Google pushes the boundaries of copyright laws

By Richard Koman - October 23, 2006

The conventional wisdom is that in acquiring YouTube, Google is exposing itself to untold litigation for the reams of copyright material that exist on the site. For instance, last week YouTube deleted 30,000 clips identified as copyrighted Japanese TV and movie content. Here's Mark Cuban on the prospects:

If Google gets nailed one single time for copyright violation, there are going to be more shareholder lawsuits than Doans has pills to go with the pile on copyright suits that follow.

And YouTube is just one of the several major legal issues Google's 100 in-house lawyers and outside law firms are dealing with. Google Books, Google News, Adsense and even the search index are the subjects are lawsuits challenging every major aspect of Google's business

Google's reaction: Bring it on.

According to Katie Hafner's article in the Times this morning, Google uniquely among giant corporations is trying to re-define the law.

“I think Google is wanting to push the boundaries,” said Jonathan Zittrain, professor of Internet governance and regulation at Oxford University.

“The Internet ethos of the 90’s, the expansionist ethos, was, ‘Just do it, make it cool, make it great and we’ll cut the rough edges off later,’ ” Professor Zittrain said. “They’re really trying to preserve a culture that says, ‘Just do it, and consult with the lawyers as you go so you don’t do anything flagrantly ill-advised.’ ”

First and foremost is copyright. For instance, Does Google have the right to create thumbnail versions of copyright owners' images? A porn site, Perfect10, won a federal injunction against Google doing just that. Perfect10 claimed Google interfered with their ability to sell porn images to cell users. Google is appealing and the Ninth Circuit will hear oral arguments next month.

And European news agencies are suing to stop Google from reproducing their headlines, photos and story fragments. "From our perspective, these are simple issues that were decided a long time ago,” said Alex Macgillivray, Google's senior product counsel.

This is the crucial copyright question: Does Google have the right to process other people's content in ways that don't directly infringe on a strict interpretation of copyright? With Google Books, Google insists on the right to digitize copyright books so they can provide full-text searches, even though they only serve up snippets.

To my way of thinking, courts should interpret this question according to the rationale of the Constitution - "to promote the progress of science and useful arts" - and thus where Google's services detract in no way from the copyright holder's ability to control and sell its product, Google should be able to provide a service that improves access to users' ability to use the product.

In the case of books, search access should increase sales, since people will be able to discover the value of books no longer being actively promoted. In the case of news, it clearly drives traffic to newspapers' sites.

I think Google will lose the Perfect 10 case since the porn producer can show a direct interference with its own business models. That's distinguished from the book and news cases, where there is no actual damage.

If that's so, companies will need to do more than complain and sue - they will need to develop their own innovative business models. In a battle between innovators, Google is by no means guaranteed victory. In a battle between innovation and the resistance of dinosaurs, the dinosaurs will lose eventually, both in the market and in the courtroom.

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By Richard Koman - October 23, 2006 | Permalink | Comment | Category: News Watch
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Comments (1)

Tim Cohn:

If Norman Zadeh's Perfect 10 didn't want Google or the other search engine's spiders indexing and caching his website's copyrighted content and images all he had to do was place the following robots exclusion file in his directory:

User-agent: *
Disallow:/

Of course adding this to his site would limit the number of free visitor referrals he receives from search engines.

It also wouldn't generate any lawsuit related publicity or visitor traffic.

Posted: October 23, 2006 1:44 PM

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