On the eve of Google Books Take 2, a/k/a Google Music, we are treated to this strong analysis from Google economist Hal Varian as quoted in IP Watch: Art doesn’t scale.
Well, what he actually said was: “Searching for the owners of these copyrights is not done at a socially optimal level, Varian told the audience. [In case you are incapable of sequential thought, e]conomic analysis helps tease out why: the costs of searching can be high, there can be perverse incentives (e.g., in the case of submarine patents – where a rights holder can benefit from an infringement so much that there is an incentive to seek to have rights infringed).”
Or maybe the rights holder doesn’t want to be found, doesn’t want to be treated like a machine, and doesn’t want to take a chance on finding out that their work was mislabeled by some code monkey who is doing good to distinguish between a Ring Ding and Ding Dong and who coded Madame Bovary as written by Henry James, dude. (See “Google Books: How Bad Is the Metadata?”)
Maybe the rights holder just doesn’t like Google? Maybe the rights holder doesn’t want your great innovation? Maybe Varian’s bosses should just look elsewhere for willing victims of Google Logic?
No, no, that’s not the conclusion that Google Logic leads to–the correct conclusion, you see is that Google can use its market dominance to force all artists to participate in whatever the “innovation” is today whether they like it or not. “Innovation” rarely innovates more money for artists–and it almost always tries to deny artists the right to set their own price. Instead, the price that Varian’s bosses want to pay for content is derived from the margins available to Varian’s bosses.
Meaning that there never is the step of–gee, I guess we can’t afford this “innovation” because the inputs are too costly. The conclusion always is make the artists come down on their price so we can afford to pay the code monkey to make mistakes with the metadata.
And if the artists don’t want to do business, Google will just take their work anyway. And they’ll get away with it because of their market domination.
And where does all this lead? IP Watch gives Google the Big Wet One:
“The best solution to the problem of transaction costs caused by intellectual property with regards to orphan works is a clearinghouse that would not onlycontain a registry of potential rights holders, but would also indicate prices different sellers might ask for the licence on their work.This is “fairly explicitly” the goal of the Google Books project, Varian later explained to Intellectual Property Watch: to create a central point where potential buyers can “examine the material, decide what you want to view and carry out the transaction.””
And who owns that registry and takes a vig? Google.
Goodbye Harry Fox Agency. Goodbye ASCAP, goodbye BMI. And goodbye audits of Google by these organizations on behalf of their members. Goodbye lawsuits against Google for infringing their writers’ works.
Because the real benefit to Google of getting rid of the “gatekeepers” is that while art doesn’t scale, litigation does–if you can aggregate plaintiffs, particuarly artist plaintiffs. No one artist can afford to sue a company like Google to a final nonappealable judgment to enforce the artist’s rights. (Remember–$100 million in legal fees in the Viacom/YouTube litigation–and counting.) The gatekeepers can, though. So Google wants to get rid of them.
If Google successfully destroys “gatekeepers” who can direct collective action against them, then what a wonderful world that would be for Google. That would just leave the Department of Justice and states attorneys general who are only beginning to wake up to the real dangers of the Leviathan of Mountain View.
And to the shenanigans of ex-Google employees (although you would not be too sure about the “ex” part in the case of Andrew McLaughlin, former worldwide head of policy for Google and current White House technology advisor).
But then again, Eric Schmidt hasn’t had the experience of sitting in front of the House Government Oversight Committee and saying those famous words, “On the advice of counsel….” That experience has a tendency to focus the mind.
Although it’s not a great cure for the amnesia that runs in epidemic proportions at the Googleplex.