Microsoft Rips Google Before it Goes RIP

Thomas Rubin, associate counsel at Microsoft, criticized Google for "mak[ing] money solely on the backs of other people’s content... raking in billions through advertising revenue and I.P.O.s." What the NYT misses in reporting on this is that Rubin's statement comes from a report before the American Association of Publishers, one of the groups suing Google over Google Book Search, in the wake of several publishers unveiling their own book search services and Microsoft's own path-of-least-resistance book search program. Given this background, it's arguable that this is less of a legal criticism of Google's tactics than playing it up to book publishers so they'll sign on as a way to undermine Google.

Again, the whole book search idea, at least as far as Google has gone about it, isn't about reading best selling books online without paying for them. It's about the +/- 75% of books that are no longer in print, but not in the public domain, becoming searchable so that their value can be "rediscovered." This feeds into the longtail idea that some of those titles, lost to the public because they are no longer for sale or their copyright status is unclear (largely due to publishers' bad record keeping), might be of immense value to only a handful of people. Tapping into that need will increase sales for each book and on a whole represent a huge increase in overall book sales.

Rubin has testified before Congress on this issue of orphaned works and supports a remedies-based approach, whereby if a work turned out to not be an orphan work, then the author would be paid the market value of using his or her work. Google has decided to use an opt-out system where everything gets included until someone objects, but the difference between Google and the much more limited and cautious approach taken by Microsoft comes down to a simple disagreement as to what the law requires. What the lawsuit attacking Google Book Search really comes down to is whether there is a legitimate market (ie. licensing scheme) for making a searchable database for books outside of what can be done within the legal realm of fair use. Google says no, while Microsoft, wanting to enlist publishers to combat Google, says why not so long at it helps us against Google.

Fair use allows for using brief excerpts from copyrighted materials. When an article lifts a couple lines from a book or another story, one doesn't need permission to do that. Publishers argue that they could make tons of money by licensing the right to make their books searchable, but that argument only flies if more than what fair use provides is being presented to the user. To say that creating such a database requires such a license threatens book search in general, and would imply that every use of a few lines of text requires advance permission from the rights holder, which is legally preposterous. Everything you need to know about Book Search and fair use is in this video from Lawrence Lessig.

As was reported recently, several major publishing houses have unveiled their own book search features. Anyone who knows anything about search knows that splitting content into separate silos is a terrible way to provide search. I doubt that most know who published their favorite books, much less some random book one might have read in college that you simple want to remember whether you've been quoting it correctly. I know I don't. Book search needs to be like searching the web to be effective, meaning that everything needs to be accessible from a single portal. Not to mention the cost in scanning all these books and making them searchable, especially given that Google has been willing to bear the entire cost of its project at no cost to the publishers. Makes one wonder if the publishing houses with their own databases will see a return on their investment or whether their services will simply languish and suck money away from their principle business of publishing new books.

Online, given the potential technical controls that are/will be available to track content around the net, we are approaching the point where every use of every thing can be tracked, analyzed, and thus monetized to meet some appropriate standard. That should not mean that a publisher seeking to monetize their books being included in a book search program should get to be paid extra for that privilege. They never have been able to exercise control that far and I have yet to hear a compelling argument why the Internet means they should.

Publishers were offered money from advertising on the pages that people visit (a pay per use model) rather than a blanket license fee (which the publishers are seeking). If they want more, they are free to create their own indexes for search. What they shouldn't be allowed to do is to stop others from compiling books into a searchable database within the framework of fair use. After all, copyright exists as a balance between benefiting authors - they need to be fed - and benefiting the rest of us - if we can't read the authors, they won't get fed. If Microsoft wants to continue working against fair use and a copyright regime that benefits more than large companies (see also the Zune), then that's fine. As for me, since the demo version of Office 2003 that came with my new laptop expired last month, I've been doing quite well with Google Docs. Now if only I could find a way to vote for saving fair use with my wallet like that.