Can Google have its cake and eat it too? That's what Tom wonders in this follow-up post to my report on a federal decision that Google has the right to refuse advertising as it sees fit.

Tom wrote: "An ISP can argue that it is just a pipe, a bit carrier, and therefore has the protection of the [Communications Decency Act]."

But the CDA protection is much broader than this. In fact it's really aimed at user-created content, protecting "online services" from liability for what users post. In one case, a service was found not liable for some very clearly libelous things a user wrote about a starlet.

And just recently, as I
reported two weeks ago, the CDA was found to protect MySpace against liability for an online predator's use of the service. In that case, the court said:

"To ensure that Web site operators and other interactive computer services would not be crippled by lawsuits arising out of third party communications, the Act provides interactive computer services with immunity."

Liability attaches for publisher-created content (for say, running "Why I Hate Blacks"), not for user-created content (thanks to CDA.) So long as Google doesn't create any original content, it seems to me they don't have liability concerns for such things as libel.

And this is not just District Court judges. The First Circuit just released a decision that Lycos and Terra Networks are immunized from lawsuits based on user postings (PDF).

So, if newspapers are at a disadvantage because they have liability, the answer is obvious. Publish stuff on other people's online services and turn the paper's site into a linkbucket. Hmm, no business model there. But I don't think liability is really the issue.

The issue of media competitiveness has to do with who delivers the best value for advertisers and how people want to take their journalism. I think they want journalism to be part of an intelligent conversation, that takes in new information and perspective and doesn't just adhere to an inverted pyramid or he-said, he-said formula. Papers are clearly losing the advertising front and they've made only modest gains on the second.