Richard Epstein: Forget overflights - think implied consent

James Boyle: Google commie?

Google sees its mission as organizing the world’s information. That grand statement, however, contains one latent ambiguity that could shipwreck its controversial Book Library Project (BLP). Just who is “the world” anyway?

Taken in one sense, Google could structure its venture to respect the intellectual property rights of the many persons who own bits of the world’s information. Or Google could act as if the world itself holds all this information in one giant bin that Google is free to mine at will. The difference parallels two readings of the claim that all the people in a given town own their own homes. Does each person own his or her own separately? Or does every person have open access to each home within the town. Same sentence, with dramatically different implications.

The latent ambiguity in its mission statement has led Google to adopt two inconsistent strategies for its BLP. First, Google says it will respect the right of each copyright owner to opt out of its Book Project. Next, Google claims that the limited number of snippets (three) that it will display in response to any request for information counts as a fair use under copyright law. These two approaches are both wrong and inconsistent.

First, why must individual copyright holders let Google determine how this opt-out works? Beware that Google has structured the terms of its opt-out so that a major publisher can’t just say “Don’t include any books we have published in the last 50 years.” Google demands more precise information (ISBN numbers and the like) for each particular volume.

If Google can unilaterally put this burden on copyright owners, then so can all of its rivals, forcing both publishers and authors to expend valuable resources just to preserve the status quo ante. This “negative option” approach has been roundly rejected in traditional contexts, as with audacious publishers who send notices telling hapless addressees that they’re now subscribers for a year unless they return some opt out notice.

As between strangers, the recipient may throw the notice in the trash and keep any issues that arrive on the doorstep, free of charge. A vital exception allows these negative options to work to extend preexisting relationships on routine matters (e.g. credit card extensions at prevailing interest rates). The Google opt-out doesn’t come within a country mile of satisfying the voluntarist requirement of consent needed for a copyright license.

Note that this conclusion does not negate the entire Google search model, which today operates by making sweeps of public websites. In this context the claim of implied consent (which does work for BLP) really holds. People post stuff on web sites to be read, and Google helps them reach that objective without the hassle of millions of prior approvals. People can in general be presumed to accept deals that work to their real benefit. If some outlier makes it clear that Google is not welcome, that request should be honored. Indeed, in my view, the Google could make a respectable argument for implied consent (so long as it allowed block opt-outs by general description) for old and dormant works still under copyright. But for modern works with active markets, the net benefit of the Google sweep to a copyright holder is far from apparent. Absent a clear benefit to the owner, Google should come cup in hand to copyright owners and cut deals. In this age of micro-transactions it’s possible to make tiny payments for high-volume use.

If consent really matters, then fair use should be irrelevant. Conversely, if fair use were established, why would Google bother with consent? On balance, fair use seems a loser. Google isn’t quoting works to criticize them. Nor, as noted, do high transaction costs block any global licensing deals. Google has no reason to create or retain a live copy of its new data base that could easily have commercial uses beyond the snippets disclosed on individual requests. Nor is it clear why Google should make available one copy of its data base to its member libraries for their own internal use. Surely, it doesn’t inspire much confidence that its contract with the University of Michigan, for example, contains reciprocal indemnification provisions, where by Google will indemnify U of M for the “the receipt” of its digital copy, while U of M will do the same for Google with respect to its own “use or distribution” of that copy. It looks like no one has much confidence in the fair use defense.

So in the end, it’s back to consent, express or implied. The right strategy lets Google use its negative option for old and cold works still under copyright whose holders are likely to want the modest boost in sales and influence from greater Google exposure. But for hot or new work, Google should have to acquire licenses, just like Yahoo, for example, is now doing. Accept this framework, Google could work out a quick overarching deal with authors and publishers.

But if Google stays its current course, it’s likely to learn anew the old Biblical lesson that pride goeth before the fall.


James Boyle: Google commie?

James Boyle
© Financial Times

Reasonable people can differ on the merits of Google’s plan to make the world’s books as searchable as the pages of the internet. But Richard Epstein has picked a curiously misleading way of posing the issue.

Epstein makes an analogy between property in houses on the one hand and copyright on the other. Google, it seems, is staffed by a bunch of ‘commies’, whose plans are equivalent to asserting that all is owned in common and we can walk into each other’s houses as we wish. As he knows, there are huge problems with such an analogy. Am I allowed to break into your house and swipe your diary so I can put on a sketch ridiculing you in front of your neighbours? Can I crack your safe to get the blueprints of your machine, so I can build a competing one? No. Of course not. But I can copy big amounts of your book to parody it, making you a laughing stock and destroying your market. I can copy your computer program in order to “decompile” it and produce a competing program that is interoperable. I don’t need your consent because these are “fair uses,” limitations on the exclusive right the state gave you in the first place. In the end, your property over your book or invention will actually expire, another key distinction. Analogy is no substitute for analysis. If we must use an analogy with tangible property, try the one that Larry Lessig and others suggest. When aeroplanes first started to fly commercially, landowners sued for permission fees, asserting (correctly according to the theory of the day) that their property extended infinitely out into space. The courts said, effectively, “Don’t be ridiculous. If everyone can demand a permission fee for a use enabled by a new technology, the technology will never be developed.” Even in land, property rights serve both individual and communal ends, and courts will interpret rights so as to avoid a logjam of claims that will hold back technological development. In intellectual property, such an argument is much more powerful.

How do we get beyond mere analogies? We look to purposes. In the US copyright is not given to you because you worked hard, or are morally deserving. It is given to encourage the production and distribution of, and the effective public access to, knowledge and culture. But for most of the world, the books, poems, plays, the biographies and journals of the 20th century are effectively as inaccessible as the scrolls that burned in the Great Library of Alexandria. Most – estimates cluster around the 90 per cent mark – of the books produced in the last 70 or 80 years are under copyright but no longer commercially distributed. In many cases, no one knows who the copyright holders are, or how to get permission from them. And in any event, most of the world cannot find the material even if it had permission to use it. Google Library promises to change this equation, to make the work “findable” without producing a substitute for the book that the publisher still owns. That is completely in accord with the goals of copyright. In my view, it is a clear fair use – perhaps even without the opt-out provision, though that certainly strengthens Google’s case. A permissions-based system will not work because it leaves the indexer under legal threat for every book indexed, when in many cases no copyright owner can be found, and when the cost of copyright searches and permissions for every book would destroy the project. Solution? Allow the copyright holders who actually know what books they own to identify them and opt out. The ones who remain, retain their rights, and may even find new value infused into moldering volumes, long-forgotten. That is exactly the kind of use that fair use protects. Indeed, there are several judicial decisions that are right on point.

So if we must use an analogy, let Professor Epstein send a cheque to each landowner whose property he flies over. For myself, I’ll take air travel, and the promise of a digital reincarnation of the Great Library of Alexandria in every house connected to the Net.

James Boyle is William Neal Reynolds professor of law at Duke Law School. His new co-authored work, Bound By Law , a “graphic novel” (aka. comic book) dealing with the effects of intellectual property on documentary film, will be published in March.


Richard Epstein: Forget overflights - think implied consent

Let me briefly respond to James Boyle’s view that I have used the wrong analogy with respect to the Google print dispute. He suggests, wrongly, that Larry Lessig has the correct analysis when he says think of this situation like the airplane overflight issue that came before the courts in the first half of the 20th century. I have thought of that analogy and addressed it in detail for the Progress and Freedom Foundation publication, Network and Copyrights: A False Analogy (November 2005).

The gist of the answer comes in this form. The early cases never allowed for a land owner to block the upper airspace by virtue of the ownership of the ground. The logic was that the blockade would render air traffic impossible, and this in turn would hurt the very landowners who asserted the rights in question. Each got compensation for what they lost in the form of the right to use (or to purchase from those who used) the air rights over others. It was an orderly transition in those cases where market forces could not overcome enormous holdout problems, so that state coercion had to be inserted to overcome paralysis for the benefit of all players.

The actual litigation was over lower airspace, where the question was whether ground owners who suffered physical injury were entitled to compensation, where the answer was yes for direct overflights The blockade was answered by an explicit taking, and the compensation served two functions. First, it prevented some individuals from coming up short in the transition to air transport, and second, it gave governments and incentive for efficient siting of these facilities. It is tempting to put airports in high rent districts if you don’t have to pay for the losses on the ground.

The second point is more critical here. There are no opt-outs in the overflight context. Everyone is forced in because a change in a default rule only is an invitation for disaster. People will opt into a ruinous regime. But Google allows the opt out. Why? Because it does not face a network problem. It does not have to have every book in the world to have a useful data base. Fair use is not the right tool in this case because it blocks the formation of real markets, which are possible here. So that is why I moved toward implied consent for “old and cold” works, but not for new or hot ones. Fair use is that it should never be converted into a club that allows for the destruction of viable voluntary markets. The overflight analogy offers no guidance as to how that process might work.

Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law, The University of Chicago, and the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution.

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