[A2k] James Boyle in the Financial Times: Google and the rocks in the web's safe harbours

[Thiru Balasubramaniam]

http://www.ft.com/cms/s/01996d82-d365-11db-829f-000b5df10621.html

Google and the rocks in the web's safe harbours

By James Boyle

Published: March 16 2007 02:00 | Last updated: March 16 2007 02:00

Microsoft executives recently announced that, unlike Google, they
respected intellectual property rights.

Google's crime? Digitising books to make them searchable, relying
partly on a "fair use" defence to claimed copyright infringement. Also,
Microsoft faulted Google for buying YouTube, saying that site was
dependent on copyright infringement for its value. Google denies it,
saying that much of the material is user-generated content or
privileged fair use, while the remainder is covered by a legal "safe
harbour" for sites that allow individuals to upload material at will
and comply with "take-down" notices sent by copyright owners. Viacom
was unconvinced. It has just sued YouTube for $1bn (=A3516m). Yet
Microsoft was also in the news because a federal jury last month handed
down a $1.52bn damage judgment against it for patent infringement. Does
Microsoft scoff at intellectual property law too, then? It denies
liability, saying the decision could affect hundreds of other companies
and prevent innovation.

When we are dealing with intellectual property, how do we know who is a
trespasser and who is a greedy landowner trying to enclose the public
right of way? First lesson, analogies to physical property are
dangerous. Most of these disputes are about whether a new market,
enabled by technology, should lie inside or outside the scope of the
artificial monopoly conferred by the intellectual property right.
Because these rights are created for a purpose - to foster and
disseminate science, innovation and culture - there are inevitable
"should" questions involved. Should copyright make it illegal for a
search engine to index my book (which requires making a copy of it) if
only a small fragment is available to a searcher and publishers can
request removal? Google has a very good argument that copyright should
not and does not make that illegal.

But what about YouTube? Because YouTube gets advertising revenues from
people who come to the site to see videos - licit and illicit - Viacom
wants an interpretation of the safe harbour that in effect puts the
burden on YouTube constantly to police the system for potentially
infringing works, rather than simply responding to individual requests.
Given the resources available to YouTube and the $1.6bn Google paid for
it, that seems pretty reasonable at first. Yet what happens when such a
rule is applied to every repository on the internet?

Google's defenders would counter that the safe harbour was itself the
result of a legislative compromise with content companies, giving them
new rights, but preserving immunities so that the next disruptive
technology would not be strangled at birth by established industries.
As the University of Michigan's Jessica Litman notes, lots of
technologies have developed this way - from the recording industry
itself to radio, jukeboxes and the VCR. Each profited from existing
content, transformed the marketplace and did so in a legal limbo, where
it was not clear who was the trespasser and who was the guardian of the
public domain. Here, vagueness in property lines might have been a
positive thing, forcing both sides to compromise.

When used in policy debate, the words "Microsoft" and "Google" operate
to make people stupid. Half the population seems to assume Google's
position will exemplify the public interest, while Microsoft is an evil
empire bent on total control of our minds. (The satirical paper, The
Onion, explores this hilariously in an article where a Google-planned
genocide is said merely to raise "some potential privacy concerns".)
This benign image may explain the muted criticism of Google's
intellectual property missteps - the restrictive deals Google has
struck with university libraries, for example, which prevent
large-scale access by search engines or digital library projects even
where public domain works are involved.

In many cases, Google's self-interest has aligned with the public
interest. "That would make Google illegal," is the most effective
argument against expansive property claims. What about YouTube? On a
commonsense level, Viacom's arguments will persuade many. It is hard to
portray Google as a helpless start-up. But if we end up narrowing
defences to reach YouTube's deep pockets, we might make the next Google
less likely to appear. Safe harbours will acquire rocks and shoals.
Conclusion? In intellectual property, the cry "Stop! Thief!" is more
complex than it seems. Ask Microsoft's lawyers.

The writer is professor of law at Duke Law School, a co-founder of the
Center for the Study of the Public Domain and a board member of
Creative Commons.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org