If the courts were to uphold the former position, it would have a devastating impact on the search engine industry, because the logistics of getting opt-in permission from millions of individual site owners would likely be beyond the resources of all but the largest companies. If you want a stagnant search engine industry dominated by Microsoft, Google, and Yahoo, just set up copyright hurdles that will make it virtually impossible for new firms to enter the market.

Yep. Thank goodness most jurisdictions have not been so stupid.

there just isn’t any way to compete with the decentralized efforts of millions

is that those efforts need an appropriate platform/growth medium. The internet did grow beyond being an obscure network dominated by computer nerds, but my conjecture is that there was a fair chance of it not growing beyond that niche — with a combination of the right legal obstacles and better decisions by AOL and similar (e.g., just a little openness on their closed platforms).

Apple is probably doing better than AOL (substitute relatively flexible DRM for a little opnness), but I hope it has a short half-life , and not one determined by the FTC.

All the exciting stuff circa 1993 was behind AOL’s paywall. The reason the web won is that the web grew faster, thanks to the magic of network effects. And I don’t think it’s a coincidence that the lawyers didn’t notice search engines and linking until after critical mass had been achieved–what’s the point of suing people on an obscure network dominated by computer nerds?

Slowing down progress is pretty important, in a bad way. Furthermore, I’d make a wild guess that the future is highly dependent on initial conditions, no outcomes are inevitable by a long shot, and there is no such thing as an ultimate outcome, only a new set of initial conditions.

Obviously the particular course of history depends on initial conditions. But I don’t think that makes predictions about “the long run” impossible. I can’t predict the exact course the transition from closed to open music platforms will take, but I’m willing to bet that by 2020, the vast majority of the music we listen to will be released in an open format.

Anyway, we don’t disagree about the fact that slowing down progress can be very bad. It’s certainly conceivable that a string of bad copyright decisions in the early 90s could have set the web back by a decade, and that would have been a pretty terrible outcome. But I think something like the Internet would have eventually knocked AOL off its throne, because there just isn’t any way to compete with the decentralized efforts of millions (to say nothing of tens or hundreds of millions) of people with the unrestricted ability to exchange information.