Copyright in an Era of Information Overload : Toward the Privileging of Categorizers

Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, categorize, or review works by providing small samples of them. They are not free riding off the labor of copyright holders, but rather are creating the types of navigational tools and filters that help consumers make sense of the ocean of expression copyright holders have created. By modeling information overload as an externality imposed by copyrighted works, this article attempts to provide a new economic justification for more favorable legal treatment of categorizers, indexers, and reviewers. Information overload is an unintended negative consequence of copyright law's success in incentivizing the production and distribution of expression. If courts grant content owners the right to veto categorizers' efforts to make sense of given fields of expression, they will only exacerbate the problem. Designed to promote the progress of the arts and sciences, copyright doctrine should privilege the efforts of those who make that progress accessible and understandable. Categorizers fill both those vital roles