Google Book Search in the Gridlock Economy

Patents, Copyright and Trademark and Intellectual Property

Article Snapshot


Doug Lichtman


Arizona Law Review, Vol. 53, No. 1, pp. 131-143, 2011


Michael Heller’s book The Gridlock Economy argues that too many property rights can block economic growth. Such gridlock results when the property rights are intertwined, so that each right becomes valueless without permission to use the others.

Policy Relevance

Google Book Search does not face a problem of gridlock.

Main Points

  • Michael Heller’s theory is that worthwhile projects can be derailed if the project requires permission to use the property of too many different entities.
    • Blocking patents drag down innovation.
    • Copyright law makes it almost impossible to make “remix” art.
  • Gridlock theory problems do not arise just when property rights are numerous, but either when:
    • Lack of permission to use one right blocks the use of the others.
    • The last permission sought gains artificial importance, because it can make the other permissions useless.
  • Google Book Search is an online search engine that lets users to search the text of all published books; creation of Google Book Search requires the permission of copyright holders, because Google’s use of the books is not fair use.
  • Google complains that copyright blocks Google Book Search, and that the only way to build a comprehensive search engine for books is to use the books without permission.
  • The problems faced by Google Book search, however, is a problem of sheer numbers; the rights that Google seeks are not intertwined.
    • No single copyright holder can veto the project.
    • Even if Google includes only 30% of books in Book Search, it is still a valuable resource.
    • Google can obtain many of the rights it needs in negotiation with publishers.
  • If Google cannot find the copyright owner of a work to negotiate permissions, inclusion of the work might be “fair use.”
  • Giving authors a right to “opt out” does not transform Google’s use of books into a fair use, because it would be unworkable for authors to constantly be opting out of similar projects.


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