Since I came back from my summer hiatus, I’ve been trying to figure out a useful way to get back into the swing of the blogosphere. Frank’s post on Google finally prompted me to articulate a bunch of questions that I’ve been carrying around.
First, how do people actually use Google? Does Google know? Does anyone know? When I write “how do people actually use Google,” I’m wondering how the myriad of tools that Google supplies actually get integrated into our lives — both online and offline. I use Google as my default general purpose search tool. I use Google Scholar, Google Maps, and Google Earth. I have a gmail account, but I don’t use it much. That’s it. There are a lot of different Google measures that one could use, but if one simple spectrum is “power Google user” to “non-Google user,” where do I fall?
Second, and the reason that I ask the first, is there a plausible way to characterize IP disputes involving Google in agency terms? This question goes back to the Kinko’s/PUP v. MDS cases: If an individual has a plausible fair use defense to a claim of copyright infringement, what changes when that individual hires a firm to do the same thing 0n his/her behalf, and the firm gets sued instead? If I could go out into the world on my own and gather (headlines) (thumbnails) (cached versions of websites) in order to organize and comprehend my information universe — and that’s a big “if,” and I’ll come back to that — then why can’t I hire Google to help me? Or, why can’t Google volunteer to help me?
I suspect that how “I” actually use Google has some bearing on that question. Am I really trying to organize my information world? Is Google tempting me with tools I don’t ordinarily need or want? What is Google’s role in shaping my evolving set of preferences? (Of course, maybe I’m wrong; maybe how I use Google is irrelevant. But my intuition is the reverse, and the Betamax case sort of backs me up. I write “sort of,” because the Supreme Court cared about what people did with their machines, but the Supreme Court — I think — got it wrong.
Here’s are different versions of what I think is the same question: If fights over IP law applied to Google are really fights over individual interests in access to content, then shouldn’t we be debating them in those terms, and leaving Google out of it? If those fights are really over Google and not really about individuals, then can we stipulate that if any given individual were doing what Google is doing, for his/her own use, then no IP right would be violated? And if the answers to those questions happen to be “no,” then is the Google/IP matrix really a question of how to model a set of transactions that requires the relevant parties to internalize some acceptable level of cost? That is, are the problems here really about the distribution of IP entitlements, or (since transactions costs seem to be lower by the day) are they just about money?*
(* I can use just a little econo-jargon, safely, I think, so long as I listen to my inner Harry Callahan: A man’s got to know his limitations.)
Mike, your questions appear to implicitly assume that search engines try to passively effectuate consumers’ desires. The reality, of course, is that search engines actively manage their search databases to effectuate a variety of goals, ultimately driven by the search engine’s own profit motivations. See, e.g., the KinderStart lawsuit. So, if you want to pursue the agency argument, you might consider how the law might differ when a putative agent makes a lot of self-interested and autonomous judgments along the way. Eric.
Eric,
Certainly, search engines manage their databases, and there’s no question that profit is a keen motivator. But s.e. co.s don’t try to manage consumers’ (searchers’) *desires,* do they? (If they do, I’d like to know how. Ads? But see my example, below.)
Here’s an example that I included in a draft of the post but deleted for simplicity’s sake. It illustrates my response to the point you raise: In some First Amendment contexts, news media are plausibly viewed as agents for “citizens,” and they (the media) get abundant First Amendment protection as a result. Yet media institutions actively manage their content, using agendas of their own design, and many of them are just as profit-oriented as any search engine (though few of them are as profitable as Google). (If you want to extend the “manage consumers’ desires” point, see the literature on agenda-setting, and of course consider advertising in traditional media.)
*If* you’re inclined to accept my First Amendment example, then what’s the difference between a news-organization-as-agent and Google-as-agent? Do the differences between IP jurisprudence and First Amendment jurisprudence justify the different treatments of the agency inquiry? Personally, I don’t see a difference grounded solely in IP v. FA. But if not that, then what? Maybe society should value citizen inquiry into the kinds of political issues that media cover (in theory), as a FA value, over the kinds of consumer inquiry that we might assume drives search engine use, as an IP value, so media are protected FA agents while search engines are unprotected IP agents. Different welfare metrics, as it were. See John Ely’s work. Again, I don’t buy it (cf. Neil Netanel), but maybe there’s something there to explore.
Note that I’m not making a positive claim that Google *is* an agent in any or all IP contexts; I’m merely raising the possibility and suggesting that the question deserves some careful exploration.
Mike
A few comments on the proxy point:
1) If we disaggregate the activities here into a “million little pieces,” many of those are bound to lose the fair use battle. It doesn’t seem likely that a court is going to sympathize with, say, someone’s desire to put together a collection of song samples or web articles on their computer. They’ll just say “get a license;” see, the CCC will only charge you $40 for a limited right to copy a web article.
2) If the Grokster litigation had been done in this way, perhaps I’d see a reason for looking at Google as proxy, too. But it wasn’t–as Glynn Lunney’s brief points out, the court never bothered to look at the alleged infringements on a “micro,” fine-grained level. To get to the secondary liability issues, it had to just assume that a lot of what was going on was illegal. And to avoid the issue of what constitutes “potential for substantial noninfringing use,” it had to whip up the inducement standard, focusing on the mens rea (?) of Grokster, rather than the type of empirical analysis done by the Sony district court.
3) In the end, I don’t think we should “disaggregate” here and look at individual acts. What Google is doing is of world-historical importance, as Mary Sue Coleman suggests here:
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/21/AR2005102101451.html
It’s sad that we haven’t put aside gov’t resources to do this kind of cataloging and archiving, but we haven’t. I wish we had, and then such an archive would be in an even stronger position, akin to that of the NLM in its suit with Williams & Wilkins. BUt even if it lacks status as a public utility, the synergy here is clear and enormous…much more is going on than the sum of the parts.
Fair enough. In evaluating the principal/agent possibility, is it really only a choice between Google as principal and individual as principal? Do we need to go all the way to disaggregating the problem into individual acts? Is it possible to look at Google as a proxy and simultaneously to preserve a sense of the social? I talk about this some in my Patterns piece, and again more recently in Groups, but I’m still trying to think it through.
Mike, I think the Google-is-a-proxy argument is analogous to arguing that every retailer is a proxy of its customers. This may be true at some level, but that’s not how the law has developed. From my perspective, “proxies” can generate incremental social welfare by playing an active role in intermediating the flow of stuff between the buyer/seller (or web publisher/searcher). Thus, we should be encouraging proxies/intermediaries to make those choices actively by immunizing them from liability for doing so. I develop this a little more in my search engine bias paper, and I am exploring this issue more in my brand spillovers paper.
Eric.
Eric,
A few thoughts:
Google isn’t exactly a retailer, is it? I’m not thinking of a goods/services distinction so much as a sense that Google doesn’t actually sell much to consumers/endusers. If I want a piece of information that I think is out there on the Web, I may search on Google, but when I find the data, I don’t think to myself, “Google gave that to me.” But maybe I’m unusual in that respect. Back to: How do people use Google? Meanwhile, I’m not taken by the analogy, at least not right away.
*If* intermediaries generate incremental social welfare by actively choosing material to deliver to consumers, then I’m going to pause before agreeing that the law should grant them broad immmunities from liability. Another approach, though not necessarily inconsistent with the immunity approach, is to mandate a high degree of transparency and openness in the intermediary’s operations. Note that in other regulatory contexts (utilities, for example), immunity from suit is often paired with rate-setting and other kinds of regulation.
Mike
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