I’ve been seeing lots of reactions to Microsoft’s attack on Google at the Association of American Publishers, and it isn’t pretty. (Here’s a link to the full text of Microsoft Assistant General Counsel Tom Rubin’s speech.)
For those of you who have been hiding under a rock, and don’t already know this, the AAP is suing Google for scanning books from libraries. Publishers insist on an opt-in approach, while Google insists that scanning and indexing is fair use, and that publishers can opt out, just like web sites do with robots.txt.
Rubin writes:
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.
Anyone who’s read what I’ve previously written on this subject knows that I believe that this is 180 degrees opposite from the truth. The search engine economy has led to a great outpouring of creativity, and new incentives undreamed of by ink-on-paper publishers. Google is offering publishers and authors a jump start in joining that new economy. What’s more, Google is using the very same copyright fair use exemption that they use to create their web search engine (and that all other web search engines rely on as well.)
Meanwhile, the truth is that publishers don’t actually own the rights to most of the works that they are supposedly protecting, or at least no longer know who owns them, and don’t have copies of the books to scan even if they were clear about the rights. Google’s creative approach solves a very hard problem for publishers and will create enormous new opportunities for authors.
Put another way, Google is offering a $200 million handout to publishers and authors, not stealing from them! Once all books are searchable, we will discover which of the 32 million out of print books now only in libraries are valuable, and publishers will be incentivized to clear the rights to those books and bring them back to life. If the AAP prevails in their lawsuit, only a small fraction of the available works will ever make it online.
What’s more, if Google is wrong that making a copy in order to create a search index is fair use, then the whole search engine economy comes tumbling down, since web search itself depends on the same fair use exemption.
As a publisher, I’m nervous and excited about the disruptive changes that Google Book Search could bring to the publishing ecosystem. It could be very good for my business, but as with the web itself, it will also bring new competition. And I’m sure that some publishers will fail to rise to the challenge, and will be outperformed by other publishers who are quicker to embrace the new book search economy.
But as someone who cares about the future of books, the future of knowledge dissemination, and the future of publishing, I am 100% clear that the opposition to Google Book Search by the AAP is nothing more than posturing by entrenched businesses afraid of disruption. Get a life, guys! If books don’t become part of the online search economy, they are doomed to eventual irrelevance. Publishers must reinvent themselves, embrace the future. And Microsoft loses a huge amount of credibility by pandering to the publisher position.
But OK, let’s assume that legal posturing is an acceptable part of business negotiation, that the publishers are merely doing good business to sue Google and see if they can get a favorable settlement, and that Microsoft legitimately sides with the publishers. But Rubin goes way beyond just siding with the publisher position, going into a full-on smear of YouTube, and Google by association:
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…
Google’s track record of protecting copyrights in other parts of its business is weak at best. Anyone who visits YouTube, which Google purchased last year, will immediately recognize that it follows a similar cavalier approach to copyright.
Google also encouraged the use of keywords and advertising text referring to illegal copies of music and movies….These are not the actions of a company that has the interests of copyright owners as one of its priorities.
This is the kind of mudslinging that has turned Americans off politics, and it’s beneath Microsoft to stoop to it. Anyone at all familiar with the issues knows how complex they are, and what a cheap shot it is to frame them this way. Microsoft is a great company facing great challenges. It should bring out the best in them, not the worst.
Danny Sullivan does a good job of analyzing each of the Microsoft arguments, including pointing to an amusing example of Microsoft running ads on google searches of the very sites that Rubin calls out as pirates. Danny is persuaded by a few of Microsoft’s points, but even he concludes:
Overall, I have to say it’s disappointing seeing Microsoft come out on an attack stance rather than be positive about what it is doing. Google deserves slams, and I wish they’d change to an opt-in policy for copyrighted books. But for me, with perspective, Microsoft comes across as someone trying to play catch-up and willing to be negative to do it. I don’t like that in political campaigns, and I guess I don’t like it any more in the search wars. But most important, it’s a dangerous game to play. The more Microsoft paints itself as some type of pure protector of copyright, the harder it will fall as people find examples where it fails to meet expectations.
Over on ipdemocracy.com, Cynthia Brumfield is much harsher:
“Although Microsoft’s attempt to exploit Google’s YouTube problems is understandable, it’s also slightly repulsive and reeks of desperation. The software titan is hoping to build itself up by tearing Google down, never a good long-term strategy for success.”
Don Dodge gets the gutsy blogger award, though, since he works at Microsoft but still wasn’t afraid to call a spade a spade! He wrote:
Oh boy, here we go. Microsoft attacks Google on copyright regarding their book scanning project, and then takes a swipe at YouTube as well. Really dumb move! What are these Microsoft lawyers thinking? Even if they are right, which is debatable, what reaction do they expect from the public at large? This strikes me as pandering to the Association of American Publishers where the Microsoft lawyer is speaking today….
The AAP filed suit against Google for copyright infringement 16 months ago, and it is still in the courts. What is to be gained by making these inflammatory comments? Be quiet and let the courts sort this out.
Public Relations and perceptions are affected by everything Microsoft says or does. It comes with the territory. Making inflammatory comments about a competitor is never a good idea. Right or wrong on the facts…the statements are bound to have unintended consequences.
There are always at least two sides to every legal argument. There are lots of scenarios where the law is not clear and that is why these things are argued in court. Case law clarifies the details and codifies the rules. Great, let the courts involved sort that out. Microsoft should stay focused on business and satisfying customers.
Amen. I hope Microsoft listens to Don Dodge, and that he doesn’t get in trouble over his thoughtful and balanced comments.