in a way that has the same market effect as lending of paper
books by today's libraries, is a copy and almost certainly an
infringement.<104>  While Congress can change this scheme,
copyright owners may lobby hard against it.  They already look with
envy at some other countries' copyright laws, which provide for a
royalty to be paid every time a book is lent.<105>
      On the other hand, the new technology may greatly decrease
many of the costs of running libraries -- shelf space, reshelving,
and so on.  Some accommodation might be reached in which authors'
organizations might agree to some blanket licensing agreement,<106>
or to changes in the copyright law; the money saved by libraries on
paper books could be spent to compensate authors on a per-loan
basis.<107>
      Used book stores, another device through which people today can
get books cheaply, will also run into problems in the ebook age.
It's not copyright infringement to resell a paper book,<108> but it
almost certainly would be infringement to copy a book from your
ebook disk to someone else's, even if you delete the original.<109>
      Changing the law to allow copy-and-delete transactions -- on
the theory that they are just like selling a tangible copy -- may
be unfair to authors.  Used book sales today have a limited effect
on new book sales, because used books are less desirable than new
books (they're often worn and torn), and because used bookstores
often don't have large or well-arranged stocks.  But if used
electronic books could be sold, they could substantially undercut
sales of new books:  Used electronic books are as good as new ones;
national electronic used bookstores could have huge selection; and
obviously they wouldn't need a lot of clerks to keep the books in
sorted order.
      Authors could legitimately complain that allowing sales of used
electronic books will cost them much more than allowing sales of used
paper books does today.<110>  AW legislative or contractual compromise
could be reached -- for instance, a royalty could be imposed on each
resale of a used electronic book -- but it might be not easy.
     {Video-on-Demand}: Finally, video-on-demand probably will not,
once it's a mature technology, be particularly burdensome even
for relatively poor people.  While it might require new TV
equipment, and again the infobahn connection, there's no reason to
think it will eventually cost much more than a TV, a VCR, and a
telephone -- staples of American homes -- do today.  This is
especially true because video-on-demand is as good an advertising
medium as commercial TV is.

                  D.  What Will Happen to Advertising
                      (Both Commercial and Political)

      The new technologies will have at least three significant
effects on advertising:
      First, it will be easier and cheaper to have advertising-less
media.  Consumers generally don't much like commercials on radio
and TV, because (unlike in newspapers) the ads interrupt the
program content.  Some consumers dislike commercials enough that
they'd be willing to pay extra for advertising-less media, as they
now do for some cable movie channels.
      Other consumers would prefer to have free (or cheaper)
entertainment, and would be willing to sit through the commercials to
get it.  Still, as the costs of providing services -- such as
custom-mix cable radio -- fall, the amount of advertising on free
services will fall, too, as services compete with one another based
on how few commercials they have.<111>
      Advertisements in newspapers and magazines are less intrusive,
so there'll be less pressure to reduce their quantity.  Some
publications might refuse ads to prove their independence from
outside pressure,<112> but this seems unlikely to become common.
      Second, newspapers will lose a vast amount of classified ad
revenue.  This revenue accounted for 40% of total newspaper ad
revenue in the late 1980s,<113> and some project it will reach 60%
by 2000.<114>  But paper classifieds are far inferior, for both
buyers and sellers, to electronic classifieds that are untied to
any newspaper.
      A database of, say, all apartments for rent in the city would
be much easier to search through than a newspaper classified
section:  The renter could, for instance (from a public-access
terminal<115>), ask for an instant list of all the 1-bedroom
apartments for less than $850 per month within 3 miles of UCLA, perhaps
plus apartments that are a bit cheaper but a bit further, or more
expensive but closer.<116>  The list should be more complete,
because the information will be easier and cheaper to post.  And
the list should be timelier -- the information will become
available as soon as the landlord posts it, and can be removed as
soon as the apartment is rented.  Electronic classifieds are better
on all counts than paper ones, and newspapers will have to adjust
to a huge revenue loss when the paper classifieds stop coming
in.<117>  The loss of classified revenues, coupled with the cost
savings and opportunities for extra profits from electronic
distribution, should help push newspaper publishers into going
electronic.
      Third, individualization of the media will let advertisers
target customers better than ever before.  Instead of one newspaper
with ads aimed at several hundred thousand people, each
electronically delivered newspaper will have ads calculated to fit
the particular subscriber's profile -- age, sex, and whatever other
information the newspaper gets at subscription time, or can deduce
from the mix of stories he's ordered.<118>  The same would be true
for the other media.
      The greater ease of targeting ads may also change the way
political campaigns reach voters.  This is already happening:  In
one political consultant's words, "if you want to talk to women,
buy `Sisters' Saturday night; men, you buy ESPN; seniors, `Murder
She Wrote'; everyone, [the local football team] or `60
Minutes.'"<119>  Another consultant points out that "working mothers
. . . don't watch TV regularly, but do sit in traffic jams --
which makes radio a good buy."<120>
      When targeting becomes even easier, candidates can speak even
more directly to particular voters, with ads specially targeted at
those people.  This would give voters more communications about the
issues that matter to them; and voters who'd want deeper treatment
of the issues might get their wish, as campaigns try to avoid
alienating them with shallower commercials.
      On the other hand, targeted ads might in some ways be worse
for the democratic process than mass ads are.  The targeted ads
might appeal more to parochial interests and prejudices and less to
the common good; and candidates might be able to make arguments to
small groups that they'd rather not make to the public at
large.<121>
      These are, of course, only tentative guesses; still, it seems
likely that the demassification<122> of the mass media will
substantially change the way both products and politicians are
advertised.  To the extent advertising is important to political
campaigns, these changes ought to be considered.

              III.  A Few Words about the New Media and the First
                                   Amendment

                            A.  Existing Flashpoints

      The proto-infobahn of today -- the Internet, bulletin boards,
and various commercial services -- has already generated quite a
few First Amendment controversies.  Professor Branscomb has ably
summarized many of them in another article in this Symposium.<123>
      Some of these may only be transplants of conventional questions
into a new but essentially similar environment.  For
instance, there's already a lively debate about the propriety of
regulating sexually harassing speech;<124> harassing speech on
electronic bulletin boards might just be a special case of this.
The mens rea requirements imposed by the Supreme Court on libel
actions may be adequate for protecting bulletin board operators
from liability for messages whose contents they had no way of knowing.
<125>  Likewise, the advent of electronic communications may
change how child pornography is distributed,<126> but I don't see
how it would change the rules relating to child pornography.
      Other such conflicts, though, may well require at least some
changes to existing doctrine, because they reflect ways in which
the new media genuinely differ from the old.  The law of speech is
premised on certain (often unspoken) assumptions about the way the
speech market operates.  If these assumptions aren't valid for the
new technologies, the law may have to evolve to reflect the
changes.
      Newspapers, for instance, are today held strictly liable for
copyright infringement;<127> part of the reason for this is that
they have broad control over what they choose to print.<128>  When
this assumption of control fails, as it does for electronic
bulletin boards, strict liability may be inappropriate and perhaps
even unconstitutional.<129>  The courts that developed this rule
might not have consciously thought about this assumption, and it's
certainly unlikely that they thought about it in a First Amendment
context.<130>  But it seems to me that in a world where this
assumption was false, courts could well have developed -- and could
still develop -- a different rule.
      Likewise, as the economic constraints on sending tidal waves
of unsolicited mail are removed, legal restrictions may have to
take their place.  Today such restrictions might be seen as
unconstitutional, at least as to noncommercial speech.<131>  But if
indeed e-mailing is next to free, the "short, though regular,
journey from mail box to trash can" may cease to be "an acceptable
burden, at least so far as the Constitution is concerned."<132>
Similarly, in the obscenity context the "community standards" test
presumes sellers know which community they are selling to.  As
computer networks make it possible for people to get obscenity
without so much as supplying a mailing address, the very concept of
local community standards may become obsolete.<133>  Still, all
these seem like small changes, ones that don't cast into doubt the
basic rules of the First Amendment: the general requirement of
content-neutrality, the exemption of certain kinds of speech from
protection, the lower protection given to commercial speech, and so
on.<134>
      But if the discussion in Parts I and II is correct, the new
technologies will change the speech market much more dramatically
than we've seen so far.  Today's First Amendment law evolved in a
media world which had particular characteristics.  Most of the
speech that mattered was carried by a relatively few established
outlets.  Extremist speakers had fairly little access to the
public.  The main news sources -- TV programs and newspapers --
provided a mix of ostensibly nonpartisan information about a
variety of topics.  The limited set of sources gave people a more
or less common base of information to argue from.  These underlying
characteristics are, in my view, more significant than the ones
discussed in the last few paragraphs.  If they change, what
consequences will this have for First Amendment law?

                               B.  A Rosy Future

      Let me begin my answer with the good news.
      Existing First Amendment doctrine is founded on some rather
idealized premises.  "[T]he best test of truth is the power of the
thought to get itself accepted in the competition of the
market."<135>  "[T]he fitting remedy for evil counsels is good
ones."<136>  People who are offended by speech may "effectively
avoid further bombardment of their sensibilities simply by averting
their eyes."<137>
      These premises may often be true, but sometimes they simply
aren't.  Sometimes the supporters of a thought have millions of
dollars, while opponents are too poor to effectively compete.  Some
markets are monopolized by one speaker, for instance a single cable
system.<138>  Good counsels from poor speakers may often not be an
adequate remedy for evil ones from richer, louder speakers.<139>
And Justice Stevens had a point:  "[S]ay[ing] that one may avoid
further offense by turning off the radio . . . is like saying that
the remedy for an assault is to run away after the first
blow."<140>  Unless offense is simply constitutionally irrelevant
(in which case the possibility of averting one's eyes or ears
shouldn't matter), once the words are heard the injury is complete.
      The Court has heard these arguments.  It has accepted that
they may sometimes be valid.  And yet it has generally -- most
notably in {Turner Broadcasting v. FCC} and {Miami Herald v.
Tornillo} -- refused to change the doctrine to accommodate
them.<141>  It may have been right to refuse; it might, for
instance, be too dangerous to let the government intervene when it
thinks it's found "market failure,"<142> or an inability to
counterspeak, or a situation where the sting of offensive words is
so great that averting one's eyes is no remedy.  And even when the
Court's assumptions are counterfactual, they might still be
required because they represent "the theory of our Constitution"<143>
-- a basic principle which government must assume to
be true even when it might not be.  But it remains true that the
Court has based its jurisprudence on an idealized view of the
world, a view that doesn't quite correspond to the world in which
we live.
      What I've tried to suggest above is that this idealized world
-- where money is no barrier to speaking; where it's easy to avert
eyes from offensive speech; where there's more than one newspaper
in each town, and something other than a vast wasteland on TV -- is
much closer to the electronic media world of the future than it is
to the print and broadcast media world of the present.  If my
predictions are right, the new technologies will make it much
easier for all ideas, whether backed by the rich or the poor, to
participate in the marketplace.  Even if many individuals still
can't afford to counterspeak effectively, there'll be many more
organizations able to speak out on all sides of an issue.  And when
one's radio is no longer a dumb receiver but rather a computer
capable of screening out whatever the listener wants removed, a
householder really will be able to "avert his eyes" -- and his
children's eyes -- from radio profanity (or TV nudity or what have
you), rather than having to wait for the first blow.<144>
      Copyright specialists are fond of suggesting that we operate
in an electronic age under a copyright law created for a print age.
It seems to me that during the print age, the Supreme Court created
a First Amendment for the electronic age.  The fictions the Court
found necessary to embrace are turning, at least in part, into
fact.

                            C.  A Possible Dark Side

      But some of the other assumptions that the new technologies
will upset may lead to more trouble.  {Missouri Knights of the KKK
v. Kansas City}<145> might be something of a cautionary tale.  In
exchange for giving a franchise to a cable company, Kansas City
demanded that the company provide a public-access channel.
Everything went well until the Ku Klux Klan decided to put on its
own show, which offended the city government so much that
authorized the cable system to shut the entire channel down.
      The city's action was ultimately overturned on First Amendment
grounds, but the story shows what can happen when the assumptions
underlying certain rules are changed.  The city's willingness to
provide a forum for the little guy, it turned out, was based
(perhaps unconsciously) on the supposition that the little guys
would either provide a public service or at worst be harmless
eccentrics.  When the assumption proved false, the consensus behind
the rule evaporated.
      As the new media arrive, they may likewise cause some popular
sentiment for changes in the doctrine.  Today, for instance, the
First Amendment rules that give broad protection to extremist
speakers -- Klansmen, Communists, and the like -- are relatively
low-cost, because these groups are politically rather
insignificant.  Even without government regulation, they are in large
measure silenced by lack of funds and by the disapproval of the
media establishment.<146>  What will happen when the KKK becomes
able to conveniently send its views to hundreds of thousands of
supporters throughout the country, or create its own TV show that
can be ordered from any infobahn-connected household?<147>
      Likewise, the broad protection for false speech<148> evolved
in a time when the main suppliers of news and opinion were large,
ostensibly nonpartisan, media organizations.  Obviously these
broadcasters and publishers weren't entirely reliable -- they still
lose some libel lawsuits even after {New York Times v. Sullivan} --
but they were the sort of media that people can feel relatively
comfortable with.
      But with the emergence of talk radio as a powerful force, some
have begun to grouse.  Consider, for instance, a recent speech to
the National Association of Broadcasters by FCC Chairman Reed
Hundt, whose Commission decides whether to renew the broadcasters'
licenses.  Chairman Hundt, focusing specifically on talk radio,
"urged station owners and management to . . . emphasiz[e] accuracy
and truth over a quest for ratings and advertising dollars."<149>
"`As a society,'" the chairman said, "`we need solutions to public
disinformation and misinformation, but solutions that don't involve
governmental intrusion and yet don't leave us callously indifferent
to truth or falsity.'"<150>  While this isn't yet a call for
greater regulation -- the chairman specifically "stressed that the
FCC should not be the judge of content or quality in radio's public
discourses"<151> -- it shows the sort of concern that may be a
harbinger of future regulatory proposals.
      Finally, current First Amendment law developed in a time when
the public got its news and opinion from sources that provided a
fairly broad mix of topics and viewpoints.  Someone buying a
newspaper or watching the nightly news would see a variety of
stories, stories that professional editors thought fairly covered
the most important issues facing the nation.  And these stories
would be a common base that people would be able to talk about with
their acquaintances.
      The media, of course, were often criticized for falling down
on the job, by covering fluff instead of the really important
issues.<152>  But these criticisms only help show that people do
think it's the media's job to give the public a trustworthy mix of
the truly important news of the day.
      As listeners get more control over the topics and viewpoints
they see,<153> they may choose to focus on a much narrower mix of
information.  They may subscribe only to articles on topics in
which they're interested, or to commentators with whose opinions
they already agree.  They may consciously choose fluff -- more
easily than they can today -- exclude the serious news.<154>
      Listeners will no longer be a captive audience to the selection
the intermediaries -- publishers and broadcasters -- want to
feed them.  Will listeners do a better job of informing themselves
than the intermediaries have been doing?  I think the answer is
yes, but others -- including many in the audience when I presented
this paper at the Symposium -- disagree.  And when the media aren't
there to help set a national agenda, or to give people a common
base of information to argue from, will people be able to
deliberate together?
      In my view, none of these changes, significant as they may be,
should cause us to reconsider the basics of First Amendment law.
The dangers of extremists with access to the media, or of
falsehoods with an audience in the millions, or of an ill-informed
electorate are quite real; but the dangers of content regulation,
it seems to me, are greater.  And these dangers are, of course,
exacerbated by the difficulty of doing anything about the most
significant problems -- the possibility that people will choose to
watch or read infotainment instead of the important news of the day
seems especially intractable.  Professor Powe's criticism of the
FCC's attempts at content regulation seems to me to be hard to
answer.<155>
      Still, the media will change.  My thesis throughout the paper
has been that they'll change dramatically.  As people will find
themselves in a new media environment there will be new calls for
regulation, and new calls for changes to First Amendment doctrines
that some people may think are no longer apt.
      I may be wrong in my predictions about what the new media
order will look like.  But the one thing that seems certain is that
the new order will, in many ways, be vastly different from the old.

      *      Acting Professor, UCLA Law School (volokh@law.ucla.edu).
J.D., UCLA, 1992.  B.S., Math-Computer Science, UCLA, 1983.  My
thanks to Akhil Amar, Laura Brodbeck, Eugenia Gershman, Neal
Katyal, Judge Alex Kozinski, Dr. William Short, Gail Standish, and
Alexander Volokh; and, of course, to my mother Anne and especially
my father Vladimir, at whose knee I first learned about computers.

      1.     "[A]n unregulated marketplace of ideas will include `only
those that are advocated by the rich, . . . those who can borrow
from others, or . . . those who can put together a product that
will attract sufficient advertisers or subscribers to sustain the
enterprise."  Owen Fiss, {Free Speech and Social Structure}, 71
Iowa L. Rev. 1405, 1413 (1986).  "A comparatively few private hands
are in a position to determine not only the content of information,
but its very availability."  Jerome A. Barron, {Access to the Press
-- A New First Amendment Right}, 80 Harv. L. Rev. 1641, 1643
(1967).  "Freedom of the press is guaranteed only to those who own
one."  A.J. Liebling, The Press 32 (1975).  See also Cass R.
Sunstein, Democracy and the Problem of Free Speech 17-18, 57-58
(1993).

      2.     See, e.g., Fiss, {supra} note 1; Sunstein, {supra} note
1, at 107-14.

      3.     The information superhighway is supposed to provide
cheap, extremely high-speed communications to pretty much the whole
country.  Functionally, it should operate like the phone system,
but because it will use fiber-optics instead of wires, it should be
able to transmit data much more quickly than phone lines can.

      4.     The word -- in my view, a much snappier synonym for
information superhighway -- was apparently invented by Lynn Levine,
director of market research and data sales at Warren Publishing, in
1993.  E-mail from Brock Meeks to author, Oct. 27, 1994 and Nov. 6,
1994 (copy of message remarking on this date-stamped Oct. 21,
1993); telephone conversation with Lynn Levine, Nov. 7, 1994.  The
word's first appearance in NEXIS-searchable publications was on
February 28, 1994; during the rest of 1994, there have been over
700 references to it in those publications.

      5.     Larry Lessig, ___ Yale L.J. ___ (forthcoming 1995).

      6.     Sidney Shemel & M. William Krasilovsky, This Business of
Music 4-5 (6th ed. 1990).  Artists get 7% to 13% nominal royalties
(less for new artists, more for the superstars), usually minus a
10% deduction -- ostensibly, but not actually, to cover unsold
records -- and another 10% to 25% deduction for packaging.  {Id.}

      7.     Consumer convenience is especially valuable for music,
which is often bought on impulse.  If someone hears a song on the
radio and wants to buy the album, the copyright owner would prefer
that the listener be able to buy it immediately, or at least as
soon as possible.  If the listener won't go to a record store for
another week or month, the song might by then be entirely
forgotten.

      8.     The computer system will probably have some built-in
check to make sure you're not using the preplay service too often,
as a substitute for buying the album.

      9.     David Rohde, {Major Record Labels Try to Copy the Success
of Independents}, Christian Science Monitor, Sept. 23, 1994, at 11
(noting that Nirvana's first album, {Bleach}, was recorded for
$800); Michael Snyder, {Urban Folk-Rockers Swell Up}, S.F.
Chronicle, Apr. 17, 1994, at 35 (describing an album that was made
for $900, and was picked up by a major label which rereleased it
with no alterations).

      10.    {See supra} note 6.

      11.    {Cf.} Michael L. Evans, {Role Reversal:  Users Will
Dictate the Development of Tomorrow's Real Estate}, Nat'l Real
Estate Investor, Sept. 1994, at EY3 (describing IBM and Blockbuster
Entertainment's plan for on-demand inventory, where music and video
will be delivered electronically to stores, which would then record
it onto tangible media and not have to carry physical inventory);
{infra} note 15 (describing how a mail-order CD facility can
provide more titles because of lack of shelf space limitations and
inventory costs).

      12.    Some music stores -- for instance, Borders Music and
Blockbuster Music -- already let you pre-listen to albums; you take
a CD, give it to the attendant, the attendant puts it into a CD
player, and you sit there and listen to it.  Still, it should be
more convenient to pre-listen at home, where you don't have to deal
with the attendant, wait in line if all the listening stations are
busy, or spend forty minutes sitting in the music store to hear the
whole album.

      13.    {Recording Industry Announces Midyear Growth}, PR
Newswire, Aug. 11, 1994.

      14.    See Dan Hontz, {Let's Go Christmas Shopping; Mall-
Hopping Easy with Your Computer}, Arizona Republic, Oct. 17, 1994,
at E1.

      15.    {Cdconnection.com,} which lets you order CDs from your
computer but delivers them to you through normal mail, boasts over
100,000 CDs, covering the entire catalogs of all U.S. major labels
and more than 2000 independent labels, plus several thousand import
CDs.  I had looked for years for one album -- Leonard Cohen's {New
Skin for the Old Ceremony} -- and finally found it there.

      16.    See Stephen Advokat, {Music for a Song?}, Chi. Trib.,
Oct. 11, 1993, at C1.  {Cdconnection} sells a substantial fraction
of its CDs at $8.50 to $10.50, a good deal less than what they cost
at many stores, though it also charges a $3.50 flat fee for
delivery (regardless of how many CDs you buy).  According to
{cdconnection}'s online promotional materials, the price savings
are due to lack of inventory costs and to the service's ability to
shop among various suppliers.

      17.    {Cdconnection} promises delivery times of 1 to 2 weeks to
the western United States, and 2 to 3 weeks to the east.

      18.    See Computer Science & Telecomm. Board, Realizing the
Information Future:  The Internet and Beyond 30-38 (1994).

      19.    Storage of the music shouldn't be a problem, either.
While the central databases will need a lot of storage, disk space
today costs about 50 cents per megabyte, down from a bit under $2
per megabyte a year ago.  Peter Baum, {High-Capacity Hard Drives},
MacUser, Oct. 1994, at 92.  A 50-minute album today takes a bit
less than 30 megabytes (taking advantage of compression), which
translates into a one-time cost of $15 per album.  {The Internet
Multicasting Service}, Information Access, Feb. 18, 1994, at 10.

      20.    Note that the $5 will be for digital-quality music, while
the $10 figure includes both tapes (which are cheaper but low-
quality) and the more expensive digital CDs.  People who insist on
digital music may see the comparison as $5 for home delivery
against $12 to $15 for CDs in stores.

      21.          Some people to whom I've described this theory have
suggested that copyright owners won't license their music for
electronic distribution because of fear of copyright infringement.
Once music is electronically available, the argument goes, people
could buy it once and then upload it to some computer bulletin
board, or sell bootleg copies via e-mail.  Copyright owners will
therefore be reluctant to allow electronic music distribution.
      But while electronic copying is indeed a serious threat to
music copyright owners, this threat will exist whether or not the
music is available in some central database.  Even without an
electronic music database, a pirate could easily go to the store,
buy a CD, and make many copies of it on his DCC or Minidisc
recorder.
      The electronic databases might make commercial piracy more
tempting, because it will increase the number of people with
digital players, who are the pirates' potential customers.  On the
other hand, some of this effect may be counteracted by the lower
costs of legitimate buying through the databases.  Pirates will
thrive more when their rip-offs are competing with $10 albums than
with $5 albums.
      The music industry's reaction to DAT (Digital Audiotape)
recorders, the first digital-quality home recording medium, is
worth noting.  When it became likely that home digital recording
could let people easily make CD-quality copies of music, the music
industry and the DAT industry agreed to a compromise, embodied in
the Audio Home Recording Act of 1992, 17 U.S.C.  1001 {et seq.}
The Act (1) legalized home noncommercial copying; (2) taxed DAT
recorders and blank DATs, with the proceeds going to a fund to
compensate copyright owners for the expected losses due to home
copying; (3) required DAT recorder manufacturers to design their
recorders in a way that limited the possibility of large-scale
copying.
      A similar solution might be set up for the electronic music
databases.  The music industry may be able to push through a law
that would compensate for possible copying losses by: (1) requiring
an extra royalty payment on each electronic sale, and (2) requiring,
say, designers of e-mail systems or bulletin board systems to
put in checks that would make unauthorized copying harder.  {Cf.}
Working Group on Intellectual Property Rights, Intellectual
Property and the National Information Infrastructure 125-30
(prelim. draft. July 1994) (suggesting restrictions on technology
that helps pirates).  This would hardly be a fool-proof solution,
but it might provide some protection for copyright holders while
still allowing them to exploit a powerful new sales tool.

      22.    Some music stores already have computerized music catalog
machines (called Muzes), which let customers search through information
on 80,000 albums and videotapes, by performer, by composer,
or by album.  The user makes his selections by touching the screen
and, when a name is called for, typing on a keyboard.  The interface
is clear, and the display is full-color, with graphics.  See
Ken LaFave, {Muze System Takes Classical Music Lovers to Mount
Olympus of CDs}, Phoenix Gazette, Apr. 26, 1994, at D3.

      23.    {Cdconnection.com}'s first Information screen asserts
that its system contains 50,000 ratings from fellow customers, and
26,000 professional ratings from the All-Music Guide.  You can look
up the ratings easily as you browse through the CDs.

      24.    Some consumers might actually enjoy going to music
stores, either because they like the atmosphere, or because they
prefer being around other people rather than closeted at home, or
because they like to go to music stores with friends.  Movies, for
instance, haven't been entirely supplanted by VCRs, in part because
of the better picture and sound quality, but in part because people
enjoy going to the movies.
      But even if one sees going to the music store as a pleasure
rather than an inconvenience, there will probably be few people to
whom it will be worth the extra cost.  People can socialize with
friends, or mingle with strangers, in lots of other places.  If
home access provides a better deal on music, most people will just
buy the music at home and do their socializing at a restaurant or
the beach.

      25.    Pauline Tam, {An On-line Link to Top Tunes Is Soon to
Boom}, Vancouver Sun, Aug. 2, 1994, at C4.

      26.    Today such a transmission would take quite some time,
because it goes over comparatively slow phone lines.  {Id.} (3- to
4-minute song takes anywhere from 10 minutes to several hours to
download).  The whole point of the infobahn, though, is to change
all that.  Data can be sent much more quickly through fiber-optics
than through wires; though no one is quite sure, people are
generally expecting speeds tens of thousands of times greater than
those of phone lines, which can now ship about 1000 bytes per
second.  See, e.g., {A Superhighway Shortcut}, New Orleans Times-
Picayune, July 15, 1994, at B6 (giving factor of 500,000); Robert
Sanford, {Test Starts on Fiber Optic Loop}, St. Louis Post-
Dispatch, Oct. 8, 1994, at 9A (giving factor of 10,000).  Cable TV
wires can already been used for data transfers 50 times faster than
those over phone lines.  Paul Farhi, {Wiring Up Washington}, Wash.
Post, July, 4, 1994, at WBIZ-1; {George Gilder's Telecosm}, Forbes,
June 6, 1994, at 115.

      27.    Actually, you might even skip the recording step and
instead play the music directly from a central database (just as
you could today listen to music over the phone, only with much
better sound quality).  You might then be charged on a per-play
basis rather than on a once-per-album basis.
      You'll still need to record the music, though, if you want to
listen to it away from your infobahn connection, say in your car.
And if transmission costs are high enough, you might prefer to pay
them only once when you download the album, rather than every time
you listen to it.

      28.    MiniDisc recorders/players now cost $700; DCC
recorders/players cost $400.  {Personal Technology: Sony's New
MiniDisc Expensive But Versatile}, Atlanta J. & Const., Oct. 23,
1994, at P6; {Philips Defers DCC Intros}, Consumer Electronics,
Sept. 12, 1994, at 37.  Blank Minidiscs start at $14 each, blank
DCCs at $8.50.  Joseph Palenchar, {Sony Takes the Lead in Digital-
Audio Format Battle}, Electronic Business Buyer, Nov. 1993, at 79.

      29.    {MiniDisc Music Promotion Pays Off, Plus High Hopes for
Data Applications}, Tape-Disc Business, Sept. 1994, at 14.

      30.    Prices of CD players came down from about $1000 in 1983
to under $100 in 1993.  James Bates, {Old Recordings Are Music to
Dunhill President's Ears}, L.A. Times, Dec. 18, 1988,  4, at 9;
Steve Gross, {Expo to Feature the Latest in Computer Technology},
Star Tribune, May 2, 1993, at 3D.  The cost of producing CDs fell
from $3.50 in 1985 to $1.75 in late 1987, and to a bit under a
dollar by late 1991.  See {Compact Discs; Turning Down the
Volume?}, The Economist, Nov. 21, 1987, at 68 (1985 to 1987);
Richard Harrington, {The Vinyl Days}, Wash. Post, Oct. 26, 1986, at
F1 (giving figure of $3 as of late 1986); Kenneth Broad, {CD Clubs
Offer Deals That Consumers Can't Refuse}, Billboard, Oct. 19, 1991,
at 11 (1991).

      31.    James Flanigan, {Big Money Makes a Long-Term Bet on New
Software for Electronic Teaching}, L.A. Times, May 1, 1994, at D1.

      32.    Barry Cooper, {Simple Needs?  Try Windows Alternative},
Orlando Sentinel, Oct. 30, 1994, at H4 ("Leading Edge" IBM PC
compatibles).

      33.    {See supra} note 22.

      34.    {See Funny Money}, The Economist, Sept. 10, 1994, at 74.

      35.    {See supra} note 9.

      36.    Their advice, however, will be more effective than that
of reviewers today, because it will be easier for people to act on
the advice.  If someone reads a good review, he can instantly -- or
at least not much later, if he's not near his computer at the time
-- listen to the album, and, if he likes it, buy it.  Today, a
reader will likely forget the good review by the time he next goes
to a music store.

      37.    {Cf.} {supra} note 23 (describing {cdconnection.com}
computerized mail-order CD database, which includes both reviews
from listeners, solicited by {cdconnection}, and pre-existing
professional reviews).

      38.    While this creates a moral hazard -- the music databases
want to sell as much material as possible, and might pressure
reviewers to give good reviews -- the music database owners will
also be keenly conscious of the information overload problem.  If
they give consumers reliable advice, they'll buy the material
that's recommended.  If the advice becomes known as unreliable,
consumers might not buy at all, or buy less often than they
otherwise would.

      39.    Some people might actually like a Top 40-type program,
because they want to hear the things their peers are hearing.  But
even they might enjoy combining Top 40 songs with their own
favorite material in some sort of custom mix.

      40.    Paula Bernier, {Music Choice Jams with Digital Radio},
Telephony, May 2, 1994, at 42.

      41.    Getting the custom-mix radio sent directly to your car
will probably be too expensive.  Maybe some day using wireless
private lines will be as cheap as using the fiber-optics of the
infobahn, but that day may be quite some time from now.

      42.    Note, incidentally, that if custom-mix radio gets popular
enough, cars might conceivably be built to accommodate it; they
might have built-in memory, and some sort of plug-in (or even
wireless) downloading mechanism that can be used while the car is
parked at home.  (Short-distance wireless communication is cheap,
which is why you don't have to pay cellular rates for your home
portable phone).  Note also that people who like news interspersed
with their music needn't despair:  Once the service becomes common,
manufacturers may well sell car systems that play a recording for
a while and then switch to news broadcasts.

      43.    {Cf.} 47 U.S.C.  317 (prohibiting "payola" -- payment to
radio stations for playing particular material -- unless this is
disclosed to the audience).  {But see} R.H. Coase, {Payola in Radio
and Television Broadcasting}, 22 J. L. & Econ. 269, 318-19 (1979)
(suggesting that payola may benefit consumers).

      44.    This is already happening in part with online services:
One leading service, Prodigy, carries intrusive advertising --
advertising that users must see, as opposed to advertising they
choose to look at -- while two others, America Online and
CompuServe do not.  See Vic Sussman, {News of the Wired}, U.S.
News & World Report, May 16, 1994, at 60.

      45.    17 U.S.C.  115 (1994) (compulsory license for
compositions); 37 C.F.R.  307.3, {as amended by} 58 Fed. Reg.
58282 (Nov. 1, 1993) (6.61 cents, or 1.3 cents per minute of playing
time -- rounded up to the next minute -- whichever is larger).

      46.    17 U.S.C.  114(b) (1994).

      47.    Dana Blankenhorn, {Prodigious Bulletin Boards Are
Prodigy's Growing Competition}, Chi. Trib., Oct. 2, 1994, at C7
(Chicago Tribune, New York Times, and others); Hanna Liebman,
{Newspapers Hit the Highway}, Mediaweek, Apr. 25, 1994, at 16 (San
Jose Mercury News); Christopher Lloyd, {Are You Ready for the
Future?}, London TImes, Nov. 20, 1994 (Sunday Times).

      48.    See Peter E. Dyson, {Publishing on the Internet for Fun
and Profit}, Seybold Report on Desktop Publishing, Apr. 4, 1994, at
3; Clarinet Communications Corp., {ClariNews Public Access
Newsgroups}, Autumn 1994 (on file with the author).

      49.    Lamont Wood, {Throwing out the Rule Book on How to Read;
Project Building an On-Line Library}, Chi. Trib., Oct. 2, 1994, at
C6.

      50.    Yardena Arar, {(Ebooks-Infoaccess.Digex.Com.)  Say What?;
Translation: Get a Book Via Computer in  Minute}, Arizona
Republic, July 14, 1994, at D1; {The Internet Bookstore Opens for
Business}, Link-UP, July 1994.

      51.    Laurent Belsie, {Hot Competition}, Christian Science
Monitor, Sept. 9, 1994, at 9.

      52.    There's no need to fear unsolicited "junk e-mail"
arriving through this system; the home computer can easily be
configured to print only those messages to which the user has
actually subscribed.

      53.    See Bill McAllister, {Nonprofit Mail Discounts on Route
to Cancellation; Thousands of Nonprofit Groups Facing Loss of
Postage Subsidies}, Wash. Post, May 11, 1993, at A1.

      54.    Jeffrey K. MacKie-Masson & Hal Varian, {Economic FAQs
About the Internet}, 8 J. Econ. Perspectives, Summer 1994, at 91.

      55.    Long-distance calls are expensive, but computer networks
already avoid this cost by having users connect to local computers
and then routing the messages across the country using their own
communications mechanisms.

      56.    Karen E. Carney, {Saving Cash with Second-Time-Around
Goods}, Inc., May 1994, at 162.

      57.    The L.A. Times, for instance, costs about $200 a year
(for both daily and Sunday papers).  Conversation with L.A. Times
Subscription Department, Nov. 13, 1994.

      58.    See George Gilder, {Digital Dark Horse -- Newspapers},
Whole Earth Review, June 22, 1994, at 23 (describing the current
state of the art, flat-screen displays about 9" wide, 12" high, and
" thick, weighing a bit over a pound).

      59.    Highlighting and writing notes would require some sort of
electronic stylus that could be used to write on the screen, but
these are already available.

      60.    The book can easily be updated in the central database,
so all future buyers will get the updated version.  But it can even
be updated for people who have already bought the book and
downloaded it onto their ebooks.  The publishers can set up a
service to which any ebook owner can connect, perhaps every week or
month, and automatically get updates -- for a charge -- for all the
books he owns.  It will be just like a pocket part for a legal
treatise, but with no need to print, mail, and stuff, and no need
for the reader to check both the main part and the pocket part.

      61.    Ebooks will also be able to support hypertext, which --
in the view of many -- is a much more useful way of organizing
information than the conventional book.

      62.    Steven Barboza, {The Price Is Right}, Folio, May 1, 1993,
at 58 (quoting John Klingel, director of new magazine development
at Time Inc. Ventures).

      63.    Andrew M. Odlyzko, {Tragic Loss or Good Riddance?  The
Impending Demise of Traditional Scholarly Journals}, ___ Intern. J.
Human-Computer Studies ___ (forthcoming 1995), to be reprinted in
Electronic Publishing Confronts Academia:  The Agenda for the Year
2000 (Robin P. Peek & Gregory B. Newby eds. 1995) (manuscript on
file with author).

      64.    See Gilder, {supra} note 58.

      65.    Allen Neuharth, {The State of News Standard Today
Compared With Those in the `Golden Age,'} Editor & Publisher, Feb.
26, 1994, at 54.

      66.    See Speech of Bruce Cohen, Director, South Africa
Weekly Mail & Guardian to the First Pan-Arab Conference on Managing
Newspapers in the Arab World, Sept. 28-30, 1994 (explaining the
benefits of electronic distribution; the Weekly Mail & Guardian is
electronically distributed), E-mail from Bruce Cohen to author,
Nov. 10, 1994.

      67.    John McDonough, {Industry Focus}, Computer Reseller News,
May 23, 1994, at 150 (NEC plans to introduce a $700 display; Sharp
plans to introduce a $500 display).

      68.    See Ron Scherer, {Grisham, Crichton Books Serve as a
Boarding Pass}, Christian Science Monitor, Sept. 2, 1993, at 14
(giving 10% figure); James Warren, {Lucrative Detours on the
Information Superhighway}, Chi. Trib., Jan. 27, 1994, at 2 (giving
15% figure for hardcover books).

      69.    {Cf.} Alan Deutschman, {Scramble on the Information
Highway}, Fortune, Feb. 7, 1994, at 129 (making a similar point);
{supra} note 50 (describing current cost savings at the Internet
Bookstore).

      70.    See, e.g., {House of Fabrics Bankruptcy News:  The By-
Fax Newsletter}, PR Newswire, Nov. 3, 1994 ($30 a week plus fax
charges).

      71.    See Greg Boeck, {Hollywood Park Scene of Star Rematch},
USA Today, Dec. 10, 1993, at 7C ($364 for 6 months).

      72.    See Richard Vara, {Fax and Figures; Churches Utilize
Popular Machines}, Houston Chronicle, Oct. 2, 1993, sec. religion,
at 1.

      73.    See Bob von Sternberg, {Sparring in Cyberspace:
Campaigns Jump on Internet}, Star Tribune, Oct. 31, 1994, at 1B.

      74.    Even my free e-mail system, Pegasus Mail, has such an
option.

      75.    Each tutorial consists of 20 or so messages, of about 100
lines each; the messages, about various aspects of the Internet,
are delivered every couple of days.

      76.    E-mail from Crispen to author, Nov. 13, 1994 (62,000
subscribers from 77 countries).

      77.    See Miguel Llanos, {Newbies Flock to On-Line Class of
Internet Basics}, Seattle Times, Sept. 18, 1994, at D2.

      78.    {Pickets Can't Stop Publications; Internet, Management,
Strikers Offer Own Version of News}, Houston Chronicle, Nov. 4,
1994, at A4.

      79.    Doug Stewart, {To Buy or Not to Buy, That Is the Question
at Consumer Reports}, Smithsonian, Sept. 1993, at 34; Lesley White,
Feminism with Additives}, Sunday Times, Nov. 22, 1992; See also
{Cook's Magazine is Back on Shelves}, Orlando Sentinel, June 24,
1993, at H6 ({Cook's Illustrated} magazine "takes no advertising,
[which] allows the staff to honestly rate and compare products").

      80.    Thomas G. Krattenmaker & Lucas A. Powe, Jr., Regulating
Broadcast Programming 297 (1995).

      81.    In fact, with the advent of new channels such as CNN,
CSPAN, Discovery Channel, Nickelodeon, and so on, the Vast
Wasteland critique of TV is less apt, too.

      82.    See George Gilder, {Breaking the Box}, National Review,
Aug. 15, 1994, at 37.

      83.    The average major network -- ABC, CBS, and NBC --
audience in 1992 was 3 to 4 million per network in the mornings, 8
to 12 million in prime time, and 2 to 5 million in late night (11
pm to 1 am).  The Leo Burnett Worldwide Advertising and Media Fact
Book 489 (1994).

      84.    See Mitchell Kapor, {Where Is the Digital Highway
Really Heading?}, Wired, July/Aug. 1993, at 53, 59, 94.

  85.  [F]ibre optics leapfrogs beyond the 500-channel universe, satellite
dishes, wireless systems and eventually newspapers because it is a
two-way system.  Instead of being dependent upon a network's schedule,
producer's priorities or editor's choices, consumers can pick and
choose what goes on their screens just as handily as they use their
telephones. . . .  The information highway will be an electronic
version of the book business where consumers select from tens of
thousands of choices for a variety of reasons: referrals, cover
designs, advertisements, word-of-mouth suggestions, publicity stunts,
best-sellers' lists or review endorsements.
{Cf.} Diane Francis, {Fibre Optics Leapfrogs the 500 Channels},
Financial Post, July 19, 1994 (paraphrasing Bill Gates of Microsoft).

      86.    See, e.g., David Lieberman, {Premiere of Video on
Demand}, USA Today, Oct. 12, 1994, at 1B; Ted Bunker, {The
Multimedia Infotainment I-Way}, Lan Magazine, Oct. 1994, at S24;
Marc Pfeiffer, {Interactive Reality II: Video-on-Demand: Killer
Application or Pie-in-the-Sky Money Pit?}, Inside Media, Sept. 21,
1994, at 74.  Some of the early tests sound like something out of
{The Flintstones}:  When a request for a particular movie comes in,
a person at the central station goes to a shelf, pulls out a video-
cassette, and inserts it into a VCR that then feeds the signal to
the customer's TV.  Lieberman, {supra}.  Obviously, this is only
happening because it's a pilot project; a working system must be
able to do all this automatically, and devices for implementing
this have already been created.  Bunker, {supra}.

      87.    Tom Feran, {`Make It So' `Generation' Ready for Final TV
Journey,} Cleveland Plain Dealer, May 21, 1994, at 1F ({Star Trek:
The Next Generation} costs over $1.6 million per hour); Ann Hodges,
{Spelling Scores on All the Networks,} Houston Chronicle, Aug. 25,
1994, at 4 (Spelling's new show, {Heaven Help Us}, $1 million per
hour); {TV Execs Wrangle with FCC over `Educational' Label for Kids
Shows,} Memphis Commercial Appeal, June 29, 1994, at 4A (PBS's
{Where in the World is Carmen Sandiego?} and {Ghostwriter} cost
$390,000 per half hour); John Dempsey, {Siegel Unveils First-Run
Sitcom,} Variety, Nov. 14, 1994, at 62 (proposed new sitcom called
Beverly Hills Beach Club, $225,000 per half-hour).

      88.    In 1992, advertisers paid from $2.40 (CBS in the morning)
to $9.23 (ABC prime time) per thousand viewers for a 30-second
spot.  Leo Burnett, {supra} note 83.  Assuming about 16 commercial
minutes per hour, that translates into a budget of $75,000 to
almost $300,000 per million viewers for an hour-long program.
Note, however, that these people needn't all be watching at once.
A program that today attracts 500,000 viewers for each of its 26
regular-season episodes and 500,000 really has a viewership of
1,000,000 per episode.

      89.    See, e.g., {`Austin City Limits' Hits Milestone},
Billboard, Oct. 22, 1994, at 14 (country music concert show,
$700,000 for a season of 13 half-hours); Diane Turbide, {Handyman's
Special}, MacLean's, Mar. 28, 1994, at 61 (successful Canadian
sitcom, $70,000 per half-hour); Debbi Snook, {Inquiring TV Host},
Cleveland Plain Dealer, Jan. 30, 1994, at 1H (relatively successful
PBS nature show, $65,000 per season); Dan St. Ledger, {Let's Put on
a Show}, Business Dateline, Apr. 25, 1993 (reality-based TV show,
$40,000 per episode).

      90.    See Michael Crichton, {The Mediasaurus}, Wired,
Sept./Oct. 1993, at 56, 58.

      91.    {Cf.} Michael McKeon, {Fragmenting of the News}, Wash.
Post, May 11, 1994, at A21 (criticizing the "fragmented,
treacherous and completely foreign communications landscape"
created by "cable and interactive television, remote control, VCRs,
E-Mail and faxes," in which people want their news "from like-
minded people, and stated in their own terms"; this, the writer
argues, leads people to "often choos[e] information delivered by
demagogues appealing to fear, anxiety and prejudice through heated
rhetoric and distortion").

      92. [W]e all have a shared history based on the TV pictures of the
past years common to all Americans.  A national memory shadowed by the
same video images of Lucille Ball and Edward R. Murrow, the moon landing
and the Mod Squad, Melrose Place and the nightmare-in-slow-motion that
was Dallas in '63.  With the advent of the new technologies, this shared
history is threatened.  If we all control our screens, if we can program
what we watch and when for the sake of convenience, we lose this common
experience in our culture.
Dennis Palumbo, {Perspective on Interactive Media}, L.A. Times,
July 25, 1994, at B7.  The author may be overstating things, but I
think there's something to what he says.

      93.    This is analogous to the argument that has sometimes been
made about private schools, which give parents more control over
their children's upbringing, but are thought by some to be
dangerous to the common culture.  Peter Schrag, {Kiss Our Melting-
Pot Heritage Goodbye}, S.D. Union-Tribune, July 15, 1993, at B13;
{cf.} Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (discussing
argument that ban on teaching foreign languages would "foster a
homogeneous people with American ideals prepared readily to
understand current discussions of civic matters").

      94.    {Compare} Greg Kot, {Chilling Silence}, Chi. Trib., Dec.
27, 1992, at C12 (criticizing the apparent willingness of Time
Warner Records to pressure Ice-T to drop the song {Cop Killer} from
his album) {with} Jonathan Alter, {Let's Stop Crying Wolf on
Censorship}, Newsweek, Nov. 29, 1993, at 67 (praising these sorts
of private speech regulations as sound journalistic judgment);
McCalden v. California Library Ass'n, 955 F.2d 1214 (9th Cir. 1992)
(concluding that private groups' actions that pressured another
group not to provide a forum for Holocaust revisionists could be
tortious) {with} {id}. at 1261-62 (Kozinski, J., dissenting from
denial en banc) (concluding that such pressure was itself protected
by the First Amendment).  See Elizabeth Venant, {An `American
Psycho' Drama}, L.A. Times, Dec. 11, 1990, at E1 (describing
different views of Simon & Schuster's refusal to publish Bret
Easton Ellis's {American Psycho} because of its graphic depictions
of dismemberment of women, and of the threatened NOW boycott of the
book's next publisher); See also   Brenda Herrmann, {Radio Tuning
out Gangsta Rap}, Chi. Trib., Jan. 18, 1994, at C1 (discussing some
radio stations' refusal to play violent or misogynistic rap songs);
Stephanie Lynam, {NOW Wants Media to Cull Images Degrading Women},
Times-Picayune, Nov. 3, 1994, 13H1 (discussing proposals for
boycotts of video stores that carry some slasher movies).

      95.    See James Warren, {Andy Rooney Suspended, But Denies
Racist Comment}, Chi. Trib., Feb. 9, 1990, at C3 (describing CBS's
suspension of {60 Minutes} commentator Andy Rooney for allegedly
making a racist comment); UPI, Jan. 18, 1988 (describing CBS's
firing of Jimmy "The Greek" Snyder on similar grounds).

      96.    See Jerry Schwartz, {Klan Group Forced to Disband in
Atlanta Lawsuit}, Reuters, May 20, 1993.

      97.    See, e.g., Missouri Knights of the KKK v. Kansas City,
723 F. Supp. 1347 (W.D. Mo. 1989) (describing KKK's ultimately
successful attempts to get time on a local cable system's public
access channel).

      98.    See, e.g., Nat Hentoff, {New FCC Head Frets Sometimes
over Free Speech}, Rocky Mountain News, Nov. 28, 1994, at 42A
(describing complaints by FCC Chairman Reed Hundt and outgoing
Speaker of the House Thomas Foley); Claudia Puig, {FCC Chief Wants
Talk Radio Shows to Deal in `True Facts,'} L.A. Times, Oct. 14,
1994, at D2; Chuck Raasch, {Talk May Be Cheap, but It's Big on
Radio}, Gannett News Serv., Sept. 25, 1994; Howard Kurtz, {Radio
Daze}, Wash. Post, Oct. 24, 1994, at B1.

      99.    See Steven Weinberg, {The Kitty Kelley Syndrome; Why
You Can't Always Trust What You Read in Books}, Colum. Journalism
Rev., July/Aug. 1991, at 36 ("few nonfiction books are checked for
accuracy[; a]s a result, inaccuracies abound"); Richard Blow & Ari
Posner, {Are You Completely Bald?  Adventures in Fact Checking},
The New Republic, Sept. 26, 1988, at 23 (New Republic has no fact
checkers, "partly for deadline reasons, partly for financial
reasons, and partly because of philosophical doubts about whether
devoting limited resources to catching the kinds of things fact
checking catches is the best way to serve the larger cause of
printing the truth") (confirmed by author's personal conversation
with the magazine's editorial department on Dec. 6, 1994).

      100.   {See supra} text accompanying note 33.

      101.   David Lieberman, {Premiere of Video on Demand}, USA
Today, Oct. 12, 1994, at 1B.

      102.   {Cf.} {World Wide Web Draws Interest}, Tampa Tribune,
Nov. 21, 1994, sec. business & finance, at 10 (U.S. Postal Service
plans to put Internet kiosks in its buildings so the public can
access various government agencies).

      103.   Expiration dates are feasible, assuming some cooperation
from the ebook software.  Some users might be able to avoid them by
somehow tampering with the software, and underground expiration
date cracking programs might become widely available.  Still, it
should be possible to have an expiration feature that's enforceable
against the great majority of users.

      104.   See 17 U.S.C.  106 (1994); MAI Sys. Corp. v. Peak
Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) ("loading
software into [computer memory] creates a `copy' of that software
in violation of the Copyright Act").

      105.   Jennifer M. Schneck, Note, {Closing the Book on the
Public Lending Right}, 63 N.Y.U. L. Rev. 878, 878-80 (1989).

      106.   Such as the ASCAP or BMI licensing agreements that are
commonly used to license the right to perform musical compositions.

      107.   {Cf.} Audio Home Recording Act of 1992, 17 U.S.C.  1001
{et seq.} (1994) (embodying a similar compromise, in which owners
of music copyrights are compensated from sales of DAT recorders and
blank DATs, and in exchange individuals are allowed to copy music
for noncommercial purposes).

      108.   17 U.S.C.  109(a) (1994).

      109.   {See supra} note 104.

      110.   They've made exactly this complaint about sales of used
CDs.  Irv Lichtman, {Songwriting Community Speaks out on Used CDs},
Sept. 4, 1993, at 16.  In fact, CD distributors tried to pressure
stores not to sell used CDs, steps that led to a restraint of trade
lawsuit and ultimately a settlement.  {Dispute Between Music
Companies and Record Store Owners over Sale of Used CDs Is
Settled}, Entert. L. Rep., Apr. 1994.

      111.   This already happens with broadcast radio stations.
See, e.g., Pete Schulberg, {Portland's Radio Stations on a Roll},
Oregonian, June 12, 1994, at F1.

      112.   {See supra} note 79 (describing how {Consumer Reports}
and {Ms.} do this today).

      113.   Hanna Liebman, {A Welcome Change for a Troubled Industry
Predicted in New Report on Newspapers}, Mediaweek, Nov. 29, 1993,
at 5.

      114.   Dorothy Giobbe, {The Future of Print Classifieds}, Editor
& Publisher, July 16, 1994, at 24.

      115.   {See supra} note 102.

      116.   See Vic Sussman, {News of the Wired}, U.S. News & World
Report, May 16, 1994, at 60.

      117.   {See }Aaron Zitner, {Globe to Offer New On-line
Services}, Boston Globe, Dec. 7, 1994, at 49 ("publishers are
concerned that competitors will cut into their print revenues by
putting real estate, help wanted and other advertisements on-line
[;c]lassified ads, which account for half of all Globe advertising
revenues, are considered particularly vulnerable").  Newspapers
can, of course, enter the classified market themselves.  See
Giobbe, {supra} note 114.  But the newspapers won't have any
substantial edge over other service providers in this field.  And
even if a newspaper comes up with a fabulously profitable
electronic classified service, the stockholders will probably be
hesitant to use this service to subsidize a money-losing print
operation.

      118.   See Gilder, {supra} note 58; Michael Schrage, {Is
Advertising Finally Dead?}, Wired, Feb. 1994, at 71, 72 (describing
advertising that is both "narrowcas[t] and interactiv[e]").  This
might raise complicated privacy issues (which are beyond the scope
of this paper).  See Cable Act of 1984, 47 U.S.C.  551 (1994)
(restricting information cable operators can collect about their
customers); Video Act of 1988, 18 U.S.C.  2710 (same for video
stores).

      119.   Susan Gilmore, {`Seinfeld' or ESPN?  Ads Hunt the Voters
-- Big Bucks Are Bet on Those TV Spots}, Seattle Times, Nov. 4,
1994, at A1 (quoting political consultant Brett Bader).

      120.   {Id.} (quoting consultant Frank Greer).

      121.   Of course, the candidate shouldn't create ads that would
be too embarassing if revealed to the public at large.  For instance,
in the 1990 Minnesota senatorial campaign, a letter was sent
to the Jewish community on behalf of then-Sen. Rudy Boschwitz
critisizing his opponent, Paul Wellstone, for marrying a non-Jew
and raising his children outside the faith; the strategy appears to
have backfired when the ads got a lot of press.  See, e.g., Chuck
Raasch, {Campaign Ads Got Nastier as Election Got Closer}, Gannett
News Serv., Nov. 8, 1990.

      122.   The word "demassify" -- which captures extremely well
what the new technologies will do to the media -- was coined (or at
least popularized) by Alvin and Heidi Toffler.  See Alvin Toffler
& Heidi Toffler, {The Third Wave} 155 (1980); {The "Future Shock"
Man Sees More Drastic Changes Ahead}, U.S. News & World Report, May
5, 1975, at 53; See also   Alvin Toffler & Heidi Toffler, Creating
a New Civilization:  The Politics of the Third Wave (Progress &
Freedom Found. 1994); Progress & Freedom Found., Cyberspace and the
American Dream:  A Magna Carta for the Knowledge Age rel. 1.2, at
14 (1994).

      123.   Anne Branscomb, ___ Yale L.J. ___ (forthcoming 1995).

      124.   {Compare, e.g.,} Letter of June 23, 1994 from John E.
Palomino, Regional Civil Rights Director for United States
Department of Education, Office of Civil Rights to Dr. Robert F.
Agrella, President of Santa Rosa Junior College, at 6-7 (arguing
that harassing speech in a particular academic setting was not
constitutionally protected) {with} Dambrot v. Central Mich. Univ.,
839 F. Supp. 477 (E.D. Mich. 1993) (striking down a university's
hostile environment harassment code); Suzanne Sangree, {Title VII
Prohibitions Against Hostile Environment Environment Sexual
Harassment and the First Amendment:  No Collision in Sight}, ___
Rutgers L.J. ___ (forthcoming 1995) (arguing workplace hostile
environment harassment law is constitutional) {with} Kingsley R.
Browne, {Title VII as Censorship:  Hostile-Environment Harassment
and the First Amendment}, 52 Ohio St. L.J. 480 (1991) (arguing the
contrary) {and} Eugene Volokh, Comment, {Freedom of Speech and
Workplace Harassment}, 39 UCLA L. Rev. 1791 (1992) (taking an
intermediate position).

      125.   See Cubby, Inc. v. Compuserve Inc., 776 F. Supp. 135,
139 (S.D.N.Y. 1991) (holding, under established libel mens rea
rules, that bulletin board operator can't be held liable for a
defamatory posting).  Electronic distribution might still lead to
some adjustments in the law:  As the costs of allowing replies
fall, laws that require a right of reply to false defamatory
material might become more viable.  See Edward A. Cavazos, Note,
{Computer Bulletin Board Systems and the Right of Reply}, 12 Rev.
Litig. 231 (1992).

      126.   See John C. Scheller, Comment, {PC Peep Show:
Computers, Privacy, and Child Pornography}, 27 J. Marshall L. Rev.
989 (1994).

      127.   Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198-99
(1931) (holding that copyright infringement is a strict liability
tort); Melville B. Nimmer & David Nimmer, Nimmer on Copyright
 13.08, at 13-264 & n.2 (1994).

      128.   See Pinkham v. Sara Lee Corp., 983 F.2d 824, 829 (8th
Cir. 1992); 3 Nimmer on Copyright, {supra} note 127,  13.08, at
13-267.

      129.   See Cubby, Inc. v. Compuserve Inc., 776 F. Supp. 135,
139 (S.D.N.Y. 1991) (holding that republisher of defamatory
material can't be held strictly liable); Smith v. California, 361
U.S. 147 (1959) (holding that strict criminal liability for selling
obscenity is impermissible); Manual Enterprises, Inc. v. Day, 370
U.S. 478 (1962) (suggesting the same in the context of civil
penalties).  As the Court put it in {Manual Enterprises} --
deciding whether federal law let the Post Office bar a magazine
from the mails when ads in the magazine offered obscene matter for
sale --
      Since publishers cannot practicably be expected to
      investigate each of their advertisers, and since the
      economic consequences of an order barring even a single
      issue of a periodical from the mails might entail heavy
      financial sacrifice, a magazine publisher might refrain
      from accepting advertisements from those whose own
      materials could conceivably be deemed objectionable by
      the Post Office Department.  This would deprive such
      materials, which might otherwise be entitled to
      constitutional protection, of a legitimate and recognized
      avenue of access to the public.
{Id.}, at 493.  The analogy to copyright infringement liability
seems to me to be strong, though not perfect.  See also   Edward M.
Di Cato, {Operator Liability Associated with Maintaining a Computer
Bulletin Board}, 4 Software L.J. 147, 155-56 (1990) (advocating a
mens rea of gross negligence as a minimum for holding system operators
liable for copyright infringements done using their systems).
{Cf.} De Acosta v. Brown, 146 F.2d 408 (2d Cir. 1944) (Hand, J.,
dissenting) (arguing that holding a magazine publisher liable for
infringement by a contributing author "is likely to prove an
appreciable and very undesirable burden upon the freedom of the
press").

      130.   The Supreme Court has never considered this issue, and
I'm unaware of any lower courts that have discussed it at any
length.

      131.   Even noncommercial door-to-door soliciting -- which is
much more intrusive than unwanted mail or e-mail -- is
constitutionally protected.  {Martin} v. {City of Struthers}, 319
U.S. 141 (1943).

      132.   Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983).
This language was used in {Bolger} with regard to a content-based
restriction, assertedly justified by a desire to protect
householders from offensive material.  Still, the argument is
founded on the perceived ease of discarding unwanted mail,
regardless of the reason it's not wanted.  If e-mails get cheap
enough that one's mailbox may have hundreds in a day, the burden of
throwing them out may become too great.

      133.   See Trotter Hardy, {The Proper Legal Regime for
"Cyberspace,"} 55 U. Pitt. L. Rev. 993, 1012-13 (1994).

      134.   {See also, generally,} David J. Goldstone, {The Public
Forum Doctrine in the Age of the Information Superhighway}, ___
Hastings L.J. ___ (forthcoming 1995) (proposing changes to the
public forum doctrine as to government-owned networks).

      135.   Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting).

      136.   Whitney v. California, 274 U.S. 357, 375 (1925)
(Brandeis, J., concurring).

      137.   Cohen v. California, 403 U.S. 15 (1971).

      138.   See, e.g., Turner Broadcasting, Inc. v. FCC, 113 S. Ct.
2445, 2468 (1994).

      139.   {Cf.} Miami Herald Co. v. Tornillo, 418 U.S. 241, 251
(1974).

      140.   FCC v. Pacifica Found., 438 U.S. 726, 749 (1977).

      141.   See {Turner Broadcasting}, 113 S. Ct. at 2458 ("the
mere assertion of dysfunction or failure in a speech market, without
more, is not sufficient to shield a speech regulation from [the
normal strict] First Amendment standards"); {id.} at 2468
(acknowledging cable systems' "bottleneck monopoly power"); {Miami
Herald}, 418 U.S. at 251, 254 (1974) (acknowledging that the high
cost of publishing a newspaper "ha[s] made entry into the market-
place of ideas served by the print media almost impossible," but
concluding that a law that required newspapers to carry replies to
attacks on candidates were still barred by "the express provisions
of the First Amendment and the judicial gloss on that Amendment
developed over the years"); See also   Buckley v. Valeo, 424 U.S.
1 (1976) (generally rejecting arguments that wealth inequalities
justify government restrictions on some speakers aimed at
benefiting others).  {But see} Austin v. Michigan Chamber of
Commerce, 494 U.S. 652 (1990) (accepting, in the limited context of
corporate expenditures aimed at benefiting political candidates, a
speech restriction aimed at avoiding "the corrosive and distorting
effects of immense aggregations of wealth" on the political
process); FCC v. Pacifica Found., 438 U.S. 726 (1978) (accepting,
in the limited context of broadcasting, a speech restriction aimed
at avoiding listener offense); Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969) (accepting, in the limited context of
broadcasting, a burden on speech justified by a concern about
spectrum scarcity).
      Zechariah Chafee's seminal First Amendment advocacy, in fact,
has been characterized as consciously accepting a willful blindness
about the flaws of the speech market:  "The constitutional defense
of free speech, [Chafee] declared, would implicitly pretend that
the distribution of economic resources did not affect the system of
freedom of expression."  Mark A. Graber, Transforming Free Speech
161 (1991).

      142.   {See Turner Broadcasting}, 113 S. Ct. at 2480-81
(O'Connor, J., concurring in part and dissenting in part); Austin
v. Michigan Chamber of Commerce, 494 U.S. 652, 692 (1990) (Scalia,
J., dissenting); {see also generally} Krattenmaker & Powe, {supra}
note 80 (asserting that government attempts to compensate for
perceived market failures in broadcasting have done more harm than
good).

      143.   {Abrams}, 250 U.S. 616, 629 (1919) (Holmes, J.,
dissenting).

      144.   I have not discussed this last point above, but it's
well-documented in other sources.  {See, e.g.}, Robert Brehl,
{Personal `Genie' Will Cull Masses of Data for You}, Toronto Star,
Oct. 24, 1994 (describing "bozo filters," a primitive version of
this); Leslie Miller, {Prodigy Guides Its Users Into Internet}, USA
Today, Oct. 20, 1994, at 5D.

      145.   723 F. Supp. 1347 (W.D. Mo. 1989).

      146.   {See supra} Part II.B.2.

      147.   {See supra} Part II.B.2.

      148.   New York Times Co. v. Sullivan, 376 U.S. 254 (1964).  The
protection may be in part justified by the need to protect true
speech, {but see} {id.} at 279, n.19 ("[e]ven a false statement may
be deemed to make a valuable contribution to public debate"), but
it is nonetheless quite broad.

      149.   Claudia Puig, {FCC Chief Wants Talk Radio Shows to Deal
in `True Facts,'} L.A. Times, Oct. 14, 1994, at D2; See also   note
98 and accompanying text.

      150.   {Id.}

      151.   {Id.}

      152.   See, e.g., Sunstein, {supra} note 1, at 59-62.

      153.   {See supra} Part II.B.1.

      154.   {Cf.} Sunstein, {supra} note 1, at 20-21 (suggesting that
people may foolishly underconsume important information about
political affairs).

      155.   See Krattenmaker & Powe, {supra} note 80.





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