Standing copyright law on its head? The googlization of everything and the many faces of property
"Google's Print Library Project, which is intended to make the text of numerous books searchable online, has sparked a heated public debate and two copyright infringement lawsuits. A relatively neglected aspect of the controversy is the opt-out option provided by Google to copyright owners. While bracketing the question of whether Google's activities constitute copyright infringement, the paper uses the Google Print Library case in order to examine the role of opt-out arrangements in copyright law in general and in the context of digital libraries in particular. It argues that the choice between opt-in and opt-out is always a context-specific policy determination and that the digital-library context makes a compelling case for an opt-out regime.
The argument is threefold. First, I refute the misconception that property rights or copyright always have a necessary opt-in structure. Drawing on familiar building-blocks of property theory, I elaborate an analytic framework for analyzing the major choices with which copyright law is confronted in specific contexts. Secondly, I apply this analytic framework to the case of digital libraries. I elaborate two sets of reasons that make an opt-out structure preferable for governing the intersection of copyright and digital libraries. From an economic efficiency perspective, considerations of transaction costs and information disclosure point in this direction. Given the typical structure of the market, information asymmetries and the background rules of copyright that structure the bargaining environment, an opt-out regime is likely to minimize the cost generated by digital library projects. From the point of view of cultural democracy, broadly-accessible digital libraries offer a vast new potential. An opt-out structure is a straightforward mechanism for facilitating the flourishing of digital libraries and for realizing their social promise, at a relatively modest cost. Thirdly, I explore the optimal way for implementing an opt-out legal framework in the context of digital libraries. I examine three main options: incorporation under the existing fair use doctrine, a pure statutory safe-haven, and an administratively managed safe-haven"