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Abstract:
Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.

After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may constrain abusive companies to some extent, they have little chance of checking untoward behavior by the oligopolists who now dominate the search market. Against the trend of courts that would declare search results unregulable speech, this article makes a case for an ongoing conversation on search engine regulation.

Google, search engine, privacy, defamation, internet, public utility

Abstract:
This paper reexamines the historical narrative of copyright law and the ideology of authorship. This strand of copyright scholarship that emerged in the 1990s highlighted the ways in which the development of modern copyright law was bundled with the rise of a new ideology of authorship as an individual act of original creation ex nihilo. Despite its important insights, the historical narrative of authorship suffers from two deficiencies. First, with a few important exceptions, scholarship in this vein tends to focus on seventeenth and particularly eighteenth century England. Intended or not, this periodization conveys the impression that the story of original authorship and copyright was completed by the end of the eighteenth century. Second, the relation between the ideology of authorship and copyright law are too often presented as direct exact correlation. This neglects the complexity of the interaction between the two and attracts the criticism that large parts of the actual legal doctrines of modern copyright law seem diametrically opposed to the presuppositions of original authorship. The paper remedies those shortcomings of authorship scholarship by focusing on the development of copyright law and discourse in nineteenth century America. It argues that much of the coming to terms with the new dominant status of original authorship and the weaving of this ideology into the actual doctrines and modes of thought of copyright law took place during this later period. Furthermore, the diffusion of the ideology of authorship into copyright law never created an exact correlation between copyright doctrine and the theoretical notions of original authorship. Instead, the paper argues, the trope of authorship was used in a variety of forms and contexts. Sometimes individual authorship was the direct foundation of significant developments. At other contexts it was explicitly rejected. In yet other cases, the ideology of authorship was used strategically or in a way that created a widening gap between legal rhetoric and actual legal arrangements. The paper explores this complexity of the relationship between copyright and authorship as it consolidated during the nineteenth century by analyzing the emergence of new doctrines and modes of analysis such as: originality doctrine, the invention of the notion of the intellectual work and the work for hire doctrine.

copyright history, authorship, author, originality

Abstract:
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.

copyright, google, search engine, digital library, opt-out, print libray

Abstract:
This essay argues that the process of the commodification of information, in the historical context of patents, was not merely an increase in the extent to which patent rights and the information they protected were the subjects of market transactions. The commodification of patents, rather, involved the development of a particular institutional form and the construction of a specific market. The essay surveys the development in the Anglo-American legal tradition of one seminal aspect of this institutional change: the transformation of patents from particularistic privileges to universal rights. The early origins of patents in England and later in the American colonies were particularistic privileges. Patents were case specific, discretionary grants of economic privileges made by either the executive or the legislature. These grants were openly political and their legitimacy rested on a case-specific claim to promoting the public interest. In a three hundred year process that culminated in the mid nineteenth century patents became universal rights. Under this new institutional model patents became a standard set of entitlements enjoyed, as a matter of right, upon the fulfillment of general and uniform substantive and procedural criteria. Patents came to be seen as neutral rights whose legitimacy is rooted in the general social utility of the regime as a whole rather than that of any specific case. The government was reassigned the role of a non-discretionary impartial enforcer of patent rights. The essay argues that, despite important innovations of the first American patent regime, this institutional change was far from complete when it was launched in 1790. It describes the later parts of the process that stretched into the aftermath of the 1836 Copyright Act and beyond. The essay ends with a few brief suggestions about the significance of the modern institutional character of patents as universal rights.

Patent, history