Dissecting Microsoft's copyright scrum with Google

After reading the Microsoft associate general counsel Thomas Rubin's speech blasting Google over copyright you're really left wondering what the hubbub is about.

Rubin is speaking to the Association of American Publisher's Annual Meeting and his comments have been portrayed as a Godzilla vs. King Kong type affair. After all we love conflict--especially the Google vs. Microsoft variety.

But once you cut through all the blogosphere chatter (Techmeme discussion) and read Rubin's speech you're left with the following items: 

• A commercial for Microsoft's competing book search technology.
• The blasting of Google over copyright. It's not like there's anything new here. The book industry has voiced these concerns for awhile.
• Talk about the road ahead for publishing copyright issues. Guess which long term vision Rubin supports? Hint: Headquarters is in Redmond.

Here's a deeper look at those aforementioned items.

The commercial: Rubin talks about Microsoft's Publisher program, Live Search and .Net platforms. It also mentioned Times Reader--gotta get a Vista plug in there somewhere.

The flavor: "Another innovation that’s a personal favorite of mine is the British Library’s “Turning The Pages 2.0” technology. It was recently launched in late January and is built on Microsoft’s .NET 3.0 engine which is integrated into Windows Vista and also available as a separate download for Windows XP. This technology makes it possible for Internet users to view old texts that would not otherwise be accessible to the public, but in a way that highlights the richness of the original works."

The Google blasting: Well we knew this one was coming. If you're pitching a bunch of publishers it helps to take the high ground over copyright. Rubin paints Google in a corner.

The flavor: "To accomplish its book search goals, Google persuaded several libraries to give it unfettered access to their collections, both copyrighted and public domain works. It also entered into agreements with several publishers to acquire rights to certain of their copyrighted books. Despite such deals, in late 2004 Google basically turned its back on its partners. Concocting a novel “fair use” theory, Google bestowed upon itself the unilateral right to make entire copies of copyrighted books not covered by these publisher agreements without first obtaining the copyright holder’s permission.

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. 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. This violates the second principle I mentioned. Google has also undertaken this path without any attempt to reach an agreement with affected publishers and authors before engaging in copying. This violates both the second and third principles.

Google defends its actions primarily by arguing that its unauthorized copying and future monetization of your books are protected as fair use.

To be sure, Microsoft has a long history of strong support for the fair use doctrine. In 2001, for instance, we were proud to author an amicus brief in The Wind Done Gone appeal in support of Houghton Mifflin’s argument that Alice Randall had made fair use of copyrighted material from Gone With the Wind. In the case of book search, however, suffice it to say that there are serious questions about the merits of Google’s fair use defense.

Rather than delve into this arcane legal issue, what we really should be asking is whether it would be possible for Google to provide its Book Search service in a way that respects copyright. The answer to this question is: of course there is. How am I so sure? Well, because we at Microsoft are doing it."

The road ahead: Rubin argues that there needs to be a way to lower transaction costs between online service providers and copyright owners, preserve Internet's reach, address orphan works issue and understand consumer expectations. Hard to argue with any of that.

The flavor on the orphan works issue: "We need to address the orphan works issue, an important issue that I have supported in testimony before the U.S. Senate Judiciary Committee. Online providers should make diligent efforts to locate copyright owners, but when they cannot locate the owner, there must be a process or a safety net by which they can move forward without risk of liability beyond payment of a reasonable royalty if the copyright holder later makes herself known."

Add it up and you have a carefully orchestrated copyright grenade thrown at Google. And given the Microsoft and Google have competing book publishing technologies is that too surprising?