Copyright as Innovation Policy: Google Book Search from a Law and Economics Perspective

The copyright system has long been understood to play a critical role when it comes to the development and distribution of creative work. Copyright serves a second fundamental purpose, however: it encourages the development and distribution of related technologies such as hardware that might be used to duplicate creative work and software that can manipulate it. When it comes to issues of online infringement, then, copyright policy serves two goals, not one: protect the incentives copyright has long served to provide authors and at the same time facilitate the continued emergence of innovative Internet services and equipment. In this chapter, I use the Google Book Search litigation as a lens through which to study copyright law’s efforts to serve these two sometimes‐competing masters. The Google case is an ideal lens for this purpose because both the technology implications and the authorship implications are apparent. With respect to the technology, Google tells us that the only way for it to build its Book Search engine is to have copyright law excuse the infringement that today by design is part of the project. With respect to authorship, copyright owners are resisting that result for fear that the infringement here could significantly erode both author control and author profitability over the long run. I myself am optimistic that copyright law can and will balance these valid concerns. The chapter explains how, discussing not only the formal legal rules but also the economic intuitions behind them.