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The Grip of a Narrative

The Google Print cases pique my interest, not least because I study and teach i.p. law. Mike, Siva, and others have offered sharp insights and comments about Google Print and the cases. Mike’s two posts, one on the common law method and one on narrating Plamegate, helped crystallize a few of my thoughts on the Google Print suits, as well as the common law method.
We understand new events, at least in part, by using familiar narratives. Using the familiar narratives no doubt obscures some parts of the new experience. At the same time, we’re not slaves to the narrative. If we focus our attention, work through our experience with active understanding, we can both see the new experience more clearly and enrich the narrative with new variations.
I enjoy reading about the Google Print suits in part because I see us struggle to use our familiar copyright narratives (about creativity, control, and fair returns) and to update them to take account of new questions raised by the prospect of a searchable digital archive of most (maybe all?) print books. How can one do anything but enjoy questions like, are books good for you?
We have a healthy stock of narratives for one-to-many communication, given the long history of the book and of publishing more generally, as well as radio and television. We also have an ample stock of narratives for one-to-one communication over great distances, given our already-long experience with semaphores, telegraphy, and telephony. Wikis, social tagging, and blogs are sparking new narratives about global, enduring many-to-many communication. (I suppose free and open source software are important forerunners of this last group, although with a focus on producing usable software, rather than enduring social experience.)
Our narratives about digital search, like those for digital many-to-many communication, strike me as still quite new. The Google Print suits, and the Open Content Alliance‘s different approach, show that our narratives for search are not only young, but also quite contested. We’re struggling, in part, to figure out how best to talk about these phenomena. Google and the publishers will no doubt struggle to offer the most compelling narrative, given our existing stock of stories and the highly particularized facts of Google’s deals with its cooperating libraries.
What has any of this to do with the common law method? We take one dispute at a time. We understand the case against a backdrop of precedent (the familiar narratives that are most pertinent), and we also give the parties the freedom (within limits) to teach us what is new and different about the particular case … to show us what the familiar narrative misses (if one must champion a new understanding), or what it appropriately highlights (if one must champion the established approach). The common law’s genius, for me, is just this way it ensures that a familiar narrative doesn’t ossify into a mental deadend.
The Google Print suits are not just bet-the-company cases. They’re not even bet-the-internet cases. They’re bet-the-mind cases.

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