Sunday, March 11, 2007

Microsoft's Blast Against Google: Is Copyright or Fair Use the Bogie?

CBC News reports along with many others on recent comments by Microsoft general counsel Thomas C. Rubin, an associate general counsel at the annual meeting of the Association of American Publishers in New York. Key quote: "Companies that create no content of their own, and make money solely on the backs of other people's content, are raking in billions through advertising revenue." This is, of course, just the kind of sabre rattling that the AAP membership wants to hear, so they got their money's worth from Microsoft's more publisher-friendly approach. Google seems to want to keep out of direct confrontation on this issue as much as possible: offered the chance to send a representative to this week's ASIDIC 2007 Spring Meeting to talk about how to position premium content in search engines Microsoft picked up the challenge to speak to this publisher-friendly audience but Google declined.

Rubin's "red meat" speech grabbed plenty of headlines but it did little to advance any new concepts in the debate as to how publishers should approach copyright in a search-oriented online distribution environment. As a major holder of copyrighted intellectual property themselves Microsoft gains strong allies with publishers at their side in arguing for upholding strong commitments to eliminating any threats to existing business models leveraging highly protected intellectual property.

While wanting to play to a partisan crowd is an understandable temptation the characterization of Google as the copyright bad guy is oversimplified. Google's real challenge to publishers is not around copyright, which it claims it protects carefully, but rather centered on U.S. fair use policies for copyrighted content. Google has been walking a line in exposing "snippets" of copyrighted content that they claim are in line with fair use doctrines in U.S. copyright law. Their aim, they say, is to protect the right of people to know what original works of authorship are available for their use, not to duplicate those works of authorship for consumption. Immense productivity gains - and significant increases in revenues going to many publishers - stem from search engines such as Google exposing copyrighted content via fair use guidelines.

By contrast Microsoft and other publishing partners have been hard at work developing technologies designed to protect copyrighted content without fair use capabilities built into their designs. The results so far are not working well, as admitted even by Microsoft Chairman Bill Gates. Typical DRM packages ignore fair use rights under copyright and hence circumvent the real purpose of copyright: to ensure that society is serviced by innovative ideas that will reward both those receiving those ideas and those creating those ideas.

As the U.S. Congress considers a bill introduced by representatives Rick Boucher (D-VA) and John Doolittle (R-CA) to make some nominal concessions in the Digital Millenium Copyright Act on copying content for personal, non-profit and journalistic uses there is a glimmer of hope that technologists will recognize the fundamental importance of fair use and move away from attempts to choke it off. All this can do is to stifle innovation - and hence create a less productive society that has fewer people able to afford proprietary intellectual property. Let's hope that Rubin's remarks are just the echoes of an outlook from a fear-based approach to new outlets for intellectual property and that innovators continue to respect both copyright and fair use as means to progress a profitable and effective publishing industry.
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