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Lawrence Lessig, Google, and Internet Commerce

Probably the last guy I want to argue with is Lawrence Lessig. The guy is clearly brilliant, and quite capable of making a case. And… he is known to be on the good side, behind major initiatives like the Creative Commons. But this time I have to disagree with Mr. Lessig and highlight what appears to be a lack of acknowledgement of one important way web publishing differs from traditional publishing. That one way also happens to be a primary source of revenue for competitive webmasters and Internet marketers.

I’m talking about search. And I don’t limit that to Google and Yahoo!. By search I mean the process of engaging in pursuit, using the Internet.

Mr. Lessig discusses the recent wierdness at BookExpo America. A Macmillan executive “stole” a few Google laptops, and suggested it was a demonstration of what Google does to book publishers when it scans and indexes their books online. Mr. Lessig says it’s not the same thing at all. Lessig, a foremost Internet writer on issues of intellectual property/copyright and the Internet, could have stopped after saying that the computers were physical property and one-of-a-kind. He could have stopped after this very good statement:

Google intends to index the books, and make them searchable. If a hit comes through the search engine, Google offers snippets of the text relevant to the search. The page includes links to libraries where the book might be borrowed; it includes links to book stores where the book might be purchased. And, I take it, if the “publishers” were to choose to publish the book again, it would also include a link to that publisher. Finally, any author who wants to be removed from this index can be removed. As with Google on the net, anyone can opt out.So vis-a-viz a computer sitting at a demonstration booth at a conference, is the “head honcho’s” action like Google’s? Obviously not.

But, he didn’t. He continued and said:

If the “head honcho” has Google’s computers, Google can’t use them. But if Google indexes out of print books, that does not — in the least — reduce the access anyone else has to the same property.

And there Mr. Lessig demonstrates that he is all about copyright, but missing a big point about the commerce surrounding copyright. The issue of Google stealing content to index and republish as snippets on the web is NOT as much about copyright as it is commerce. And that is where search comes into the picture. As long as brains like Mr. Lessig continue to focus specifically on old laws (like copyright), Google will continue to redirect valuable commerce by scraping, copying, and caching without permission.

Here is what Mr. Lessig notes about Google’s unauthorized use of copyrighted works:

If the computer was not sitting at a market booth, but instead was in a trash dump (like, for example, the publishers out of print book list), or on a field, lost to everyone, then that fits the category of property that Google is dealing with. But again, Google doesn’t take possession of the property in any way that interefers with anyone else taking possession of the property. The publisher, for example, is perfectly free to decide to publish the book again. Instead, in this case, what Google does is more like posting an advertisement — “lost computer, here it is, is it yours?”

No. That is not correct. The monetization of the content involves controlling the distribution of the content, not just the distribution of the physical copies of the content. Competitive webmasters know that it is the search that engages the consumer. It is the search process that initiates transactions which yield dividends for all of the (authorized) players in the supply chain. The user searching for a book online reveals data about himself that has market value. The user clicking on clues in the process of finding a book online is initiating financial transactions along the way, as clicks are paid and links are bartered and ad impressions are delivered. Anyone publishing a free ebook can tell you that the value of that pursuit often exceeds the value of the actual ebook. And Google is taking that value out of the channel… without permission.

Now of course in the market one does not have to be authorized to participate in the flow of revenue surounding the existence of a book. Write a book review and you earn eyeballs that might otherwise have gone to the book publisher, author, distributor, or other channel partner. Distract the consumer looking for Book A and show them a better option – Book B. All fair play in commerce. It takes effort, costs money, and enriches the consumer experience. But Google doesn’t play that way.

By indexing other’s content and serving it up in snippets plastered with advertising, Google is using those other’s work to steal away revenues from the market. Google didn’t write the book review. Google didn’t write catchy ad copy. Google didn’t lease billboard space in the perfect location along the highway, or rent prime retail space in the shopping district to catch shoppers strolling past. Google didn’t insert a circular in the Sunday Paper.

Google may not be technically violating copyright law, but if that is the case, we need brains like Mr. Lessig to figure out for us what new forms of copyright law we need to protect our original works for unauthorized exploitation. It’s not a theoretical exercise. It’s a means of protecting our right to the pursuit of happiness.

It’s no longer about stealing the book and leaving someone the lesser, Mr. Lessig. That ceased to be important when Google started advertising in search results. It’s now about monetization of the process of publishing original works. Perhaps the Macmillan executive should have simply copied the powerpoint slides from those Googlers, and displayed them at his booth to draw a crowd interested in hearing what Google was doing. Once in the Macmillan booth, of course Macmillan could deliver the Macmillan anti-Google message.

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