Microsoft Copyright Attorney Bashes Google Book Search

Google's (Nasdaq: GOOG) Book Search project "systematically violates copyright" and deprives content owners of the opportunity to make money from their creations, according to a top Microsoft (Nasdaq: MSFT) attorney.

In a prepared speech to be given Tuesday to the annual meeting of the Association of American Publishers (AAP) in New York, Thomas Rubin, Microsoft's associate general counsel for copyright, trademark and trade secrets, accuses Google of taking a "cavalier approach to copyright" and of making money off other people's copyrighted creations.

"Concocting a novel 'fair use' theory, Google bestowed upon itself the unilateral right to make entire copies of copyrighted books not covered by publisher agreements without first obtaining the copyright holder's permission," Rubin says in his speech.

'The Wrong Path'

"Google's chosen path would no doubt allow it to make more books searchable online more quickly and more cheaply than others, and in the short term this will benefit Google and its users," Rubin notes in the speech. "But the question is, at what long-term cost? In my view, Google has chosen the wrong path for the longer term, because it systematically violates copyright and deprives authors and publishers of an important avenue for monetizing their works. In doing so, it undermines critical incentives to create."

Microsoft's competing initiative, Live Search Books, uses only material that is out of copyright or for which agreements have been reached with publishers. Libraries providing the public domain material include The British Library, the University of California Libraries, Cornell University Library, the University of Toronto Library and The New York Public Library.

Legal Woes

Google's approach puts the burden on copyright holders to seek out and tell Google they want to opt out of Book Search, rather than vice versa, according to Rubin. The legal problems over Google's YouTube video-sharing site in which content owners are suing Google over what they say is a lack of effective action to stop copyright infringement, he adds.

"In essence, Google is saying to you and to other copyright owners: 'Trust us -- you're protected. We'll keep the digital copies secure, we'll only show snippets, we won't harm you, we'll promote you,'" Rubin declares in his speech. "But Google's track record of protecting copyrights in other parts of its business is weak at best."

Officials at Google could not be reached for comment.

The $64 Million Question

"This is a $64 million question," Peter Hirtle, intellectual property officer for Cornell University Library, told the E-Commerce Times.

"I have no idea how the courts would rule, but there's a certain amount of appeal in Google's approach. To have a full-text index of all the literature of the world would be a fantastic resource," he continued. "It's too expensive to try to secure the permission of copyright owners, who in many cases can't be identified or located. It seems to me the only way to do it is the way Google is doing it."

Google's use of copyrighted material on Book Search is "entirely reasonable," Hirtle added, and will ultimately increase publishers' sales .

What About the Index?

If Google loses this battle, it could have dire implications for information access, Hirtle warned.

When Google delivers search results using its index of Web sites, it is essentially reproducing copyrighted material, since every site on the Web is copyrighted, Hirtle pointed out.

"That's incredibly valuable and useful, but it's also potentially in competition with the original site. If Google loses on Book Search, it makes you wonder if it should also lose on its index," he concluded.

A Bumpy Ride

"Just as with the woes of the music and film industries, the transition to this brave, new digitalized world is bumpy," technology attorney Raymond Van Dyke told the E-Commerce Times.

A lawsuit filed by the Authors Guild against Google is just the beginning of the "war over text," Van Dyke added. "Content owners have a legitimate expectation of protection for their creative endeavors. Those expectations, however, are being tested and perhaps redefined by newer and more powerful technologies."

Ultimately, "The question is whether the rising tides of technology will overrun the levees of the content industries," he added.