On Designing the Network
Susan Crawford has a typically insightful post about the role of competition in communications law, and how competition policy may… Read More »On Designing the Network
October 2005
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… Read More »The Grip of a Narrative
Common Law and Institutional Design
Beth Noveck posts some interesting reflections on reading Fred Schauer’s recent piece, The Failure of the Common Law (36 Ariz. St. L.J. 765 (2004)). Schauer argues, descriptively, that the common law really isn’t so superior after all, since it relies on faith in a certain set of customary social patterns, and the growing particularization of law shows that the faith is fading. In light of Schauer, she wonders, what forms will legal institutions take? Look not to the common law in particular, or to institutional design in general, but to novel forms of lawmaking: open standards for software and open access principles for content. Debates between open and closed content will pull lawmaking away from older rules/standards dichotomies and into new, blended institutional designs that accommodate new customs, built on open and closed interests.
I wonder whether this line of thinking casts “the law” too narrowly as “the decisionmaker(s).”
Reporting for Duty
Greetings to Madisonian Theory regulars! I’m honored to join Mike and Brett, making the transition from loyal reader to novice… Read More »Reporting for Duty
Google Bad, Library Good — Follow Up
Below, I promised a more thoughtful response to Siva Vaidhyanathan’s recent posting about the virtues and vices of relying on Google to represent fair use in the context of Google Print.
Siva is suspicious of allowing Google to carry the fair use banner, when an authentic Library (capital L!) would be far, far better. Stripped to its essence, his reasoning is that Google = commerce, and has no incentive to pursue the public interest; Libraries = the public interest, and have every incentive (absent Google’s warping their view) to do the right thing.
Here’s where I think this argument goes wrong: