When giving a speech to a particular interest group, it’s not uncommon for a speaker to take a stand that is sympathetic to that group, but Microsoft lawyer Tom Rubin seems to go a little overboard in a speech he was to give today the Association of American Publishers. In effect, Rubin paints Google as the enemy of publishing — and in fact of copyright in general — because of the way it scans books for the Google Print project.
“create no content of their own, and make money solely on the back of other peopleâ€™s content, [and] are raking in billions through advertising and initial public offerings.”
This is almost a word-for-word transcription of the argument that gets trotted out by everyone from the World Newspaper Association to the Belgian agency Copiepresse — which “won” its recent Quixotic case against Google for the heinous crime of driving traffic to its websites (more on that here) — and of course book publishers as well. “Look at all the money Google makes by linking to our content,” this argument goes. “We should get some of that.” One publisher actually made the idiotic comment that Google’s scanning is the same as saying “it’s OK to break into my house because you’re going to clean my kitchen.”
Rubin also says in his prepared remarks that Google:
“systematically violates copyright, deprives authors and publishers of an important avenue for monetising their works and, in doing so, undermines incentives to create.”
While Google is evil personified, of course, Microsoft is the book publisher’s friend. Why? Because Microsoft asks permission before it scans a book and Google does not. To publishers and other content owners, this is tantamount to theft — even if Google never shows more than a few sentences to the public, the AAP and others argue that simply by scanning those books Google is breaking the law. Is that true? Well, that depends.
In a piece written he wrote in 2005, Google CEO Eric Schmidt responded to this claim by saying that critics:
“argue that making a full copy of a given work, even just to index it, can never constitute fair use. If this were so, you wouldn’t be able to record a TV show to watch it later or use a search engine that indexes billions of Web pages.”
Google’s Book Search FAQ notes that the “fair use” exemption (the text of which is here) allows both individuals and corporations — yes, even those that make money — to copy and use material in certain ways without having to ask for permission (there’s a great overview of the issue in this New Yorker piece). And the U.S. courts have ruled in the past that Google’s web cache, which is effectively a carbon copy of billions of copyrighted works, is fair use.
Belgium, of course, might disagree. And as Stanford’s primer on fair use states: “Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.” You can say that again. And meanwhile, Microsoft seems happy to use copyright law as a big stick with which to bash their major competitor. Classy move.
Danny Sullivan has a long and thoughtful critique of Rubin’s speech here, although I would disagree with his assertion that books are somehow different from the Web and therefore Google needs to ask permission before indexing them (Danny also has an even longer post on the issue of online copyright here). Also worth reading are Cynthia Brumfield at IPDemocracy and Don Dodge, who should get some props for taking a shot at his own company.