Stephen M. Maurer,
From Bards to Search Engines: Finding What Readers Want from Ancient Times to the World Wide Web, 66
S.C. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2450
Copyright theorists often ask how incentives can be designed to create better books, movies, and art. But this is not the whole story. As the Roman satirist Martial pointed out two thousand years ago, markets routinely ignore good and even excellent works. This insight reminds us that incentives to find content are just as necessary as incentives to make it. Recent social science research explains why markets fail and how timely interventions can save deserving titles from oblivion. This Article reviews society's long struggle since the invention of literature to fix the vagaries of search. The Article builds on this history to suggest policies for the emerging world of online media.
Homeric literature was produced and disseminated through direct interactions between audiences and authors. Though attractive in many ways, the process was agonizingly slow. By the first century A.D., commercial publishers had moved to the modern model of charging readers above-cost prices to pay for search and marketing. Crucially, the new model was only sustainable so long as firms could suppress copying. This Article argues that Roman and early modern publishers developed remarkably successful self-help strategies to do this. However, their methods did little to suppress copying after the first edition. This seemingly modest defect made publishers profoundly risk averse. Ancient best seller lists were invariably dominated by authors who had been dead for centuries.
Publishers' self-help systems collapsed under a wave of piracy in the mid seventeenth century. This led to the first modern copyright statutes. Crucially, these new laws extended protection beyond the first edition, empowering modern business models in which publishers gamble on a dozen titles for each that succeeds. The ensuing proliferation of titles helped foe/ the Enlightenment and promoted a rich new ecosystem of search institutions including libraries, newspaper critics, and editors.
The Digital Age has changed everything. As copyright fades, the old institutions for finding titles are drying up. This Article explores several possible responses. First, society can shore up current publishing models by expanding copyright and technical protections. These methods cannot save book search, but might be adequate for music and movies. Second, search engines could pay for editors. This Article argues that an on-line digital bookstore can suppress copyists long enough to fund reasonable search efforts. Finally, society can return to the Homeric pattern of harvesting advice directly from audiences. This Article explores various commercial and open source institutions for organizing the work.