22 October 2005

Author's Guild v. Google (9): Of Chickens and Eggs

at [UTC–8]
The entire dispute arises from a multidimensional culture clash among authors,23 publishers, libraries, ordinary readers, and information entrepreneurs.24 In no particular order, those dimensions include:
  • The historical difficulty and expense of printing books, which is entirely discounted by most information entrepreneurs. The key problem here is the assumption that conditions at toriginal publication are comparable to those at tcopyright renewal and to those at tnow.
  • The refusal to recognize that the means and ends of the Copyright Clause are interdependent. On the one hand, we have overreaching by people like Margaret Mitchell's heirs, on the ground that "exclusive right" is unlimited in scope and purpose; on the other hand, we have "information wants to be free"25 advocates who look only to "promoting Progress" and forget that the Constitution specifies the means to be used.
  • The frustration of ordinary readers in not being able to obtain the materials they want/need in a timely fashion because those materials are relatively rare physical items held somewhere other than their local libraries. That's not to say that libraries don't feel the same frustration; they've just learned to live with it better.
  • The conception that all information has approximately the same (minimal) value that seems to underly much of information entrepreneur culture.
  • The continuing struggle between authors and those who exploit their works over accurate accounting for their works.
  • The inability of publishers and ordinary readers to communicate—let alone agree—on what needs to be printed, how long to keep a work in print, and how to price or distribute that material.

The real problem here is inherent market failure at the boundaries of intellectual property, which itself has several dimensions. Most market theory is Coase-positive, in the sense that it assumes that most markets are—or, at least, ideally should be—compliant with the Coase theorem. Nowhere, however, is the endowment effect more apparent than in psychological, actual, and creative claims of authorship. Throw in grossly unbalanced initial power and economic resource allocations and information asymmetries that would be laughed off a law-school final exam as completely implausible, stir in the disjuncture between copyright (and, for that matter, patent and trademark) duration and both the perceived rate of Progress and lengthening lifespans,26 and we have the ingredients for a swirling brew of conflicts troubled by hotspots no amount of stirring seems able to disspell.

No, I don't have a universal solution. Neither, however, do I have a whole lot of respect for either side in Author's Guild v. Google (and only a little bit more for the AAP version). Both sides are so focussed on short-term enlightened self-interest that they've forgotten that overriding purpose: encouraging Progress.

  1. In the generic sense. Arriba Soft points out that it's not just wordsmiths who have copyright interests that are the subject of this kind of dispute.
  2. This includes both the actual "information sellers" like Google and those who would acquire others' information for reuse for their own purposes. The latter group tends to attack both databases and copyrights. Ironically, it is often more dismissive of copyright claims than of "sweat of the brow" claims in databases—at least, I find it ironic in the face of Feist.
  3. Conversely, entertainers want to eat.
  4. And perhaps—or more than perhaps—the continuing expansion of leisure in absolute and relative terms (and, for that matter, in perceived value).