You decide you want to copy a book so you ask the copyright holder first. Seems pretty basic, but not to some. I have previously praised the publishing industry for its resistance to having libraries' worth of books copied without their consent, and I have praised Microsoft for seeking permission first before copying any copyrighted works. Of course, Microsoft produces copyrighted works of its own, and its associate general counsel for copyright, Thomas Rubin, pointed out in a speech to the Association of American Publishers that Microsoft's chief rival in book search, Google, "has not a single registration in the Copyright Office’s database."

I don't want to get in between the heated competition of these two tech titans, both of whom are bringing us new innovations. Rubin's speech, however, did echo many of my concerns with Google's Book Search service.

After criticizing companies that "make money solely on the backs of other people’s content," he raised this:

So the question we need to ask ourselves is: What path will we as a society choose in making the world’s books and publications available online? 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?

MS has chosen the latter, he said. It is copying a great deal of out-of-copyright books, but those in copyright need the consent of the copyright owner. It has its own search service that can have its parameters controlled by copyright owners, or MS software can run on a publisher's own site.

He said three principles are critical in this move to place searchable books online:

The first principle is that new services that expand online access to content should be encouraged. The second principle is that those new services must respect the legitimate interests of copyright holders; put conversely, we must forcefully reject any business model that is based on the systematic infringement of copyrights. The third principle is that even 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.

And how did Rubin tie this in with Google?

Google’s chosen path would no doubt allow it to make more books searchable online more quickly and more cheaply than others, and in the short term this will benefit Google and its users. But the 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. 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. This violates both the second and third principles.

Rubin outlined his own tradition of supporting fair use, but said Google's service was not fair use: "So, what we really have here are two fundamentally different paths. Google takes the position that everything may be freely copied unless the copyright owner notifies Google and tells it to stop. Microsoft and most other companies, by contrast, take the position that they should get the copyright owner’s consent before they copy. The Copyright Act, in our view, supports this approach. It’s hard to see any justification for exempting Google from its requirements."

Rubin raised what I think is one of the most powerful arguments against allowing Google to have this exemption. Google's informal motto of don't do evil might suggest that if one company were to be given a pass, if one company could be trusted with this exemption from copyright law, it might be Google. But can we under the law make an exception for one company? And what of others? Here's Rubin again.

Google argues that authors and publishers should simply notify Google if they want to preserve their rights in their works. But what if, as is inevitable, other companies around the world start taking the same approach? Should copyright owners be obligated to track down everyone engaging in unauthorized copying in order to preserve their exclusive rights in their works? Presumably, the desire to preserve these rights is why they asserted copyright in the first place. This approach would be absolutely unworkable in practice, which is probably why Congress in enacting the Copyright Act placed the burden on those who want to copy to get the express consent of the copyright owner, rather than the other way around.

Look at all of the authors who posted to my entry on eSnips. They had books being traded illegally on that site, but hadn't heard of it until I blogged on it. To what extent can we expect authors to monitor the globe for uses they don't like and then have them opt out?

There's much more in the speech worth reading. He points out what consumer expectations are and urges publishers to respect those expectations. He endorses orphan works legislation. All of it is good, but what I walked away with was a sense that I am not alone in feeeling that the Copyright Act was not constructed to be an opt-out system, that no one company should be allowed to operate above the law (regardless of how noble their professed purpose) and that the market is already providing these search services in ways that respect copyright holders' interests.