Intellectual Property Law

Google Thievery

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Google’s a thief. The company steals people’s copyrighted material (Rupert Murdoch); perhaps it’s misappropriating hot news (Associated Press); it’s even planning to replace Maureen Dowd! (Is this bad?) Some comments are even stronger: Robert Thomson of the Wall Street Journal called Google “tech tapeworms,” and The Guardian’s Henry Porter calmly assesses the company as “a parasite… delinquent and sociopathic… [with] a brattish, clever amorality.” Even supporters like Cory Doctorow are worried about the company.

As Wilt Chamberlain said, nobody roots for Goliath. What caught me, though, was how Porter frames the root problem:

Google is in the final analysis a parasite that creates nothing, merely offering little aggregation, lists and the ordering of information generated by people who have invested their capital, skill and time. On the back of the labour of others it makes vast advertising revenues…

Google’s stealing, then, deprives content creators of the sweat of their labors. They’re reaping where they have not sown. Intuitively, this appeals. What’s fun for me is that I think it’s ultimately a daft argument.This contention picks up labor-desert theory, most commonly associated with philosopher John Locke. For Locke, people possess only their body and their labor. Once we use our labor to create something new from the common store of ideas, concepts, and facts, we deserve a property right in that new thing; to do otherwise would be to harm us. Newspaper reporters create stories from the world’s facts and thus we might want to reward that labor. So far, so good.

But labor-desert theory raises a hard question: how much of the new thing really derives from your labor? Reporters depend on facts, quotes, standard journalistic constructs and techniques… their labor is a necessary component, but it’s not the sole reason for a story’s value. Put it this way: imagine I lease a Chevy Impala. I use it to start a thriving, highly profitable pet supply delivery business. Without the Chevy, I’d be taking the subway or biking - not good options when carrying kibble. But you wouldn’t see autoworkers or Hertz employees lined up outside my apartment asking for a cut of the profits. How is the Google situation different?

My sense is that what’s really at work is what Margaret Radin put forth as “personhood”: people feel less possessive about a car they’ve created than a story they’ve written. (Why is that? Building a car is much harder.) The story is mine; I have a right to determine how it’s used, and to receive benefits that flow from that use. Plus, creators focus on what lawyers call “but-for” causation: but for my labor, this story wouldn’t exist. Hence, my control over it deprives no one. But there are lots of reporters, and they often file very similar stories. There are even citizen journalists and bloggers who can do (some of) the same work. So, “but-for” doesn’t really work.

At base, I don’t think this is about copyright, or “hot news” misappropriation, or IP at all. It’s psychological. Content industries are in massive flux that’s painful for those who work in them. The old intermediaries (record labels, movie studios, the New York Times editorial staff) are in retreat, and new ones (Google, iTunes, Digg) are on the rise. The invective derives from dislocation, from uncertainty, and from resistance to change. But things will be OK. After all, the MPAA’s Jack Valenti once compared the VCR to the Boston Strangler, and the little boxes turned out to be a boon for the movies.

Steal away!

Full post as published by Info/Law on April 19, 2009 (boomark / email).