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When Microsoft (Nasdaq: MSFT) attorney Thomas Rubin on Tuesday accused Google (Nasdaq: GOOG) of taking a "cavalier approach to copyright" and of using its Book Search project to make money off other people's copyrighted creations, he ignited a fiery debate over the ethics of information access, the meaning of copyright and the very rules of free-market competition.
Rubin's comments were directed at the Association of American Publishers, and referred to Google's ambitious Book Search project to digitize and make available electronically the contents of all the world's books, whether still under copyright or not. Microsoft's competing Live Search Books, by contrast, provides only material that is out of copyright or for which agreements have been reached in advance with publishers.
While Microsoft's approach is more conservative and legally cautious, it is also expected by many to produce an inferior result from the user's perspective, since only a subset of books will be available. Whether Google is justified in its tactics -- either by the knowledge it will achieve a better result, or by some other conviction regarding copyright and competition -- is another question.
A Reasonable Interpretation
Looking first at the question of copyright, whether Google's interpretation of "fair use" -- criticized so sharply by Rubin -- is indeed unreasonable seems to be highly debatable."While I normally avoid commenting on disputes between members, I cannot overlook Microsoft's unfortunate mischaracterization of copyright law," said Ed Black, president of the Computer & Communications Industry Association, of which both Microsoft and Google are members.
"Contrary to Microsoft's suggestion, every unauthorized use of a copyrighted work is not infringement. Highly transformative copies, such as those made by search engines like Google and Microsoft's own MSN, or those made by Microsoft's software programmers when reverse-engineering competitors' products, are fair use under copyright law," Black continued. "Microsoft would do well to consider that its own business depends on fair use before brushing aside that important doctrine."
The Financial Question
Indeed, "the fact that Google could make money from it doesn't mean it's not fair use," Peter Hirtle, intellectual property officer for Cornell University Library, told the E-Commerce Times.
"Copyright practice currently labors under an oppressive 'permission culture' in which every unauthorized use of a work is viewed as a potential violation of the law," Black added. "This distorted view of the law undermines access to information, is hostile to innovation and most importantly -- is not accurate. The copyright monopoly is a limited one, and it must stay that way if it is to continue to promote progress."
"This is an interesting and complicated issue," Greg Sterling, principal analyst for Sterling Market Intelligence, told the E-Commerce Times. "Barriers to copying and downloading have been all but obliterated for ordinary people. That's a cultural reality that now exists, and it's the backdrop against which all this has to be considered."
The Impact on Owners
Whether or not content owners get harmed by having their content aggregated by Google is also an open question. "There's a double-edged quality in having your content aggregated by Google," Sterling pointed out. "There is tremendous exposure that comes from it, but it may not ultimately help you as much as it helps Google."
Sterling cited the example of a "Saturday Night Live" skit that was illegally uploaded onto Google's YouTube but that ended up increasing the show's ratings, as well as the case of newspapers, which sometimes say Google News is drawing away reader loyalty from their own sites. "There is an ethical issue here, but at the same time, Google is the biggest distribution mechanism on the Internet, and it can be very effective for content owners if they know how to work it," Sterling said.
"There are strong arguments on both sides, and it will depend how things play out," agreed Rob Enderle, president and principal analyst at the Enderle Group. "Google is being a wee bit arrogant. I have no argument that it may increase sales 
and produce a better result" than Microsoft's approach, Enderle told the E-Commerce Times, "but Google is trampling a lot of rights to get there."
Bigger Stakes
Even more important than the question of copyright and information access, however, may be the higher-level questions this debate raises about the nature of competition.
"My take is that there's something more at stake here than just a spat between Google and Microsoft," Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, told the E-Commerce Times.
"The bigger question is whether or not you agree with Microsoft that only those who collaborate in advance with copyright holders should be able to innovate and build on the value of copyrighted works. This is ironic coming from a company that claims to be in the business of innovation," he noted.
There are countless examples of businesses and innovations that were built by using copyrighted works without asking permission, von Lohmann said, including VCRs, iPods, reading glasses, stereos and even operating system software like Microsoft Windows. "None of the companies that developed those products asked for permission, but we're all the better for it," von Lohmann pointed out.
Deep Pockets Required
Requiring that innovators ask permission before building upon other intellectual property would reduce the capital market to one reminiscent of the Soviet Union, he added. "That is not the way a free market works, and it's not the way our free market has ever worked. The ability to invent the future without having to ask permission has always been an engine driving our economy."
If Google wins the ability to move forward with its project, that will be a fair use precedent that other innovators will later be able to use to compete with Google, von Lohmann added. So, whereas Microsoft's approach would require that innovators cut deals before innovating -- "a world that only helps Microsoft, and in which only the big players will be able to afford the thousands of lawyer hours to work out those deals" -- Google is essentially fighting for the rights of all innovators, he explained.
"We've been critical of Google on other issues in the past, but this is one instance where I'm firmly on Google's side," von Lohmann concluded. "Microsoft should be ashamed of this 'collaborate first, innovate later' message."
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