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 world. 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. "Search costs" have been well-documented in information economics and addressed by trademark law. 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. These categorizers are not "free riding" off the labor of copyright holders. Rather, they are creating the navigational tools and filters that help consumers make sense of the ocean of expression copyright holders have created. The new scholarship of cultural environmentalism lays the groundwork for a better understanding of the costs, as well as the benefits, of copyrighted expression. Any expression that signals something to one who wants exposure to it may constitute noise to thousands of others. By modeling information overload as an externality imposed by copyrighted works generally, 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.