NEW YORK, NY — In prepared remarks delivered at the annual meeting of the Association of American Publishers (AAP) on Tuesday, Microsoft attorney Thomas C. Rubin took shots at Google’s Book Search project, asserting that Google’s approach violates copyright, and constitutes widespread infringement on the rights of publishers and authors.“The stated goal of Google’s Book Search project is to make a copy of every book ever published and bring it within Google’s vast database of indexed content,” Rubin stated Monday. “While Google says that it doesn’t currently intend to place ads next to book search results, Google’s broader business model is straightforward; attract as many users as possible to its site by providing what it considers to be ‘free’ content, then monetize that content by selling ads.”

Quoting AAP president Pat Schroeder, Rubin added that Schroeder said it best when she commented that Google had “a hell of a business model – they’re going to take everything you create, for free, and sell advertising around it.”

In his remarks, Rubin argued for three guiding principles to solve the problem of “expanding access to online content… in a way that respects intellectual property rights.”
First, “new services that expand online access to content should be encouraged;” second, “those new services must respect the legitimate interests of copyright holders;” and third, “as we follow the first two principles, we must all work together to find consumer-friendly and cost-effective solutions to our shared goal of expanding online access to copyrighted and public-domain works.”

While lauding his own company’s “Live Search Academic” and “Live Search Books” projects as conducted in conformity with the three guiding principles posited in his remarks, Rubin argued that Google’s Book Search violates all three principles.

Rubin asserted that in pursuit of its goals for Book Search, Google not only violated copyright, but mislead its partners in the project, as well. Noting that Google had persuaded several libraries to provide “unfettered access to their collections, both copyrighted and public domain works,” and “entered into agreements with several publishers to acquire rights to certain of their copyrighted books,” Rubin then asserted that Google later “basically turned its back on its partners.”

“Concocting a novel ‘fair use’ theory, Google bestowed upon itself the unilateral right to make entire copies of copyrighted books not covered by these publisher agreements without first obtaining the copyright holder’s permission,” Rubin said.

Conceding that Google’s approach to online book search “would no doubt allow it to make more books searchable online more quickly and more cheaply than others,” Rubin said the real question is “at what long-term cost?”

“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,” Rubin said. “In doing so, it undermines critical incentives to create. This violates the second principle I mentioned. Google has also undertaken this path without any attempt to reach an agreement with affected publishers and authors before engaging in copying.”

“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,” wrote David Drummond, senior vice president and chief legal officer for Google, in response to Rubin’s remarks. “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.”

Drummond also noted that “in the publishing industry alone, we work with more than 10,000 partners around the world to make their works discoverable online.”

Ed Black, president of the Computer & Communications Industry Association, also spoke in Google’s defense, and asserted that Rubin’s speech was a “mischaracterization of copyright law.”

“Contrary to Microsoft’s suggestion, every unauthorized use of a copyrighted work is not infringement,” said Black, according to Vnunet.com. Black observed that Microsoft’s own search functions cache and index web pages, also arguably a form of copyright violation.

“Microsoft would do well to consider that its own business depends on fair use before brushing aside that important doctrine,” Black said.