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Google Attacked Over Copyright Infringement

If content is king, there's bitter dissention brewing in the online kingdom, with Microsoft launching later this morning a new front in its assault against Google .

Microsoft's associate general counsel Thomas Rubin will deliver a blistering attack on Google to the American Association of Publishers at a meeting in New York City later this morning. His comments, first reported yesterday by the Financial Times which got an advance copy of the speech (nice work!), shines a bright light on the legal elephant in Google's room: copyright infringement.

Google first ran afoul of publishers and content providers when it began its ambitious bookscanning project which seeks to digitize millions of books in public and university libraries all over the world. Google argues that by including snippets of the books and their bibliographies in search results, the company can provide an amazingly valuable resource to millions of web surfers. But the Authors Guild and five major book publishers sued Google for copyright infringement complaining the company was essentially co-opting protected material and profiting from it by selling advertising against material it doesn't own.

Google's chief legal officer David Drummond tells Reuters today: "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." And the company says it has an "opt out" policy that takes down protected content when content providers ask the company to do so.

That's all on the publishing side. A parallel controversy is brewing now with Google's acquisition of YouTube. Some content providers, including Viacom in its much-publicized attacks on Google, say YouTube is a copyright infringer on a massive scale.

So, that's a long-winded way of setting the stage for Thomas Rubin's comments later today. He'll reportedly say Google has a "cavalier approach to copyright," that the company "systematically violates copyright and deprives authors and publishers of an important avenue for monetizing their works." He'll also say that the company is "actively encouraging" advertisers to use keywords that will link their content to pirated software sites and copyright-protected materials, including those from Microsoft which he'll say has "much in common" with book publishers.

From the beginning, I've always wondered how Google could essentially co-opt published, copyrighted books and load them onto its website without paying anyone for the material. I understand the doctrine behind "fair-use," but it seems like Google is simply blowing through that concept and steamrolling ahead with its own ideas of what's proper and what's not. Likewise, YouTube seems to be a copyright pirate's dream come true! Load video onto a site and make it available to whoever wants to watch it. I guess that's fine if the people loading the videos aren't making money from it, but YouTube the site -- and now Google its parent -- sells advertising against that copyrighted material. Amazing to me!

Edward Gray, Jr. is a copyright attorney at Morrison & Foerster LLP who tells me today that that Google's approach to copyright issues "is closer to the line than is wise." He says the company's willingness to litigate such issues would be "unthinkable" for business that could not afford the litigation risk.

He has some extremely thoughtful remarks on the subject. Here's a sample:

"Copyright litigation over new technology is an old story. Since the invention of the player piano, technologies that change the economics of the status quo have created controversy. It is extremely ironic that Microsoft is now taking up the cudgel for book publishers. It is well-known that Microsoft and the rest of the software industry have done tremendous damage to book publishing economics by changing the distribution model from all printing to a combination of printing and electronic dissemination. Of course, these changes also created huge benefits for the public including lower costs for many kinds of publications. One must wonder if the growing business competition between Google and Microsoft affects Microsoft's view of these copyright issues. The copyright laws have always sought to balance the incentives the law provides to authors and publishers with the public interest. It remains to be seen if the new technology being developed by Google will provide benefits to the public that will arguably offset the suspected impact of such technology on the bottom lines of publisher and authors."

Google's stance is clear: its approach to copyright law is helping rather than hurting content providers. And the argument has long been made that technology is simply outpacing the law; that copyright laws need to catch up. Which really isn't necessarily the case. You either own the material or you don't. And if you don't, you license it. But Google's approach is more about asking forgiveness rather than permission. Which puts the onus on publishers. Strange. In other words, walk into Google's headquarters in Mountain View, California and steal some office furniture. You're not putting the company out of business, or taking ALL furniture. Just some of it. If Google doesn't notice, or complain, I guess you'll be the proud new owner of some Google office furniture.

Or, maybe you'll just be "sharing" it.

Questions? Comments? TechCheck@cnbc.com

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