Three Cheers for Categorizers!

gursky.jpg

Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…


First, independent categorizers are a very important source of knowledge. Could you really trust a site effectively controlled by the owners of the content it reviews? Sadly, if big content owners get their way, that will be the default rule for “full-service” categorizing sites that offer clips or samples….as Video Pipeline learned to its chagrin in 2003.

Second, there should be a diversity of categorizers. Google may actually be hurt in the long run if it manages to succeed in its fair use defense against publishers and Perfect 10. To the extent that these cases establish a precedent of license-free sampling, they permit lower-cost entry for competitors in the search market—as well as for categorizers generally. In a world in which categorizers need licenses for all the content they sample, only the most established entities will be able to get the permissions necessary to run a categorizing site. Fair use for snippets of books, thumbnails of images, and samples of audiovisual and musical works levels the playing field.

Let’s wish Google the best in its fight to effectively organize knowledge. We need a new access principle to overcome the Babel of fragmented information. Google—and the bevy of innovative categorizers that could follow in its wake—need all the legal help they can get here.

PS: The pic is Andreas Gursky’s 99 Cent II. Thanks to the Tate Modern and Google Image Search for the categorization that made this find possible!

PPS: Three more cheers to John Willinsky for making his compelling case for open access downloadable here.

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