It’s Not Infringement if You’re Just an Indexer?

Now the “your information wants to be free for me” crowd is, not surprisingly, lining up on the writers-vs.-Google litigation. The Holy One — no, not him — Lawrence Lessig writes (via Copyfight):

Google wants to index content. Never in the history of copyright law would anyone have thought that you needed permission from a publisher to index a book’s content. Imagine if a library needed consent to create a card catalog. But Google indexes by “copying.” And since 1909, US copyright law has given copyright holders the exclusive right to control copies of their works. “Bingo!” say the content owners.

And is “copying” really so very, very different from, er, copying? I mean, copying?

I once tried to argue that domain names are just indexes, too, and lost that one on trademark grounds. (I still can’t forgive at least one judge on the Third Circuit panel that rubber-stamped that decision whom I thought would care about the Constitution and just sat there like a lox. Okay, actually I guess I can forgive him.)

Well, I used to be a writer for my pay-the-mortgage money. Would I rather that my books and articles could be Google-searchable or not? On the one hand, it would bring me readers whom I would likely never otherwise have. On the other hand, it seems fairly unlikely — depending on what exactly Google gives you — that these “readers” will buy my book or my article merely because they got a “hit” on a search term. Which makes me think that something strange is going on here in this yet-another-installment of the Battle For Rent.

We’ve discussed before how monopoly sellers — such as owners of unique creative works — crave perfect price discrimination. The Internet, with its atomic, individualized transactions, and the wealth of data it can provide about buyers, can (and in Google’s case, increasingly does) move buyers closer to it. On the other hand, consumers get the advantage of being able to undermine the monopoly seller’s drive to maximize total revenue, even at the cost of perfect discrimination on the sale of a particular increment of the commodity in question. The best example of that is — or was — the way the record companies made you buy a complete album of mostly mediocre music in order to get the one or two songs you really want. Now you can, illegally or legally, usually buy exactly the tune you want.

Same thing with books, right?

Well, no. Let’s put aside the so-called concept album; as a general rule, or certainly from most consumers’ point of view, an album is at best the sum of its parts, and frequently less.

But a book is not the sum of its words, or even its chapters. (Not counting anthologies, another analogy-killer but not the typical book.) A book is an entire work. It may be indexed, as every book is, by title, author, subject, etc. Is breaking a book into thousands, or millions, of searchable words and phrases the same as what they do at the Library of Congress?

Only if you think that a million monkeys with a million typewriters would eventually come up with Shakespeare’s Sonnets. Or is it a google monkeys? More or less the same to me; no one’s buying that story any more, anyhow. I don’t call uploading entire creative works and “merely” making them searchable “indexing.” And neither does Congress. And yes, that does matter.