Silicon Valley Watcher - Former FT journalist Tom Foremski reporting from the intersection of technology and media

3.6.07 MS to publishers: Fear Google, solve 'orphan works' problem

Posted by Richard Koman - March 6, 2007

Microsoft launched an attack on Google's respect for copyright today. Speaking at a publishing conference, Tom Rubin, Microsoft's associate general counsel accused Google of encouraging salespeople to sell keywords on pirated software and illegal downloads of music and movies.

Text of Rubin's prepared remarks

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. And we weren’t the only victims – Google also encouraged the use of keywords and advertising text referring to illegal copies of music and movies. These actions bolstered websites dedicated to piracy and reportedly netted Google around $800,000 in advertising revenues from just four such pirate sites.

At the end of a speech where he emphasized Microsoft's respect for copyright and castigated Google for treating it cavalierly, Rubin also told the publishing industry that it needs to update its act and make accomodations to the online world.

He especially called for two industries to come up with a solution to the orphan works problem - the fact that it's virtually impossible to find owners of many copyrights.

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."

He also told the publishers they need to realize that online customers expect to preview content before they buy it and that DRM can't be allowed to "frustrate customers' legitimate expectations."

The press coverage, of course, focused on the Google attack.

While Google says that it doesn’t currently intend to place ads next to book search results, Google’s broader business model is straightforward – attract as many users as possible to its site by providing what it considers to be “free” content, then monetize that content by selling ads. I think Pat Schroeder put it best when she said Google has “a hell of a business model – they’re going to take everything you create, for free, and sell advertising around it.”

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.

Rubin says that Google's theory that it is merely making "fair use" of the materials is without merit. Rubin emphasizes that Microsoft respects "legitimate" fair use - it filed an amicus brief supporting an author's right to make use of material from "Gone With the Wind." But rather than explain why Google doesnt' have a fair use right to scan copyright materials, he says merely:

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.

Rubin contrasts copyright-respecting Microsoft with off-the-reservation Google:

So, what we really have here are two fundamentally different paths. Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop. Microsoft and most other companies, by contrast, take the position that they should get the copyright owner’s consent before they copy. The Copyright Act, in our view, supports this approach. It’s hard to see any justification for exempting Google from its requirements.

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