The Association of American Publishers no doubt welcomed Rubin's remarks, given that the organization sued Google in October 2005 for seeking, as AAP president Patricia Schroeder put it at the time, "to make millions of dollars by freeloading on the talent and property of authors and publishers" through its Book Search project.
"What path will we as a society choose in making the world's books and publications available online?" Rubin asked. "Will we choose a path that nourishes creativity and innovation over the long term and that preserves incentives for authors to offer their best works online? Or will we choose a path that encourages companies simply to 'take' the works of others, without any regard for copyright or the impact of their actions on authors and publishers, too?"
Rubin answered his question later in his speech. "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," he said.
At issue is Microsoft's approach to its Live Search Books project as compared to Google's Book Search. Microsoft, said Rubin, only scans books that are out of copyright or in the public domain. According to Rubin, the company asks for permission from publishers for works currently under copyright.
"Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop," he said.
Coincidentally, Google today announced a partnership with the Bavarian State Library to digitize more than a million public domain and out-of-print works in German as well as English, French, Italian, Latin, and Spanish.
In a statement, David Drummond, Google senior VP for corporate development and chief legal officer, offered a modest rebuttal. "The goal of search engines, and of products like Google Book Search and YouTube, is to help users find information from content producers of every size," he said. "We do this by complying with international copyright laws, and the result has been more exposure and in many cases more revenue for authors, publishers, and producers of content. In the publishing industry alone, we work with more than 10,000 partners around the world to make their works discoverable online, and in video, we recently added new partners, including BBC and NBA. We look forward to working with even more partners to make more content discoverable online."
A more forceful refutation of Rubin's position comes from Ed Black, president of the Computer & Communications Industry Association, an industry interest group in which both Google and Microsoft are members.
"While I normally avoid commenting on disputes between members, I cannot overlook Microsoft's unfortunate mischaracterization of copyright law," Black said in a statement. "Contrary to Microsoft's suggestion, every unauthorized use of a copyrighted work is not infringement. Highly transformative copies, such as those made by search engines like Google and Microsoft's own MSN, or those made by Microsoft's software programmers when reverse-engineering competitors' products, are fair use under copyright law. Microsoft would do well to consider that its own business depends on fair use before brushing aside that important doctrine."
"Copyright practice currently labors under an oppressive 'permission culture' in which every unauthorized use of a work is viewed as a potential violation of the law," Black added. "This distorted view of the law undermines access to information, is hostile to innovation, and most importantly, is not accurate. The copyright monopoly is a limited one, and it must stay that way if it is to continue to promote progress."
Don Dodge, director of business development for Microsoft's Emerging Business Team, in his blog called Rubin's speech a "really dumb move." While allowing that the legal issues mentioned remain unresolved, Dodge chastises Rubin for "pandering to the Association of American Publishers" and inviting bad publicity.
Rubin's most substantive slam, however, has less to do with copyright law than with business ethics.
"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," Rubin said. "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 Web sites dedicated to piracy and reportedly netted Google around $800,000 in advertising revenue from just four such pirate sites. These are not the actions of a company that has the interests of copyright owners as one of its priorities."
That may be, but Microsoft is supporting the market for questionable keywords -- search for "warez" on Google and the only sponsored result is paid for by none other than Microsoft. And searching for "warez" on Microsoft's Live Search returns eight sponsored links to sites that promise the ability to "download unlimited burnable MP3s, videos, movies, and more."