Networks and Copyrights: A False Analogy

Progress Snapshot
Release 1.21 November 2005

By Richard A. Epstein*

By now everyone knows of Google's announced intention to make digital copies of over 20 million volumes stashed away in four key university libraries. Some authors and copyright holders, bridling over what seems to be an open-and-shut cases of copyright infringement, have brought a class action for damages and an injunction against this practice. They insist, correctly in my view, that Google's new project is not protected by the standard account of fair use.

That said, to this outside observer of the cultural wars this new suit has an odd feature. Google has made it clear that it is willing to respect any decision by authors or their representatives to opt out of the system. The complaint mysteriously makes no reference to this critical feature of the program. But so long as the option is preserved, it seems odd to have the American Association of Publishers act as a class representative for nonmembers. Why didn't it just write Google a polite note that states it wants to opt out on behalf of all of its members until some substantive agreement, with royalties no doubt, is reached. At that point, the short term issue is resolved, leaving it an open question of whether the Google project should be sabotaged with respect to the countless other authors who prefer wider dissemination of their older works to the feeble revenue streams that they currently enjoy.

On that matter, it is a long and complex argument whether Google's opt-out system should be allowed when it works on average for the benefit of the copyright owner and Google alike. In general, opt-outs are disfavored in dealing with subscriptions to new magazines or credit cards, but are common, indeed indispensable, in dealing with renewals of ongoing arrangements in either area. My own compromise proposal is to allow the negative provision for works published 50 or more years ago, where the gains to the authors are likely to be high, and the costs of getting the needed permissions are likely to be great. Otherwise, Google has to get these permissions direct, or through third parties.

In dealing with this problem, however, it best to avoid grand pronouncements of how this copyright dispute shows how modern technology shakes traditional property rights to its roots. Larry Lessig in his recent blog made just that mistake in attacking the authors who oppose the Google initiative as retrograde thinkers who do not understand how property rights evolve in response to new technology. His illustration was how the advent of the airplane forced a change in technology of the upper air space. Thus he wrote:

"This is the best case to illustrate the story I told at the start of Free Culture. Property law since time immemorial had held that your land reached from the ground to the heavens. Then airplanes were invented - a technology oblivious to this ancient law. A couple of farmers sued to enforce their ancient rights - insisting airplanes can't fly over land without their permission. And thus the Supreme Court had to decide whether this ancient law - much older than the law of copyright - should prevail over this new technology.

"The Supreme Court's answer was perfectly clear: Absolutely not. 'Common sense revolts at the idea,' Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place."

As Jim DeLong pointed out ion the IPcentral weblog [1], Lessig's analysis was deeply confused on its facts. The case he claimed to initiate the doctrine, United States v. Causby, [2] was a latecomer to the scene, decided as it was in 1946, long after the basic doctrine had been established in earlier cases. [3]The case was not about whether "a couple of farmers" could block air transportation, but about whether they could maintain their trespass actions for low-flying aircraft that caused serious disruption. In fact, Causby did not go far enough in protecting surface owners because it left landowners defenseless against big-league nuisances caused by aircraft that flew near but not over particular a particular plot of land. [4]Here is an instance of the converse of Lessig's proposition, a case where the traditional rules of nuisance law should be extended to cover these airborne harms to land. Either the airlines that fly the planes should be responsible for all flights under their control, or the same liability is attached to the airport where they take off and land. The interference with the ordinary use of the land is every bit as severe as it in the traditional disputes between neighbors.

Yet it is unwise to quibble too long over Lessig's sloppy presentation of Causby. He is right to join the legion of writers who think that the upper airspace represents a different picture, just as Justice Douglas in Causby is right to note that the unlimited use of the ad coelum doctrine would "clog the highways" for no sensible purpose. But the point here is not that technology just changes property rights in any and all circumstances. Rather, there is a precise set of conditions that have to be satisfied for these regime changes in property rights to make sense. The first point to note is that property rights allow both use by the owner and the blocking of use by others. Where each owner can block what he does not use, we get serious social losses, in this instance the breakdown of air travel. In other cases, as when land is taken for highways, we don't just take the land we need to break the gridlock. We compensate the owners for the loss, measured by its best alternative use apart from the road in question.

Here the value in use of the air rights to places you can't reach from the ground is trivial, relative to the costs of running the system, so we take the rights, save the administrative costs, and know (as well as these things can be known) that the all landowners are better off than before because of the gains that they derive from access to the transportation system or to the goods and services that it provides. This last point is critical because Lessig, in his answer to DeLong, challenges him with this question: "Did anyone receive compensation for the taking? No." But once implicit-in-kind compensation is taken into account, the right answer is yes. All landowners are left better off than before. There is no implicit wealth switch as with the Google project.

The point can be generalized. We make judgments on both holdouts and in-kind compensation all the times, as when we hold that landowners cannot block radio transmissions over their property in the absence, as in Causby , of serious physical injury. But decisions of that sort have been wrongly invoked, most notably in the well known California case of Intel Corp. v. Hamidi, [5] as precedent as in the wholly different situation in which Intel sought an injunction to prevent the unauthorized access of its servers by a former disgruntled employee. Now there is no question of network assembly, and in this instance the older understanding of the exclusive rights to property should have been followed in cyberspace. No network formation, no holdout, no use of state power.

Lessig's plea for Google gains no strength from the analogies to the redefinition of property rights in the upper airspace. Google is not putting together a network. Its library will be valuable even if it is not complete, just like all other libraries that hold hard copies. The whole case here turns on the ease or difficulty of getting permissions from single owners who happen to be difficult to track down. The very fact that he and Google would allow opt outs from their system shows the vast difference in the cases. People can differ on the merits of its proposal, or suggest compromises as I have. But we have to cool down the rhetoric and avoid the Jeremiads. It is just silly for Lessig to say that if Google loses on its novel fair use argument that "Google itself is illegal." This project may have to be reconfigured, and perhaps wisely. But the end of Google is not at hand.

* Richard Epstein is the James Parker Hall Distinguished Service Professor of Law, Faculty Director for Curriculum, and Director, Law and Economics Program at the University of Chicago. He is the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution. He is also a member of the IPcentral Academic Advisory Council. The views expressed here are his own and do not necessarily reflect those of The Progress and Freedom Foundation, its officers or Board of Directors.