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While the Nobel Prize for Economics is a significant recognition, the Royal Swedish Academy of Sciences does not determine who is qualified to serve on the Board of Governors of the Federal Reserve System.
—Richard Shelby, (R-AL)
The Nobel Prize for economics was recently announced. It went to three economists who provided the theoretical foundation for understanding search markets. Each had found themselves fascinated by the difficulty that buyers and suppliers sometimes have in finding one another. Together, they found that search markets belie commonly held beliefs of classical economics. They have search costs. They’re often inefficient. They provide multiple outcomes. They’re messy.
Messy markets dumbfound classical economics. Markets are supposed to provide unique and efficient outcomes. Search markets don’t, but they don’t resist analysis. The recipients, Peter Diamond, Dale Mortenson, and Christopher Pissarides, demonstrated this with the DMP model for unemployment. But the model also demonstrates the importance of regulation and policy to affect market structure and improve outcomes. This is far from a laissez-faire point of view so commonly held. Though the recipients focused their efforts on the labor markets, the common features they identified in search markets provide a metaphor for understanding other conventional economic markets and, perhaps, non-traditional markets: the process of finding a spouse or even the marketplace for ideas – a concept still reeling from the controversial Supreme Court opinion on Citizens United v FEC.
Diamond, Mortenson and Pissarides, articulated a handful of common traits associated with search markets. Search markets are typically associated with non-exchange-based transactions, such as labor markets. Unlike on an exchange, it’s typically difficult to find the right buyers or sellers, so search and matching costs, for example, are associated with high real costs. Movement in the labor market, for example, requires individuals to quit or be fired, search for a job and be evaluated, and question accepting a position on the basis of the difficulty of and compensation for the work.
Search markets are also inefficient and may include several outcomes. Though only one outcome can be the best, these markets do not yield unique and efficient outcomes associated with classical economics. Instead, they can lead to imbalances, such as resource utilization, which can skew either too high or too low.
The activity within a search market also affects the search market. When a job-seeker, for example, increases their search activity, the overall market becomes more challenging for other job-seekers and easier for recruiting firms. These are called external effects and are not taken into consideration among market participants. It yielded a relationship between job creation and the intensity of workers seeking jobs. If workers increase the intensity with which they look for jobs, the marginal improvement in a company’s ability to fill a position will encourage employers to open searches for more jobs. It also explains why job openings have increased recently, but the unemployment rate has not changed substantially. These may be attributed to structural issues within the labor market, such as uncertainty about regulation and taxes, a reduced ability to sell one’s house and move to where the jobs are, among other reasons. Perhaps we might also see option-taking by employers. For example, many people are looking for work with intensity, firms can easily fill positions. With low search costs, posting additional vacancies allows them an inexpensive option to hire, should they find someone.
Diamond, Mortenson, and Pissarides, initially working independently, soon found one another in perhaps an example of their own theory of search markets. The realization of one another’s interests galvanized their efforts, and they organized the Diamond-Mortenson-Pissarides (DMP) model to explain the Beveridge Curve. The Beveridge Curve denotes an empirical pattern of high unemployment and low vacancies or low unemployment and high vacancies. The DMP model broke new ground by providing an explanation for the relationship between the underlying economy, various regulations, and the position on the curve.
Rigidities in the labor market can contribute to unemployment. Participants seek to optimize both compensation and the quality of the work required. One’s inclination to compromise before finding the optimal combination might be determined by jobless benefits, the performance of one’s portfolio, or the condition of the overall economy. Similarly, employers might delay listing vacancies or hiring in general if they find it more difficult to fire employees when they feel necessary. India, for example, maintains a rule pertaining to industrial establishments of 100 workers or more. Rather than require the customary one-month notice on termination, industrial establishments require a three month written notice to employees and prior authorization from the appropriate government authority.
The DMP model, however, does not deny the benefits of regulation. Indeed, some regulations may introduce rigidities that impede the market, but properly applied, they may improve the functioning of the market. Though higher unemployment benefits predictably lead to higher unemployment and a higher search time for the unemployed, the DMP model suggests that it nonetheless has its place. Some job searches are complicated by the rarity of an individual’s skills. Without unemployment benefits, they might not have the time to conduct a thorough search. Circumstances will require that they take a position that does not capitalize on their abilities, and the mismatch between an individual and their job will result in a net loss in welfare for the economy overall. If a skilled machinist has to stock shelves at Walmart, the economy does not benefit from the investment required to cultivate those skills in the first place and may pay a price in a company’s inability to fill a vacancy. Without a proper match, the economy will function below its capacity.
Though the recipients’ work centered on the labor markets, search markets have also been applied to many areas where buyers and sellers find it difficult or expensive to find one another. Among them, the process of finding a suitable spouse, identifying and negotiating with strategic suppliers, used car shopping, and perhaps expert networks. Some of these have been explored, others may benefit from analysis through the lens of a search market. Expert networks, a relatively new phenomenon, connect those in need of expertise with those who have expertise through a costly and fitful process of collecting, profiling and delivering independent consultants, former executives, former government officials, and others for paid phone consultations and other engagements.
The metaphor of the market has even been used to understand the freedom of speech guaranteed by the Constitution. Viewing the marketplace of ideas as a search market might be just the metaphor Stevens was looking for when he dissented to the Supreme Court’s decision in Citizens United vs. FEC earlier this year. Indeed, it’s an elaboration of Professor George Stigler’s precursor to search markets discussed the search costs associated with information in his 1961 paper, The Economics of Information. Perhaps it was what Stevens had been struggling with when he wrote:
All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, “that there is no such thing as too much speech,”
The marketplace of ideas is a search market. It’s messy. It yields multiple and inefficient outcomes. The Nobel Committee’s reward of Diamond, Mortenson, and Pissarides’ work on Monday helped us understand that better and laid bare the insufficiency of the laissez-faire perspective so often taken.
Knowledge, instead of being bound up in books and kept in libraries and retirements, is thus obtruded upon the publick
—Spectator no. 507 on the Spectator, 1711
One imagines the libraries and retirements encircling prized volumes. Access is limited. The doors are closed on hushed, dark rooms, and rude custodians may or may not respond to the knocks of visitors. The lively entertainments of the mind, pressed flat and laid up in shelves, are collected — excluded from the general population. Mr. Spectator lights up these entertainments, unbinds them from their pages, and sends them around the room and into society. He obtrudes them upon the public.
The pseudonymous Mr. Spectator offers a voice that would direct many of the discussions of the day, through education and entertainment, in 18th Century London. His daily issue, launched and written by Joseph Addison and Richard Steele 1711, would be called The Spectator.
Addison & Steele’s Spectator boasted a distribution of 3000, through hawkers and mercuries, and a readership upwards of 40,000: “every page submitted to the Tast of forty or fifty thousand Readers” [No.508]. But the finances were unclear and, at best, shaky. The paper, which paused mid-stream for a substantial hiatus, only lasted just over six hundred issues.
The optimism is palpable, but the rewards were not. The nascent newspaper was more likely to lose money than make anyone rich. More often than not, publishers struggled to make the business work while slowly draining their investors. The Spectator was among an exceptional few to survive the tax increase of the Stamp Act. Their story, however, is surprisingly similar to what we see in today’s shift to digital media.
What Addison & Steele and others discovered was mass media, a new media in its own right. Then as now, their efforts derived from changes in regulation and technology and competed with the traditional forum for news – the pulpit then, and newspapers today, for example. The competition among dailies divided the public into publics, each driven by the tastes and temperaments of its readers. These early dailies changed the public’s relationship to knowledge and brought it out of libraries and retirements in the same way that today’s new media brings news out of the newspapers, for example, and generally enlarges the free-marketplace of ideas.
Addison & Steele’s budding media empire flourished when placed in the hands of the audience. Today’s newspapers and magazines would have you believe the same, but it’s distinguished in one key way. It has built up a dependence on paid circulation. This was less important than one might think for those early publications. Instead, they relied on reputation and influence at first, followed by advertising. Paid circulation was, in effect, a manner of subsidizing distribution.
Mass media’s origins in 18th century newspapers began with two developments. The speed of the printing press introduced the possibility of the daily — something unthinkable in the age of scriptoriums. The status of the written word would shift from scarcity to abundance. The dearness of a volume, which had been measured by the many hours and men required to copy it, was rapidly sliding toward the price of the paper on which it was printed. Second, with the lapse of the Licensing Act in 1695, prepublication censorship ceased. Print would emerge everywhere and could include anything. Many would publish not only the inventions of the moment, they would uncover and disseminate the knowledge from those libraries and retirements — all for not much more than the price of the paper itself.
Early newspapers would supplant the pulpit and occupy an advanced position on both book publishing and the congregation. The pulpit provided the equivalent of a weekly news show. Congregations received the news once a week in a format and fashion that was faster and easier to consume than books. As Elizabeth Eisenstein observes in The Printing Press as an Agent of Change, “before the advent of printing, events of significance, when reported at all, were usually conveyed from the pulpit” [p. 553]. The sermon might address world events, local trade, real estate transactions, and politics. The newspaper, however, would insert itself in the daily routine of many: “the pulpit was ultimately displaced by the periodical press” [p. 131].
If changes in regulation and technology leading up to the 18th century fostered the sudden supply of publications, what drove the need? The demand for publications such as the Tatler, the Spectator, the Craftsman, the London Daily Post emerged as a genie from a bottle. The public wanted newspapers. They wanted something different than the weekly lessons and announcements from the pulpit. Eisenstein remarks, “the dictum ‘nothing sacred’ came to characterize the journalist’s career” [p. 131]: it wasn’t the church. Instead, among the teeming dailies, one could choose the the right one for one’s self. Dailies didn’t just discover an interested public, they discovered interested publics, each with their own tastes and preferences.
Addison & Steele’s ambition to serve a reading public changes society’s relationship to knowledge. Knowledge would no longer be exclusive. Obtruded upon the publick, it would reach into new corners of society to be consumed, critiqued, and engaged. Addison & Steele’s Mr. Spectator would write in Spectator no. 10, “I have brought philosophy out of closets and libraries, schools and colleges, to dwell in clubs and assemblies, at tea-tables and in coffee-houses.” The Spectator would be one of many vehicles for this change, and distribution would drive it to thousands in 18th century London.
The Spectator would mine the libraries, his competitors, and the conversations at the coffee-houses for the facts and ideas behind each missive. The collected ore would only be valuable inasmuch as it would capture the attention of his readers. With the diversity and detail of the web, today’s contributors mine newspapers, magazines, books, official announcements, and just about anything they can get their hands on. One might characterize these as transactions in the free marketplace of ideas, but then as now, they sparked controversy. Just as the pulpit may have been upset with the rise of the newspaper, traditional media finds itself frustrated by the thousand-fold rehashing and reinvention of the facts and ideas that had once seemingly been their province alone.
The public begins as the recipient of the shifting relationship to knowledge, but they also become the object. The Spectator, for example, took the public as a specimen under its lens. Mr. Spectator is among them, observing them, surveying them, and refracting everything back through its daily issue. Jurgen Habermas would later claim, in The Structural Transformation of the Public Sphere, “in the Tatler, the Spectator, and the Guardian the public held up a mirror to itself.” The public could see itself through these early papers and have a “conversation with itself.”
Today’s changes in technology and a mindset rooted in net-neutrality and open systems have yielded similar innovations. The internet, blogs, and increasingly creative media ventures that have become substitutes and complements to traditional media. Both moments yielded an efflorescence of expression that was fertilized by rapidly diminished costs and threatened to supplant existing institutions: the congregation and traditional media. And both moments relied on the ability to rehash and reinvent the accumulated knowledge of their time to fill their pages, virtual or otherwise. The resulting fragmentation of readers would replay many of the changes ushered in with the the early 18th century dailies.
Could these early publishers charge for this? Barely. What would matter for Addison & Steele and their counterparts today was the audience, and their success would not be measured in how much people paid for the content, but in the reputation they developed and the ability to advance the interests of the proprietor and their investors.
The Spectator built Addison’s reputation. He wasn’t concerned that his readership far exceeded the paid circulation by more than ten-fold: the more, the better. His reputation among them would provide other opportunities. The Spectator, after all, was his second publication. It followed the Tatler, and it was his reputation that enabled him to do both. Later, he would harvest these efforts through the sale of bound volumes of each.
We see something similar with blogs such as Joel on Software, which was later published as a series of books. Combined, the blog and books undergird his company’s credibility as a leading software developer, which has led to ventures such as Stack Overflow. Meanwhile, Brad Setser’s consistently trenchant, though not always well edited, observations on currency flows from the Council on Foreign Relations ultimately led him to a position in the White House, and Julie Powell’s musings on Julia Child morphed into a book deal, a movie, personal complications, followed by another book deal.
Investors in early newspapers sought influence and profits through circulation. More often than not, they may have found influence, but not the profits. The paper, however, was well-suited to advancing their individual interests. They may have been merchants or theater owners, so they would use their position to obtain better advertising rates, coverage or otherwise. Michael Harris, in London Newspapers in the Age of Walpole, remarks: “the efficacy of the papers as vehicles for house advertisements could more than offset a limited return.” In these cases, the newspaper is an agent for the partners’ agenda: providing owners a venue to advertise their establishments.
Fred Wilson’s blog has slowly impressed him upon the New York venture community in a way that uniquely positions his venture capital firm among investors and entrepreneurs. Michael Arrington’s thriving conference business owes its origin to Techcrunch. Barry Ritholtz has leveraged The Big Picture to cultivate an asset management business. The reputations in each of these examples drive a venture-investment business, a conference business, and an asset management firm.
Addison & Steele’s were early days in the newspaper business. They and others managed to advance the reputation and interests of themselves and their investors. Soon, however, they would make a dramatic realization. If they could do it for themselves, they could certainly do it for others, and they would have a third leg on which to stand. Doing so would require a dramatic leap: they would have to sell the audience. They would invent advertising as we know it.
Advertising started as the province of the proprietor and his investors. Advertisements were a privilege bundled with ownership – house advertisements. We see advertisements for booksellers, who may have been investors or close associates. But this would change. Just as blogs have been festooned with advertisements, early newspapers would realize that the audience might also be valuable beyond the proprietor and his investors.
The first advertisements in the Spectator were almost an afterthought. They showcased books that their printer, Sam Buckley, or his friends had printed. In Lawrence Lewis’sThe Advertisements of the Spectator, he observes, “As the circulation of the ‘Spectator’ increased among ‘the quality,’ the example of the booksellers was followed, first by the mercers and haberdashers, then by the dealers in snuffs and wines and teas, by quacks and sellers of cosmetics and nostrums for every human ill, and, finally, by the managers of places of amusement.”
Advertisers began to include not just partners, but interested parties. Advertisements for soap or perfume joined those of the booksellers. Harris observes, “by the mid-1720s the amount of space devoted to this material was provoking some vigorous criticism.” By the mid-1720’s, early newspapers had meaningfully unbundled the privilege of advertising from ownership. For the first time, anyone who wanted an audience could access one. The audience became a service to be delivered:the newspaper, a the service provider.
Early newspapers, like new media, flourish when they’re in the hands of an audience. They flourish when they enhance the reputation and influence of their proprietors and, through advertising, others — not because they’ve been charged for it, but because of the externalities that develop from an engaged, reading public. If that’s the case, should The Spectator have become a free publication and follow today’s flat dictum that information wants to be free?
Addison & Steele never conceived of giving the Spectator away, but it’s worth wondering if they would today. They were thrilled to claim a total readership of more than ten times the paying readers, but would they give those paying readers up? Probably not. Addison & Steele’s circulation pattern provides an early example of versioning in information goods. Hal Varian explains versioning as a pricing method for information goods that sorts potential customers based on the quality of the good that they need. In Addison’s case, those who absolutely needed The Spectator would buy it on its first run. Those who could wait would pick up copies from friends or a table at Button’s coffee-house.
Versioning, however, works differently today. The internet has no equivalent to picking up a newspaper from the table at Button’s or the floor of the subway. If there is, it’s in the form of passed links, aggregators, and comments and analysis that show up on blogs. But unlike with The Spectator, or even a paper copy of The New York Times, the chain generally does not begin with an initial sale. The first version is either free or behind a pay-wall: either available or not. It isn’t sold and read, only to be left on the coffee-house table. And if it’s behind a pay-wall, barring any individual indiscretions with copyright, there is no second version for someone to pick up. By analogy, it would mean Addison’s reliance on a readership of 3000, not 40,000. What would that do to his ability to monetize his following? It certainly would have impacted his influence.
The consternation about pay-walls that has captured the current imagination is fundamentally a question about versioning. The New York Times and Newsday and others are looking for the digital equivalent to the table at Button’s coffee-house. What model will allow them to sell a first-version? The physical paper provided a solution, but the shift to digital does not invoke an obvious replacement. And a pay-wall risks severely limiting their audience and influence.
Many online media ventures have avoided the issue entirely by offering one version, free of charge, to their audience. Passed links, blog-mentions, aggregators and others provide the digital equivalent of shared and found newspapers – the digital coffeehouse. Their influence can grow with the appeal and availability of their perspective. Considering half of the Spectator‘s circulation revenue went to the Stamp Tax, after the cost of printing and paper, there was very little left over for the owners, so there would be very little difference between being a free publication on the internet and a paid publication in print. An online Spectator would probably be a free Spectator: today’s raft of free blogs and new media ventures, its inheritors.
The Spectator and early newspapers would evolve into the inky reams that we know today, but it turns out that they may be a closer cousin to today’s emerging media landscape. Both moments fostered marginal businesses that owed their origin to dramatic changes in technology and a change in regulation, in the case of the Licensing Act, and a mind-set, in the case of net-neutrality and open systems that dominates the web. Neither looked like any newspaper that we would recognize in the 20th century, but they would go on to change society’s relationship to knowledge and disrupt traditional sources of information, from the pulpit then to institutions such as modern newspapers now. Their economic success for lay in the ability to derive externalities from their audience in the form of reputation and, later, advertising.
A bright line, however, still separates our modern print publications and the inheritors of The Spectator: the ability to version. The ability to version on the internet has proved difficult to incorporate and become a painful reminder of the many differences between print and the digital medium. What is the digital equivalent to the 18th century coffeehouse? Encouragingly, the New York Times recently answered with the announcement of its paywall strategy. If it’s passed to you, by twitter or a friend, please read it; otherwise, pay. You’re either a patron or a coffeehouse. Perhaps invoking the spirit of Addison and Steele will reinvigorate their prospects.
Intellectual Ventures wants to define itself before someone else does. It’s been called a troll, a renegade, just another stop on shakedown street. Now, however, Nathan Myhrvold has launched a round of publicity that includes batteries from the New York Times (blog & article) and a single shot from the Harvard Business Review. Myrhvold would have his readers believe that we are standing on the edge of a capital market for invention that will unleash and remunerate the full creative power of our economy, and Intelligent Ventures is just the firm to launch it.
Sometimes, however, a troll is just a troll. But Myhrvold is right. He’s not just a troll. Myhrvold’s ambition is greater than that. He’s planning an intellectual property cartel, and policy makers would be well-advised to monitor his project.
Myhrvold had the good fortune to work closely with Steve Lohr of the New York Times to publicize his manifesto in the HBR and share his vision. Lohr provides a patient and adulating witness to the quirky polymath. With an enterprise so shrouded in secrecy, Lohr understands that Myhrvold won’t just speak with anyone and chooses to reserve judgment and ingratiate himself with him: “white hat or black hat, Intellectual Ventures is growing rapidly and becoming a major force in the marketplace.” Lohr goes further, however, and instills the underdog spirit in Myhrvold, who exclaims, “We have to be successful,” following which Lohr warns us that the “issues surrounding Intellectual Ventures, viewed broadly, are the ground rules and incentives for innovation.” Josh Lerner, an HBS economist and patent expert, speaks up in the next sentence and says, “how this plays out will be crucial to the American economy.” Could Myrhvold’s success possibly be tied to answering crucial questions about the ground rules and incentives for innovation in the American economy? Lohr’s thoughtful organization might have you think so, and Lerner’s quote would seemingly substantiate it.
Maybe Lohr was uncomfortable with the persona he had attributed to Myhrvold, for he would couple his article with an early-morning blog post on Bits. While his print subscribers drank deeply of his David & Goliath – styled allegory on patent-law, he quietly published a clarification of the patent litigation dilemma. Lohr frames the next phase of IV in terms of solving the free-rider problem. The label is interesting for two reasons. First, it implicitly says what it is not. For example, it is not greenmail, as Jim Huston, a former licensing and patent executive at Intel, suggested in a 2006 Business Week interview: “If you don’t invest, you’re our No. 1 target.” Second, it suggests that there must be a simple solution to an unacceptable practice. Afterall, we’ve all heard about free-riders.
Intellectual Venture’s limited partners invested to protect themselves from trolls. If Intellectual Ventures can buy up loose patents, then the LPs have a quasi-insurance policy against trolls, who could just as easily, though more threateningly, buy those patents. Myrhvold initially called it a defense fund, almost a patent pool. More money means more insurance, but there’s a quirk. It may require litigation to work.
Though litigation may make Intellectual Ventures look like a troll, be assured, it’s not. Myhrvold claims to have only a reluctant interest in litigation. “It’s a stupid and inefficient way to resolve disputes, but in a polarized world, there will be litigation,” claims Myhrvold. It’s necessary, however, to solve the free rider problem. Some people have paid into the defense fund, others haven’t. IV’s hands are tied. They have to sue, so they can protect the interests of their initial investors. It’s their fiduciary duty.
The solution: bring new members into the Intellectual Ventures project. Litigation, or the threat of litigation, Myhrvold believes, will encourage others to join. As they join, he can manage the free rider problem and assure appropriate and legal access to the trove of intellectual property already collected, thus demonstrating the value of their initial investors’ decision to work with them, while creating a market for invention capital – a market for eureka. “Our licensing task is to go from dozens of companies to thousands,” says Myhrvold.
Myhrvold’s vision would solve the free-rider problem, but it does not mean Intellectual Ventures is not a troll. Lohr mistakenly considers the free-rider problem in isolation. Intellectual Ventures does not have a free-rider problem in the vein of a public good. It’s not the case of a shipping association that has financed and constructed a lighthouse for their benefit, but may inadvertently serve that of the brigands, castaways and competitors who happen along. Lohr’s free-rider problem exists only because Intellectual Ventures has organized a Non-Practicing Entity to collect intellectual property with the intention of monetizing it for their limited partners. The free-rider problem in this case is that which is exploited by a troll.
It wouldn’t be wrong to just say troll, but Intellectual Ventures seems to be more than that. Myhrvold’s proposal would create a troll quite unlike anything that we have seen before – a troll with a cartel-twist: an intellectual property cartel. With “thousands of members” Myrhvold would have an agreement among competing firms to coordinate prices on a vast holding of intellectual property to the disadvantage of non-members. Patents are monopolies, so non-members will have no substitutes. Its alarming size would give it substantial reach in the intellectual property market and engender a network-effect, which would cultivate market power and make membership more valuable on a per-patent-basis as it grows. The problem with this isn’t the idea of patents. The problem is the power that an intellectual property cartel would have.
Intellectual Ventures would increasingly intersect with the interests and inventions of others. When it would, it would find itself better capitalized and equipped to pursue a claim. With growing resources, Intellectual Ventures would be able to take more risks with litigation, actual or threatened. A claim, for example, may be weak, but their credible ability to marshal legal action may force concessions and settlements where none may be merited. Because of the network-effect and the lack of substitutes, settlements and membership will become more costly on a per-patent basis. Moreover, with imperfect information on the scope and character of Intellectual Ventures’ holdings, it may only take a well-phrased bluff to induce a target into membership.
What happens in this model? What is the consequence of an intellectual property cartel? It raises the price of innovation. It puts smaller firms at a disadvantage. And it places us in a world where Non-Practicing Entities can lay in wait, as a hunter in a blind, lash out without warning and stifle the work of companies that may actually be organized to accomplish something, such as provide goods or services, with their efforts. Patents aren’t bad, but these outcomes are.
—part of the quotestream around IV—
If I appear to be a total milquetoast and I say I’ll never [sue], then people will rip me off totally…I say, ‘I can’t afford to sue you on all of these, and you can’t afford to defend on all these.’
—Nathan Myhrvold: WSJ 2008
You have a set of people who are used to getting something for free, and they are some of the wealthiest companies on earth. I was there. I was in the meetings. This is they way this business thinks about it.
Today invention is an area that people view as too illiquid, too uncertain, and too risky, so that nobody wants to invest in it. The world has shown that if you provide capital and expertise to an area that is starved for capital and expertise.
—Nathan Myhrvold, on corporate respect for patents, BW 2006. Izhar Armony, a partner at Charles River Ventures, would say, “I think that Nathan is on to something really good and important. We share a common vision of thinking of [intellectual property] as an emerging asset class.”
The appeal is twofold: the opportunity to interact with a diverse group of thinkers purely for the sake of invention, and the efficiency with which IV translates imagination into intellectual capital.
—Dennis Rivet, on working at Nathan Myhrvold’s Intellectual Ventures, which started as aPatent Defense Fund against trolls: BW 2006.
Bruce Sanford and Bruce Brown commented in the WSJ on “Google and the Copyright Wars” (11/12). Many are focused on the status of orphan works in the Google Books project, but Sanford and Brown argue that the idea of fair use and its application by search engines is the controversy’s center, not orphan works. Sanford and Brown would say that a search engine’s use of the web’s content is definite and definitely unfair.
Fair use of a book’s content, a website, or even the news underpins a search engine’s ability to find and deliver websites to users of the internet. Sanford and Brown stake out a position for search engines that is similar to a public library. Just as a library can employ the contents of its archive to establish an index for its patrons, the search engine uses the contents of the internet to establish an index for anyone at all. Sanford and Brown, however, contend that search engines are not libraries, so fair use does not apply.
Sanford and Brown argue that two distinctions separate search engines from the library model. Search engines not only copy text, they reproduce it in their results as snippets. Rights of reproduction are protected for copyright holders. Second, search engines sell advertising, and the sale of advertising is contingent on their ability to copy, store and reproduce copyrighted material. These distinctions, argue Sanford and Brown, disqualify search engines from the safe harbor of any exemption made for libraries. Their remedy: legislation.
The problem is, search engines don’t find safe harbor in the library model, and legislation is not the answer. Yes, a library applies fair use in its practices, and search engines have been compared to them in the past, but not all applications of fair use are found in the confines a library. This may be why they are so quick to demand legislation to expand copyright, even though expanding copyright may drive more business to the lawyers who protect it than the websites involved.
The Ninth Circuit court framed a four factor test for fair use in the case of Perfect 10 v. Google, et al in May 2007. The test would distinguish between copyright infringement and fair use in the case of Google’s use of Perfect 10 material in its search results. The four factors comprise: the purpose and character of the use; the nature of the work, ie fact-based or creative; the amount of the work used; and the effect on the market for the work. None of them invoke the metaphor of the library used by Sanford and Brown.
When Google displayed the Perfect 10 images, the Circuit determined that all four factors weigh in its favor. The images may have been highly original, but the results incorporate “an original work into a new work, namely an electronic reference tool,” and this is highly transformative: “a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.” Though Google would use a degraded thumbnail version of the image, its “use of the entire photographic image [is] reasonable in light of the purpose of a search engine.” The Ninth Circuit, therefore, reasoned that Google’s use of Perfect 10 thumbnails would be considered fair use. Though it didn’t provide a decision, it did suffice to vacate Perfect 10’s preliminary injunction against Google.
Sanford and Brown mistake the metaphor of a library as the only example of fair use when alternatives, such as the Ninth Circuit’s opinion, are perfectly acceptable. Perhaps this is why, having fleshed out their metaphor, they seize on legislation as a solution. Indeed, they would have Congress assert, “once the cache is monetized for the benefit of a search engine, the line of copyright infringement is crossed.” Isn’t this a sort of Hail Mary pass to rights-holders?
Legislation could make it illegal to monetize a cache without permission, but it’s not the panacea that Sanford and Brown are driving at. If the legislation mandated payments for rights-holders, it would, but this is probably not a suggestion that would be found in the pages of the Wall Street Journal. More likely, it would not, and it would leave websites in the position of the prisoner’s dilemma. If everyone cooperates and insists on payment, it will be to their mutual advantage, but the search engines direct so much traffic that each website has an incentive to break ranks; hence, everyone reluctantly opts in for fear that they’ll be the lone hold-out. In effect, it’s as though the legislation never happened, with one important distinction: there’s a new law on the books that requires a few good lawyers to understand. Perhaps that’s what’s really driving Sanford and Brown’s comment.
There is an exception, however. Not all players are equal in this game. Some may wager that holding-out is viable regardless of legislation or whether others do. That’s exactly what News Corp has done. They have begun negotiating a possible payment from Microsoft for the exclusive right to index their content. Though derided by many on the internet, should they find an agreement, their example will prove an important experiment in the question of paying for content.
Stilltitled 