Dilemmas of Categorizers
Categorizers, reviewers, and indexers have existed long before the internet, but the rise of digital technology has intensified the legal implications surrounding their roles Previously, locating a book by subject was limited to matching keywords in a card catalog, but now, digitized searches allow the entire text to serve as an index Additionally, before the web, viewers could only see film reviews accompanied by clips through television programs hosted by critics, often financially tied to the films they reviewed Today, technology has removed these barriers, enabling reviewers to easily share clips that visually support their critiques.
However, there are many legal barriers Section 106 of the Copyright Act grants copyrightholders six exclusive rights
Any attempt by a reviewer to isolate clips from a film can infringe upon the owner's exclusive rights to copy the material This unauthorized reproduction of the film undermines the legal protections afforded to the original creator.
In his work "The Economy of Prestige," James F English highlights the historical practice of honoring exceptional individuals across various cultural fields, a tradition that can be traced back to the Greek drama and arts competitions of the sixth century B.C This custom of recognizing outstanding contributions with special tokens of esteem underscores the long-standing value placed on cultural excellence.
The U.S copyright law, specifically 17 U.S.C § 106, outlines several exclusive rights granted to copyright holders These rights include the ability to reproduce the copyrighted work in copies or phonorecords, create derivative works, publicly perform the work across various formats such as literary, musical, and dramatic pieces, and publicly display the work, which encompasses a wide range of artistic forms Additionally, copyright holders have the right to perform their works publicly through digital audio transmissions, particularly in relation to sound recordings.
According to 17 U.S.C § 106(1) (2004), copying a work infringes the owner's exclusive "Reproduction Right," which can classify the work as a "derivative work." When a copy is placed on a website, it may be considered "distribution" or even a "public performance," depending on the number of individuals who can access the site Importantly, even if the copied clip does not negatively impact the film's market, the copyright holder retains the right to sue for statutory damages, which can reach up to $150,000 for willful infringement.
Despite potential legal challenges, many people continue to share and comment on copyrighted materials such as movie clips, music, and images When these individuals provide commentary on the original works, they may be able to invoke a "fair use" defense, which serves as a protective measure within copyright law.
The exclusive right to create derivative works from copyrighted materials is established in 17 U.S.C §106(2) A derivative work is defined as any creation based on preexisting works, including translations, musical arrangements, dramatizations, fictionalizations, motion pictures, sound recordings, art reproductions, and adaptations Additionally, works that involve editorial revisions or modifications that result in an original authorship are also classified as derivative works according to 17 U.S.C § 101 (2004).
30 The “distribution” right is codified in 17 U.S.C § 106(3)
(2004), and the “public performance” right is codified in 17 U.S.C § 106(4) (2004).
Under copyright law, the copyright owner has the option to choose statutory damages instead of actual damages and profits before a final judgment is made This applies to all infringements related to a single work, allowing for recovery from individual infringers or multiple infringers jointly and severally, with a minimum sum specified.
Under 17 U.S.C § 504(c)(1) (2004), statutory damages for copyright infringement can range from $750 to over $30,000, depending on what the court deems appropriate If the copyright owner proves that the infringement was willful, the court may, at its discretion, increase the statutory damages to a maximum of $150,000 as outlined in 17 U.S.C § 504(c)(2) (2004).
The fair use of copyrighted works encompasses reproduction in various formats for purposes like criticism, commentary, news reporting, education (including classroom copies), scholarship, and research, and is not considered copyright infringement.
17 U.S.C §107 (2004). wide range of uses unauthorized by copyrightholders 33 To the extent the user’s commentary is more voluminous than the clip or sample involved, the fair use defense is stronger 34
The rise of automated categorizers like search engines is challenging the boundaries of fair use, as their ranking of cached content is viewed as a form of expression protected by the First Amendment However, numerous content owners, including book publishers, sports broadcasters, and news services, argue that Google's practice of copying their content into its databases and providing
Search engines raise significant copyright concerns, particularly when their contributions to content are minimal While a lengthy review of a short film clip might typically qualify as fair use, the ambiguity surrounding fair use laws complicates this assumption This leads to the question: if a categorizer merely organizes and ranks content, does that justify potential copyright infringement?
The "fair use" defense permits the public to utilize not just the facts and ideas from copyrighted works, but also the expression itself under specific conditions This legal doctrine provides significant flexibility for academic scholarship and commentary.
34 See 17 U.S.C § 107(3) (2004) (calibrating the fair use defense to the “amount and substantiality” of the work used)
35 Search King Inc v Google Tech., Inc., No CIV-02-1457-M, at
In a ruling by the W.D Oklahoma court on January 13, 2003, two critical questions were addressed regarding PageRanks: whether they are constitutionally protected opinions and if their publication is lawful under Oklahoma law, thus preventing tort liability for any intentional or malicious manipulation by Google The court affirmed that PageRanks are indeed protected under the First Amendment and that their publication is lawful, thereby shielding Google from liability related to their manipulation.
36 I have discussed the nature of the ranking in connection with the SearchKing case, in Rankings, Reductionism, and Responsibility,
55 Cleveland St L Rev 777 (2006) In SearchKing, Google successfully resisted an action sounding in defamation and unfair
The legal disputes surrounding Google's search engine services are highly contentious, as highlighted in Part II Key players such as the Author’s Guild, major publishers, and Agence France Press assert that Google's current and future offerings violate their copyrights This section evaluates the validity of these claims, paving the way for a deeper analysis in Part III to determine which party's position warrants support.
Case Study: The Google Print Project
Sergey Brin once described the ideal search engine as resembling the "mind of God," highlighting the ambitious goals of general-purpose search engines Their business model relies on being the primary source of information for users seeking resources or websites without knowing their URLs Users will only trust a search engine as a comprehensive portal if they believe it has effectively indexed relevant information For instance, if a user searches for "resorts near Cancun" and realizes a specific search engine only lists American sites, they are likely to avoid using that engine.
While the Cancun example may seem exaggerated, it highlights the issue of search engine rankings being labeled as "opinion" rather than "fact." Although I hesitate to grant First Amendment protections to search engine rankings, I believe these rankings possess sufficient expressive content to warrant copyright protection similar to that afforded to reviewers.
37 Complaint, The Author’s Guild v Google, Inc., paragraph 3
(filed in S.D.N.Y.) (on file with author) (alleging that, “[b]y reproducing for itself a copy of those works that are not in the public domain Google is engaging in massive copyright infringement.”);
Complaint, Agence France Press v Google, Inc., paragraph 28 (filed in D.D.C., Mar 17, 2005) (on file with author) (alleging that,
“without AFP’s authorization, Defendant is continuously and willfully reproducing and publicly displaying AFP’s photographs, headlines, and story leads on its Google News web pages.”)
38 Quoted in Siva Vaidhyanathan, A Risky Gamble with Google,
The importance of comprehensiveness in search engines is underscored by their ongoing competition to index the most websites While major general-purpose search engines in the U.S strive for extensive coverage, they also respect the preferences of individual site owners by adhering to directives from a "robots.txt" file, which can prevent certain sites from being indexed.
“source pages.” 42 This opt-out strategy has worked well in the online context because Digital Millennium Copyright Act immunizes “information service providers” from copyright liability for caching websites 43
While express immunities do not extend to books, Google has sought to implement an opt-out strategy for the texts indexed in its "Google Library" project This pursuit of comprehensive search capabilities has led search engines to expand their reach beyond online content and into printed materials, with all major search engines now scanning books to create online databases However, Google remains the only search engine actively engaging in this extensive initiative.
39 China does adopt an analogous policy, having constructed
“what is known in academic circles as the great firewall of China,” which keeps government-censored sites from reaching its citizens.
See J OHN B ATTELLE , T HE S EARCH : H OW G OOGLE AND I TS R IVALS
R EWROTE THE R ULES OF B USINESS AND TRANSFORMED OUR CULTURE 204 (2005)
40 Danny Sullivan, Search Engine Size War Erupts, S EARCH
E NGINE W ATCH , Nov 11, 2004, available at http:// blog.searchenginewatch.com/blog/041111-084221 Database comprehensiveness benefits searchers because it increases the odds that searchers with esoteric search objectives will have a successful search.
41 Danny Sullivan, End Of Size Wars? Google Says Most
Comprehensive But Drops Home Page Count, S EARCH E NGINE
W ATCH , Sept 27, 2005, at http://searchenginewatch.com/searchday/article.php/3551586.
42 See generally Google, Need to remove content from Google's index?, available at http://www.google.com/webmasters/remove.html Other large general-purpose search engines follow similar policies
44 Elinor Mills, Microsoft to offer book search, Oct 25, 2005,
(available at committed to copying copyrighted books into a database and making them textually searchable 45 (In the future, searches for
“resorts near Cancun” might not just generate links to relevant websites, but also snippets of text from relevant books like
Google allows copyright owners to exclude their books from its database by notifying the company of their objections This opt-out policy has sparked significant backlash from the Author's Guild and major publishers, leading them to file a lawsuit to halt the Google project.
Google has formed partnerships with five prominent libraries, including the University of Michigan, Harvard University, Stanford University, the New York Public Library, and Oxford University, to create a vast digital library utilizing their collections.
45 See, e.g., Edward f, Google Adds Library Texts to Search Database, N.Y Times, Nov 3, 2005, at C1.
Google is accused of unlawfully reproducing copyrighted literary works without obtaining necessary authorization from copyright holders, despite being aware of the requirements set forth by the Copyright Act (17 U.S.C § 101 et seq.) The company allegedly plans to create and display these digital copies for its own commercial gain, aiming to attract more viewers and advertisers to its platform.
The University of Michigan at Ann Arbor has permitted Google to scan its extensive collection of approximately 7.8 million works, while Stanford University is considering the inclusion of potentially millions from its over eight million volumes.
The Author's Guild expresses concern over Google Tech., Inc.'s contract with the University of Michigan, particularly regarding the digital copies of library holdings that will be provided to the libraries At the Yale Search Conference, Paul Aiken, a representative from the Guild, worried that universities might allow libraries to make course reserve readings available online Each university has control over which books are scanned and will receive copies as per their agreement with Google The tech giant plans to digitize over fifteen million library volumes, investing approximately $150 million in the process Users will be able to search for terms within this extensive database, retrieving relevant results efficiently.
Google's distribution terms for Google Print vary based on copyright status, allowing full access to public domain materials Users can view entire pages containing their search terms and have the option to read or print the complete book.
Copyright owners can also make their books available in this way, but very few choose to do so 52 More likely, a
Yale Information Society Project Conference on Search Engines, Dec.
3, 2005 Given the coursepack cases discussed below, Mr Aiken likely has a legal basis for demanding compensation for such a use
49 See Susan Wojcicki, Google Print and the Author’s Guild,
Official Google Blog, available at http://googleblog.blogspot.com/2005/09/google-print-and- authors-guild.html (last visited Dec 20, 2005).
50 John Markoff & Edward Wyatt, Google is Adding Major
Libraries to its Database, N.Y TIMES, Dec 14, 2004, at A1.) For comparative information on costs of digitization, see The Library of
Amazonia, Wired (describing process of creating Amazon’s “Look-
51 Even the project’s critics acknowledge the enormous gains in access to knowledge the project promises See Siva Vaidhyanathan, A
Google's ambitious initiative to digitize millions of bound books from five major English-language libraries brings the dream of a perfect research machine closer to reality This project aims to provide online access to the full text of public-domain books, which typically include works published before 1923, as well as government documents and other materials that are not under copyright Additionally, Google plans to offer excerpts from copyrighted works, enhancing the availability of literary resources for research and education.
Larry Lessig’s "Free Culture," accessible at http://www.free-culture.cc/ includes a PDF version of the book When copyright owners submit their works to Google Print, they can select the option that allows searchers to view a full page of text surrounding their search results, along with a few adjacent pages Additionally, the results page offers links to online retailers where the book can be purchased.
When copyrighted works are not recommended to Google by their publishers, users encounter limited results, primarily consisting of bibliographic information and brief excerpts related to their search terms The results page also features links to additional online resources, retailers selling the book (including used copies for out-of-print works), and local library locations To protect copyright holders, Google restricts users from printing, saving, or copying text, allowing only on-screen reading While this approach may not optimize revenue for copyright holders, it offers distinct benefits for authors aiming to share their ideas widely.
On April 28, 2004, the G ROKS S CIENCE P ODCAST discussed the rapid development of various formats for a book, including an audio version, a wiki adaptation, and translations, all created shortly after the book was published online This highlights the efficiency and immediacy of digital content creation in today's technological landscape.
53 See Google, What you'll see when you search on Google Book
The Snippet View functions similarly to a card catalog, providing essential information about a book along with brief excerpts that include a few sentences relevant to your search term.
Indeterminate Legal Analysis
From Maximizing to Optimizing Expression
Copyright law can hinder search engines' ability to create an authoritative index of copyrighted content and discourage smaller organizations from using works for illustrative purposes In an era of data proliferation, this is problematic as metadata plays a crucial role in organizing and classifying information A balance must be struck to prevent aggressive litigation from allowing content owners to exert excessive control over copyrighted materials.
David Weinberger highlights that while the debate over ownership of digitized book content is significant, the more crucial issue for readers lies in managing the associated information, or metadata.
Metadata refers to information that describes how, when, and by whom a particular set of data was collected, as well as how the data is formatted It is often defined as "data about data," exemplified by a library catalog card that provides details about a book's contents and location Metadata typically includes the source or author of the dataset, access instructions, and limitations, as well as the relationships among different data sets While Wikipedia may not be an authoritative source, it offers clear and reliable definitions that can reflect current public understanding, making it a useful reference for technical terms.
Current academic discussions on copyright often overlook the critical role of categorizers, instead treating all copyrighted works as equally valuable To address this, it is essential to balance the promotion of expression with an honest acknowledgment of its associated costs One proposed approach is to compare the issue of information overload to environmental pollution If copyright holders view strong fair use exceptions as a loss of potential licensing fees, it is equally valid to see these exceptions as a form of compensation to society for the information overload they contribute to.
98 An anti-commons develops when fragmented ownership causes high transaction costs that stunt the development of a resource. Michael Heller, The Tragedy of the Anticommons: Property in
The transition from Marxist principles to market-based approaches highlights a critical observation by Garrett Hardin: inadequate property rights can result in resource overuse Conversely, anticommons theorists argue that excessive property rights can lead to the underutilization of resources, emphasizing the need for a balanced approach to property ownership to optimize resource management.
A comprehensive assessment of the externalities associated with information overload could offset any perceived loss in licensing fees for fair use by categorizers However, current discussions on copyright often overlook this perspective Many scholars involved in copyright debates assume that increasing expression is inherently beneficial, viewing copyright's constitutional aim—to advance the arts and sciences—as merely a means to incentivize creativity Copyright expansionists highlight the positive effects of enhanced legal protections for creative works, while advocates for a broader public domain argue that excessive control by current owners can inflate the costs of essential resources for future information creation, ultimately stifling expression These assumptions, which tend to minimize the costs of expression, place categorizers at a disadvantage in the ongoing normative discussions about their use of copyrighted materials.
Scholarship in copyright often seeks to balance the dual roles of copyrighted works within market economies The foundation of intellectual property relies on the belief that commodifying information will incentivize its creation However, achieving this goal requires addressing the complexities inherent in the relationship between copyright and the market.
99 Jane C Ginsburg, Legal Protection of Technological
Technological measures that enhance legal control can foster authorial entrepreneurship by allowing creators to secure the distribution and payment for their works, potentially leading to the emergence of innovative business models.
101 J AMES B OYLE , S HAMANS , S OFTWARE , AND S PLEENS : L AW AND THE C ONSTRUCTION OF THE I NFORMATION S OCIETY 37 (1996) (“[P]erfect information is one of the elements of the perfect market.
The commodification of information introduces transaction costs and creates a limited monopoly within a system that claims to be competitive In an ideal market characterized by "perfect information," both consumers and producers possess complete knowledge of product utility However, when such information is safeguarded by copyright law, it becomes less accessible to the public This tension is especially pronounced in the sale and licensing of copyrightable expressions.
The true value of an "experience good" is often difficult to determine without firsthand exposure In many cases, free access to the product can effectively replace the need for the product itself, a concept known as Arrow's "paradox of disclosure."
Information serves a dual role in the economy, acting as both a "finished good" and a "raw material" for future innovations Legal regulations that increase the cost of copyrighted musical lyrics may encourage more lyricists to enter the market, but they can also lead to higher recording prices Consequently, the Recording Industry has consistently lobbied Congress for a compulsory licensing system that allows access to musical lyrics and compositions at a low, flat rate.
102 George Stigler, The Economics of Information, in
F OUNDATIONS OF THE E CONOMIC A PPROACH TO L AW 259, 263 (Avery Weiner Katz ed., 1998); George Akerlof, The Market for
Lemons: Qualitative Uncertainty and the Market Mechanism, in
F OUNDATIONS OF THE E CONOMIC A PPROACH TO L AW 265, 268 (Avery Weiner Katz ed., 1998); Joseph E Stiglitz, Information, in
T HE C ONCISE E NCYCLOPEDIA OF E CONOMICS (David R Henderson, ed 2005), available at http://www.econlib.org/library/Enc/Information.html (last visited Jan.
10, 2006) ("Many of the central theories and principles in economics are based on assumptions about perfect information.") For the legal implications of this assumption, see Boyle, Environmentalism for the
Net, supra note Error: Reference source not found, at 92 (“Barriers to the free flow of information lead to the inhibition of innovation [and] inadequate circulation of information.”)
103 See Kenneth Arrow, Economic Welfare and the Allocation of Resources for Invention, in T HE R ATE AND D IRECTION OF I NVENTIVE
The principle of 'fair use' law plays a crucial role in ensuring that future creators have access to sufficient raw materials for their work.
105 See Theresa Bevilacqua, Time to Say Good-Bye to Madonna’s
American Pie: Why Mechanical Compulsory Licensing Should be Put to Rest, 19 C ARDOZO A RTS & E NT ’ T L J 285, 285 (2001) (noting considerably less willing to recognize that its own music is
“raw material” for DJ’s, filmmakers, and other creative workers 106
Numerous scholars have sought to address the tensions between "commodification/perfect information" and "finished good/raw material." Over the last two decades, the reliance on information economics has bolstered the credibility of these efforts However, the conclusions drawn from information economics often remain ambiguous in specific conflicts, due to the aforementioned tensions.
—the “copyleft” and “copyright expansionists”—have each developed rival prescriptions for maximizing expression in the midst of these tensions.
Scholars and policymakers advocating for broader copyright protections often compare intellectual property to real property, highlighting the "tragedy of the commons" analogy Similar to how a common pasture can be overgrazed when accessible to all, the unrestricted ability for anyone to rearrange, record, and sell existing works could lead to overexploitation of creative content.
106 Joel Rose, Copyright Laws Severely Limit the Availability of
A recent Library of Congress study revealed that over 70 percent of American music recorded before 1965 is not legally accessible in the United States This issue is largely attributed to the "clearance culture" within the music industry, where obtaining licenses for even the smallest samples has become a standard practice.
F AIR U SE S URVIVE ? F REE E XPRESSION IN AN A GE OF C OPYRIGHT
An Ecology of Expression
Information Overload as Externality
Nuisance claims, anti-pollution laws, and taxation serve as methods to internalize the costs of pollution imposed by their creators In his 1997 book, "Data Smog," David Shenk highlighted the issue of "information overload," where producers of information contribute to a haze of conflicting claims that obscure the truth Similarly, in 1991, James Boyle called for an analysis of "information pollution," emphasizing the need for economic systems to address the consequences of overproduction This article responds to Boyle's call by recognizing the externalities of information overload and proposing adjustments to copyright doctrine to help internalize these effects.
While skeptics acknowledge that information overload is a significant issue in modern culture, they may challenge its classification as an externality, often viewing externalities through a more quantitative lens Conversely, humanists critique this perspective, arguing that the discussion around overload should focus on the societal ideals we aspire to rather than solely on individual harms Despite the differing viewpoints of orthodox economics and cultural studies, both frameworks highlight the potential of the externality concept to bridge these contrasting approaches, emphasizing the need for a comprehensive understanding of information overload.
162 D AVID S HENK , D ATA S MOG , supra note 134, at 11. (condensing a variety of social scientific observations into thirteen
163 James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 C ALIF L R EV 1413,
An economics perspective that fails to recognize the impact of individual transactions on society is fundamentally flawed; however, a communitarian social critique that is not effectively translated into the economic language of policy science lacks strength and relevance.
As empirical methods increasingly supplement or replace mathematical modeling in economics, the discipline is gaining significance by effectively modeling competition and value creation in various aspects of human experience Similar to how chemistry, biology, and physics evolved from natural philosophy, modern fields of information are emerging, reflecting this shift in economic analysis.
The term "cultural studies" encompasses various fields such as sociology, history, anthropology, political science, and social sciences that reject the methodological individualism prevalent in economics For a deeper understanding of the contrast between methodological individualism and holism, refer to Ernest Gellner's work, "Holism versus Individualism," found in "Readings in the Philosophy of the."
S OCIAL S CIENCES 254 (May Brodbeck, ed., 1968).
166 This formulation follows Einstein’s famous observation about science and religion (“Religion without science is blind; science without religion is lame.”); see http://quoteworld.org/quotes/4186
167 Richard A Posner, Rational Choice, Behavioral Economics, and the Law, 50 S TAN L R EV 1551 (1998); Tanina Rostain,
Educating Homo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement, 34 L AW & S OC ’ Y R EV
973 (2000); Martha C Nussbaum, Flawed Foundations: The
Philosophical Critique of (a Particular Type of) Economics, 64 U.
C HI L R EV 1197, 1199 (1997) These trends suggest that small communities of expertise are driving progress in economics, and the social sciences generally See I AN S HAPIRO , T HE F LIGHT FROM
R EALITY IN THE H UMAN S CIENCES 15 (2005) (encouraging social scientists to “confront the complexities inherent in the relational logics of ideals.”)
168 See David Colander, et al., Preface, in T HE C HANGING F ACE
OF E CONOMICS : C ONVERSATIONS WITH C UTTING E DGE E CONOMISTS
Experimental economics is transforming economists' approaches to empirical research, while ecological economics is reshaping the perception of the relationship between nature and the economy.
Natural philosophy refers to the exploration of nature and the physical universe prior to the rise of modern science In contemporary economics, various fields such as labor, behavioral, and health economics are evolving to address the limitations of traditional microeconomic theory Two significant challenges to this conventional theory include the increasing awareness of how individual consumption choices affect the consumption and production capacities of others, and the emergence of hermeneutical economics, which focuses on in-depth interpretations of the significance of economic exchanges rather than solely relying on quantification and modeling.
Consider the role of millions of pounds of used computers dumped in sites in lesser developed countries over the past decade 173 The computers contain various heavy
P ICTURE 3 (1986); J OHN D UPRE , T HE D ISORDER OF T HINGS :
M ETAPHYSICAL F OUNDATIONS OF THE D ISUNITY OF S CIENCE 7 (1995) (criticizing reductionism as philosophically nạve because “the dream of an ultimate and unified science is a mere pipe dream”); B ERNARD
P ULLMAN , T HE H ISTORY OF THE A TOM IN W ESTERN T HOUGHT 12
(2001) (describing persistent lure of reductionist thought).
170 For example, there are now distinctions between mainstream, orthodox, and heterodox economists See David Colander, et al.,
Preface, supra note Error: Reference source not found, at 8-9 Anita
Bernstein has noted (with some skepticism) the resulting pluralism in law and economics scholarship Bernstein, Whatever Happened to
Law and Economics has lost its unique intellectual characteristics, rendering it incapable of providing insights or policy suggestions that are not available from external sources As a result, it has devolved into an exclusive group with unclear and arbitrary membership criteria.
171 See J ON E LSTER , S TRONG F EELINGS : E MOTION , A DDICTION ,
AND H UMAN B EHAVIOR 106 (2006) (discussing “emotions as the object of social norms”); Nicholas Economides.
172 See, e.g., the collection Economics and Hermeneutics; Tyler Cowen, Good and Plenty; Deirdre McCloskey, If You’re So Smart;
Oz Shy, The Economics of Networks (section discussing modeling as secondary to narratives about economic reality)
173 Basel Action Network, High-Tech Toxic Trash Exported to
A report titled "The Digital Dump: Exporting High-Tech Re-use" highlights the significant issue of pollution caused by the degradation of natural resources, where one group inflicts harm on another without compensation While the impacts of information overload may seem less tangible than pollution, they create real challenges by making valuable information harder to access.
In a world filled with overwhelming signals, it can be challenging to discern the valuable information we seek amidst the noise Irrelevant data often muddles our understanding, making it difficult to extract meaningful insights, much like retrieving metal from low-grade ore.
Or, one might say, clean water from increasingly polluted aquifers 178 Given the directness of the analogy, it should not be
The article highlights the troubling reality of a growing global trade in toxic and obsolete electronic waste, particularly discarded computers, which are shipped from North America and Europe to developing countries in Africa This practice, driven by waste brokers and recyclers, reveals the harsh consequences of e-scrap disposal, exposing the environmental and health risks faced by these nations.
175 R OBERT D C OOTER , T HE S TRATEGIC C ONSTITUTION 109 (2000).
176 But note that even the latter are usually considered probabilistic harms, expressed as some odds that one exposed to pollution will develop a disease in response See Lisa Heinzerling,
The Rights of Statistical People, 24 H ARV E NVT ’ L L R EV 189
(2000) (discussing probabilistic harms and cost-benefit analysis)
177 O RRIN K LAPP , O VERLOAD AND B OREDOM , supra note Error: Reference source not found, at 2.
Low-income internet users are significantly impacted by external overloads, particularly in the context of spam Ray Everett-Church highlights that while large corporations can tackle cyberlaw issues, smaller ISPs and their customers bear the brunt of these challenges, akin to the societal effects of pollution Furthermore, mainstream economic theorists like Landes and Posner acknowledge the costs associated with information excess, noting that the demand for a particular work is influenced not only by its availability but also by the presence of competing works This interconnectedness shows that expression is shaped by prior and anticipated expressions, emphasizing the complex dynamics of information consumption.
Skeptics may argue that the various influences in economics are too diverse to be scientifically identified However, as Donald Herzog points out, the criteria used by economists to recognize externalities stem from moral and political theory rather than solely from utility maximization This long-standing practice in economics allows for the consideration of issues like smoking or jackhammer noise as nuisances, while neglecting less impactful matters like colorful clothing or disagreeable manners The concept of "externality" emerged when it became clear that manufacturers were dumping waste into rivers and lakes, allowing one party to benefit at the expense of others.
Spam is a Problem, E -OTI, at http://www.isoc.org/oti/articles/0599/everett.html (last visited Feb.
179 L ANDES AND P OSNER , T HE E CONOMIC S TRUCTURE OF
I NTELLECTUAL P ROPERTY L AW , supra note 18 Posner has also applied a broad understanding of externalities in cultural disputes.
According to the Posner-Becker Blog, dated July 24, 2005, economics examines the outcomes of social actions, emphasizing that both physical and emotional harm have equivalent impacts on an individual's utility, thereby diminishing their overall well-being.
But see Richard Epstein, Externalities Everywhere? Morals and the Police Power, 21 H ARV J L & P UB P OL ’ Y 61 (1997) (warning against overly expansive conception of externalities)
180 Don Herzog, Externalities and Other Parasites, 67 U M ICH
L R EV 895 (2000) (noting that “economists are opportunistic about invoking externalities[: t]hey do so not whenever we find people with preferences about others' preferences and actions; they actually do so in ways closely tracking the traditional harm principle of liberal theory.”) of physical goods either used or despoiled resources that the goods’ producers never paid for
Overcoming Overload
"Second-order" strategies for addressing externalities do not aim to limit copyrightable content but rather focus on incentivizing the creation of metadata through categorization services, evaluators, and indexers to improve information navigation However, catalogers and archivists often face challenges from potential copyright claimants, as some content owners may demand licensing fees for archival copies or for including excerpts in compilations The legal landscape is mixed, with courts sometimes supporting fair use for internet photo archives while being more hesitant in cases involving interactive sites, highlighting the need for judicial recognition of the importance of organizing copyrighted works for a vibrant information market.
While concerns about infinite regress may arise regarding the abundance of metadata providers, metadata is generally less prone to information overload compared to the content it organizes For instance, when comparing movie review platforms like Rotten Tomatoes and the New York Times film review archive, it is simpler to digest Rotten Tomatoes' concise statistical overview of movie reviews—such as the 66% positive rating from 127 reviews for "Legally Blonde"—than to watch the film itself.
Holden critiques *Legally Blonde*, stating that the film "turns gooey when it should be sharp." The movie has received a 66% rating on Rotten Tomatoes, reflecting mixed reviews from critics For more information, you can visit the [New York Times](http://movies2.nytimes.com/gst/movies/movie.html?v_id$6684) and [Rotten Tomatoes](http://www.rottentomatoes.com/m/legally_blonde/).
184 See Michael Madison, A Pattern-Oriented Approach to Fair Use, supra note 73, at 1560 (discussing methods of identifying such patterns, or “social practices”).
Information Overload Externalities utilizing movie clips 185 The resulting legal uncertainty has chilled many valuable categorization projects.
This section proposes two legal approaches for courts to better recognize the significance of categorization services in copyright law Firstly, categorization and indexing should be included among the privileged uses acknowledged in case law, similar to the roles of reviewers and educators, as they help mitigate negative externalities like information overload without adequate compensation The law should support these valuable activities rather than hinder them Secondly, courts should view aggressive litigation against categorizers as copyright misuse, as it attempts to exploit control over copyrighted works to dominate secondary markets improperly Strong fair use and misuse defenses are essential to protect initiatives like the Google Print project and categorizers from undue legal harassment.
While many believe the primary goal of copyright law is to foster creativity, its structure is becoming crucial in today's age of information overload Independent categorizers can significantly help manage the challenges posed by excessive information, provided that copyright law allows them to archive, index, and sample copyrighted materials.
The scope and creativity of categorizers is astonishing. Feel depressed and only want to read good news? Try out
“Mood News,” which arrays headlines in order of “good, bad, and neutral.” 188 Want to read fresh new political theory and perspectives on the academy? Try meta-blog “Political Theory
185 See discussion in Part IV.B below
An overview of how courts interpret various uses under the first factor can be found in William F Patry's "The Fair Use Privilege," which discusses categories such as archiving, preservation, abstracting, and research While categorizing is not explicitly mentioned, it may be considered a natural extension of these practices.
187 4 M ELVILLE B N IMMER & D AVID N IMMER , N IMMER ON
"Daily Review" offers numerous daily recommendations, including guides to help you determine which Beanie Babies are collectible and which can be donated to Goodwill A publisher has created various resources, including picture books, to provide a comprehensive overview of the Beanie Baby market.
The act of categorizing, while it may appear trivial in specific instances, plays a significant role across various platforms Music categorization sites like MySpace Music, Yahoo! Music Engine, and NPR allow users to comment on and rank songs, enhancing user engagement Similarly, Rotten Tomatoes consolidates reviews for nearly all recent films, providing a comprehensive overview for moviegoers, while Blockbuster promotes a curated list of essential films titled “1001 Movies You Must See.”
189 Alfredo Perez, Political Theory Daily Review, at http://politicaltheory.info/, (last visited Feb 2, 2006).
190 See D ENISE I O’N EAL , F OR L OVE OF B EANIE B ABIES 5
(1998) (discussing the thriving beanie baby “secondary market”).
191 MySpace.com, MySpaceMusic, available at http://topartists.myspace.com/index.cfm?fuseaction=music.topBands, (last visited Feb 2, 2006).
192 The N, Music Related Rankings, available at http://www.the- n.com/games/rank/index.php?topic3&vi170&theme=music, (last visited Feb 2, 2006).
193 Yahoo!, Yahoo! Music Engine 1.1 Help, available at http://help.yahoo.com/l/us/yahoo/music/yme/personalization/personal ization-45785.html, (last visited Feb 2, 2006).
194 The Best Music of 2005 Countdown, http://www.npr.org/templates/story/story.php? storyIdP54194&sourceCode=gaw, (last visited Feb 6, 2006);
Amazon.com: Rating Items, http://www.amazon.com/exec/obidos/tg/browse/-/13316081/104- 9725054-4452710#rate, (last visited Feb 6, 2006)
195 Amazon.com: Recommendations Explained, http://www.amazon.com/exec/obidos/tg/browse/-/13316081/ref=br_b x_c_1_6/104-9725054-4452710, (last visited Feb 6, 2006).
196 Rotten Tomatoes, Review Selection, available at:http://www.rottentomatoes.com/pages/faq#gathering
The American Film Institute's Top 100 list highlights the impact of information overload, as platforms like Netflix, IMDb, and YMDB enable users to rate and comment on films, fostering a community of interaction around these ratings Similarly, book retailers such as Amazon.com and Powells.com provide comparable features, allowing readers to share their thoughts and engage with one another's reviews.
The current landscape of categorizing services raises questions about the necessity of legal intervention, as private parties often negotiate deals to enhance content visibility, as predicted by Robert Merges in the 1990s While large corporations like Amazon have effectively partnered with content owners to create comprehensive categorization platforms, the struggles faced by smaller entities highlight the shortcomings of a hands-off approach in this domain.
Consider, for instance, a small “visual search engine” operated by Arriba Soft (now known as Ditto.com) It provides
Arriba's search engine, found at www.ditto.com, allowed users to search for images through small reproductions known as "thumbnails." However, nature photographer Kelly 203 took legal action against Arriba Soft for incorporating his images into its archive without permission.
198 Tomatometer Rating System, available at http://www.rottentomatoes.com/pages/faq#tomatometer, (last visited Feb 6, 2006).
199 Netflix Recommendations, http://www.netflix.com/Recs, (last visited Feb 6, 2006).
200 YMDB: Your Movie Database, Ratings, available at http://www.ymdb.com/faq/index_ukuk.html, (last visited Feb 6, 2006).
201 Robert P Merges, Contracting into Liability Rules:
Intellectual Property Rights and Collective Rights Organizations, 84
C ALIF L R EV 1293, 1296 (1996) (praising collecting societies like ASCAP and BMI as models of private ordering)
202 See Gary Wolf, The Great Library of Amazonia, supra note
Error: Reference source not found, at 86.
203 Kelly v Arriba Soft, 336 F.3d 811 (9th Cir 2003)
Information Overload Externalities search engine had to fight a long legal battle to protect its “fair use” claim to display the small-scale pictures without a license 205
Many categorizers have faced intimidation from content owners, as documented by the Chilling Effects Clearinghouse, which highlights numerous instances of cease and desist letters being issued The significant costs associated with litigation discourage many from pursuing fair use claims As Lawrence Lessig aptly noted, in light of the ambiguous legal landscape, fair use often equates to merely having the financial means to hire a lawyer.
The increasing control content owners exert over derivative works is concerning, as they restrict access to “approved” partners for comprehensive rating and comment sites For instance, Amazon moderates reviews to prevent harsh criticism, promoting a harmonious environment among stakeholders Ty, Inc., the owner of the Beanie Babies trademark, has consistently attempted to silence critiques of its products and business practices Additionally, Google faces numerous legal challenges partly due to its unwillingness to comply with the regulations established by content owners.
Google's potential success in its fair use defense against publishers like the Author’s Guild and Agence France Press could ironically backfire in the long run If these cases set a precedent for license-free sampling, it may lower barriers to entry for competitors in the search market and other categorization services, ultimately increasing competition.
205 See discussion in Part IV.B below.
206 M ARJORIE H EINS AND T RICIA B ECKLES , W ILL F AIR U SE
S URVIVE ? F REE E XPRESSION IN AN A GE OF C OPYRIGHT C ONTROL ,
(2005) 38-45 (discussing several instances where copyrightholders’ legal threats effectively vetoed apparent fair uses).
For an in-depth exploration of this phenomenon related to one specific book, refer to the "Battle of the Bailey Reviewers" at http://www.tsroadmap.com/info/bailey-reviews.html, last accessed in February.
208 See discussion in Part IV.C., below.
209 See Complaint, supra note Error: Reference source not found.
Conclusion
Librarians, archivists, and collectors aspire for a unified data source that encompasses all pertinent materials in a single index The progress in digitization and connectivity now makes it feasible to create this envisioned "celestial jukebox" or a "new Library of Alexandria."
The licensing agreements in this case aim to limit expression by allowing the use of Disney trailers online only on websites that do not harm Disney's reputation or the entertainment industry However, the agreements are not likely to significantly hinder creative expression or negatively impact the broader goal of enhancing public creative activity Importantly, these agreements do not restrict licensees from expressing criticism on other platforms or websites.
Video Pipeline indicates that certain courts may honor copyright holders' requests to establish their own systems for categorizing and distributing samples of their works, potentially barring others from participating in this market In my view, these requests represent a misuse of copyright, as they attempt to extend control over copyrighted materials into unrelated markets that should not be classified as derivative works.
Aggressive Strategy Brought on Inquiry of Recording Industry, N.Y Times, Oct 22, 2001 (discussing antitrust inquiry catalyzed by
The Recording Industry Association of America (RIAA) aims to dominate the online music retail market, raising concerns about potentially anti-competitive practices within the recording industry In their article, "Beyond Napster: Using Antitrust Law to Advance and Enhance Online Music Distribution," Matthew Fagin, Frank Pasquale, and Kimberlee Weatherall explore the implications of these practices on the evolution of online music distribution.