Larry Lessig posted this week a synchronized set of slides and audio addressing Google Book Search as fair use. The talk runs for 30 minutes but ultimately the core point is simple and I think relatively conventional: transactions costs matter for the scope of allowed fair use. The suggestion here is a transaction-cost based opt-out model: for low-cost of consent holders, GBS has to ask permission, but for high-cost of consent holders, GBS need not ask permission, but instead those holders have to opt out.
Larry splits the universe of books for Google book Search into three categories: books in the public domain, thought to be roughly 16% of the relevant works; copyrighted works not in print (75%); and copyrighted works in print, the remaining 9%. Google need not get consent for public domain works (though, as I suggested in my last post on this, Google seems to be taking a conservative approach on public domain works (and also perhaps an economic one as Saul Levmore suggested in a comment on that post)).
Google seems to be working with copyright holders on the works in print, and Larry doesn’t really address whether fair use might allow Google to do more than it is currently doing with those works, even without the consent of the copyright holders. As Larry notes correctly, fair use is not based on consent; fair use instead is based on a bundle-of-sticks model of property rights. We give some of the property right sticks to the copyright holder and other sticks to the public. The public gets to pick up its sticks without asking permission from the copyright holder. That said, fair use is notoriously hard to pin down, so Google might prefer to get the consent of copyright holders to use their works. License rather than litigate.
But it is the intermediate category where matters gets sticky and fair use needs to do its work. Needs to do so because Google does not have unfettered access, as it does for public domain works, and cannot negotiate for access straightforwardly as it can with many copyrighted works. There is where fair use comes in.
One fair use tradition is highly economic and focuses on the transaction costs of fair use. If negotiating for use is very difficult—if the transaction costs of consent are high—we can’t rely on voluntary licensing to facilitate use. We need to assign use, either facilitating use as a fair use or limiting use. Given the costs of asking permission, the use won’t happen if we assign control over the use to the copyright holder.
An assignment of a use right to GBS need not last forever. Transaction costs can change, and authors and publishers can take steps to lower the transaction costs of consent and limit fair use by GBS (and others who might want to build these databases). Notification by an author or publisher with regard to a particular work would change the transaction costs sufficiently so that use that started out as fair might cease to be so after notification. This tracks the notice-and-takedown procedure we see in section 512 of the copyright law for Internet service providers and also matches the approach taken to filtering in the Napster case, where the copyright holders ultimately provided lists to Napster for filtering.
Should this mean that GBS should be able to use all works at least until GBS receives a notice from the copyright holder? I don’t think so. GBS need not get consent for public domain works; should, at least in a transactions-cost framework, get consent for low-cost of consent works; and should be engaging in fair use for high-transaction cost consent works. Once GBS has received a notification from a copyright holder of a high-transaction cost work, the costs of consent have dropped, and the fair-use right should end with it. If the number of book search sites proliferate, that will increase the burden on authors, though the technology will matter here too, as the Author’s Guild could jump in and provide a book-search site search engine for their members to reduce the cost of opting out from multiple sites.
How should Google present these intermediate works? It is currently giving the least amount of access to these works: not the full access it gives to public domain works or even the multiple-page access it is giving for the negotiated copyrighted works. Instead, Google is currently presenting these works in its snippet view. Instead, GBS should track the deals that it has struck with copyright holders. On the transaction costs view, we should implement the deal that would be struck hypothetically if the costs of consent didn’t prevent that deal from happening. And that would mean that if most of the low t-cost copyright holders are exiting the program, we should probably exclude these high t-cost works as well, but I doubt that we are seeing much full exit from GBS.
Do note also that this might be seen by many as a very narrow approach to fair use. We might think that a lot more is at stake than just the transaction costs of consent, but even in that framework, we should be able to move GBS forward very aggressively.