Copyright’s Failure as Countervailing Power
posted by Frank Pasquale
Last week BusinessWeek asked “Is Google Too Powerful?” The article was a nice rundown of Google’s rivals and allies, but didn’t really ask some of the toughest questions the search engine provokes. Nevertheless, it was thought-provoking.
Quoting “Geoffrey A. Moore, author of The Gorilla Game: Picking Winners in High Technology and a managing director at corporate strategist TCG Advisors,” the piece notes that “‘Ecosystems always organize to curtail entities that get too powerful.’” So how’s that happening? Don’t count on the guv’mint: there’s only “cocktail party chatter about whether the search giant’s power needs to be reined in by antitrust regulators.” The article implies that just about the only hope for Googlephobics is copyright enforcers. After settlement talks with entertainment cartels failed, “Google may be in the unaccustomed position of having to crawl back to Hollywood with hat and checkbook in hand to get access to the content.”
But would that really bring Google to heel? Or just enhance its power? Note that AFP and Google have just settled their dispute out of court. Presumably, AFP will use this settlement as a sort of precedent to threaten any other search engine that covers their articles with a copyright suit. That in turn will entrench the dominance of those search engines (such as Google) which have the money to license the content. GooTube may well become the iTunes of movies….with all the DRM bells and whistles coming down the pike.
Perhaps this is too speculative, but “what ifs” have led to some fascinating IP scholarship, and I think a few cautionary notes are in order….
In his Structure of Search Engine Law, James Grimmelmann has pointed out that a SE like Google is really the agent of various groups with very different interests–consumers looking for content, content owners trying to be found (or not), aspiring surveillers, and various other entities affected by Google’s new mapping of the digital domain. Grimmelmann cautions that any decisive legal intervention in a range of cases now working their way through the courts might deform the search space.
I think we might want to be similarly cautious when a search engine appears too cozy with any of the groups it’s effectively an “agent” of. Are they becoming a “captured categorizer,” effectively sacrificing certain user rights they had once enabled at the altar of a settlement agreement that allows the SE and the content owner to appropriate and split those consumer gains?
Admittedly it’s too soon to tell if this has happened in the AFP case, or will happen in the Viacom v. GooTube case. But one thing is clear: as prescient skeptics like Siva Vaidhyanathan have long sensed, copyright law may well be the thing that seals Google’s dominance in the information ecosystem…and not the “countervailing power” it is so often assumed to be.
Photo Credit: Flickr/Keso.
April 9, 2007 at 12:00 am
Posted in: Google & Search Engines
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