Who Will Pay for the Content?
posted by Frank Pasquale
Mark Anderson has a concise overview of the big issues in search engine law up at the IEEE Spectrum. Here’s a taste:
[James] Grimmelmann writes that four broad areas of law—intellectual property, free speech, antitrust, and the openness of search algorithms—are still very much up for grabs in Internet search. And the next few years could see rulings, settlements, or legislation that will put some of the key legal cornerstones in place.
“The biggest undefined area is how far fair use extends in copyright,” Grimmelmann says, referring to the doctrine that allows for use of copyrighted materials for the purposes of education, public interest, or parody. How broadly Google or Yahoo or any of their peers can claim fair use to index Web sites, databases, books, and other copyrighted content, he says, is the essential issue. And the pending lawsuits filed against Google’s new Book Search engine are where Grimmelmann says the biggest legal aftershocks could originate.
My gut feeling is that we’re going to see a lot of settlements between Google and the big players here. (I wonder what the Predictocracy foresees?). On the other hand, another analyst (James V. DeLong) thinks it’s in Google’s interests to win its IP battles outright:
Several ways of financing the creation and distribution of content exist. Consumers can pay directly, either per ticket (a movie) or for a subscription (XM Radio). Ads can be sold, either combined with a payment (magazines) or stand-alone (broadcast TV). Or a distribution company can sell raw access to the network, and let the users worry about the content (telephone). And of course there are hybrids, where basic service is sold cheaply, and premium offerings bundled on top of it (cell phones, plus ringtones). . . . There is nothing wrong with advertising-based systems, but they should not be allowed to crowd out other forms of financing, in which the consumers of content are actually the customers (and thus the kings).
And this is where things get sticky, because for any other system to exist, defensible property rights must be restored to the system. . . .The concern about Google is based on a fear that it does not share this concern with restoring the viability of business models other than those based on advertising. Indeed, the concern goes further – that Google understands perfectly that the lack of property-rights based business models enhances its market power as the alpha dog of the ad biz, and that it will exercise its political and PR clout to prevent the development of alternatives. Hence its support for the academic communitarians, its hostility to proprietary software, its endorsement of net neutrality, its foot-dragging on YouTube filtering, its development of Android.
That’s a fascinating “free markets first” perspective on the problems raised by Google. But my sense is that you will eventually see Google itself becoming the enforcer, broker, and all-around consigliere that will both revitalize property-based models and reinforce the stratification in access to knowledge they can promote. I’ll be discussing these ideas more at NYU this Friday, and will try to blog about the talk (and comments) that afternoon.
Hat Tip: Siva.
January 30, 2008 at 9:09 am
Posted in: Cyberlaw, Google & Search Engines
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