You could say some of the sound bites from Microsoft’s latest rant over Google’s approach to copyright law bear a resemblance to a political campaign – not just because they carry the same tintinnabulation of highroad mantras, but have the same stabbing indignation of a call to war. Google’s doin’ wrong, says the Beast of Redmond, and we’ve got to do something about it.
“We must forcefully reject any business model that is based on the systematic infringement of copyrights,” Microsoft’s associate general counsel of Copyright, Trademark and Trade Secrets, Tom Rubin, plans to say in a speech reminiscent of those heralded American revolutionaries at the Association of American Publishers Annual Meeting, held at The Yale Club of New York.
The AAP has been tied up in litigation with Google for the past year and a half.
Specifically critical of Google’s Book Search project and the search engine company’s controversial practice of scanning copyrighted books without author or publisher permission. Rubin says Google “that takes a unilateralist or ‘opt out’ approach where the practice is to simply to ‘take’ the works of others, without any regard for copyright or the impact of their actions on authors and publishers. Microsoft doesn’t believe that is the right approach.”
Rubin calls Google’s fair use defense, which seeks to justify the scanning and indexing of books by allowing only snippets of material to be shown, a “novel” theory that raises serious questions. The heart of the issue is not the benefits of promotion authors receive, or the amount of copyrighted text used, but that Google assumes the right to copy these books without permission in the first place.
It sets a precedent, he argues, that allows any online player to do the same. If approached this way en masse, it puts undue burden on publishers to track down those similar services in order to prevent unauthorized material from being indexed.
“Presumably, the desire to preserve these rights is why they asserted copyright in the first place. This approach would be absolutely unworkable in practice, which is probably why Congress in enacting the Copyright Act placed the burden on those who want to copy to get the express consent of the copyright owner, rather than the other way around.”
Rubin then does what a lawyer does best: he piles it on with other examples of Google’s “cavalier” approach to copyright. “Since YouTube’s inception, television companies, movie studios and record labels have all complained that the site knowingly tolerates piracy,” he says. This has “forced” copyright owners to resort to litigation.
And then, it’s personal: “Microsoft was surprised to learn recently that Google employees have actively encouraged advertisers to build advertising programs around key words referring to pirated software, including pirated Microsoft software.”
This is also an excellent opportunity, while he’s illustrating how not to do it, to mention Microsoft’s new Live Search Books Publisher Program, which enlists the aid of The British Library, the University of California Libraries, Cornell University Library, the University of Toronto Library, and The New York Public Library for out-of-copyright works.
For books in copyright, Microsoft waits for express permission from copyright holders, and offers them access to an online dashboard that allows them to manage the amount of text a reader may view, and create click-to-buy links, and edit metadata.
In essence, says Rubin, Google “cannot ‘opt out’ of the law’s obligation to respect the rights of others.” And that, in the sparring business world, is what we refer to as a “cheap shot.”
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