Most believed Associate General Counsel Thomas Rubin's speech before a book conference -- as well as his opinion piece in the Financial Times -- had a lot more to do with Microsoft's vicious competition with Google than about solid legal arguments.
"Clearly they're in a pitched battle," said Mark Flagel, a partner with Latham & Watkins in Los Angeles. "Microsoft is doing everything it can to pick its fights. This is a popular one."
In a speech before the Association of American Publishers, Rubin accused Google of systematically violating copyright law. Google's Book Search and YouTube video sites are the perpetrators of these injustices, according to Rubin.
"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's speech read. "Anyone who visits YouTube ... will immediately recognize that it follows a similar cavalier approach to copyright."
Google disputes that it violates any copyright laws. Its book search site allows people to search texts of many copyrighted books, the company maintains, but if a copyright owner has not consented, the searcher will only see a snippet of the copyrighted book.
That's a critical distinction for legal analysts. It's one thing, they say, to offer a search of a book's text and quite another to make an entire copyrighted book available, without permission, for copying -- which Google maintains it does not do. Google also claims it removes copyrighted songs and video from YouTube any time it is notified of infringement.
"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," David Drummond, Google's chief legal officer, said in a statement in response to Rubin's speech. "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."
Rubin cast Microsoft's own book search as superior on copyright treatment. Experts didn't find this a surprising move given that Google, with its recent online word processing and spreadsheet offerings, has begun to encroach on Microsoft's core software businesses.
Microsoft has reacted to Google's success in recent years by beefing up its search capabilities, but may wind up harming itself with Rubin's arguments. After all, a lot of the law is unsettled when it comes to copyright protection in the digital age, said Eric Goldman, director of Santa Clara University School of Law's High Tech Law Institute.
"It's a very dangerous game for Microsoft to go out and push a major player in this space on copyright issues," Goldman said. "It's entirely possible that if they succeed in painting Google into a box, they may have inflicted a wound on themselves."
Courts are still grappling with whether Google's approach to books constitutes "fair use" under copyright law, Flagel said. Judges are also weighing whether Google should be held responsible for providing information, in search results for instance, about businesses that infringe on other people's copyrights.
The 9th Circuit U.S. Court of Appeals is expected to rule on three related cases on that subject by the end of the summer, said Fred Von Lohmann, a staff attorney for the Electronic Frontier Foundation in San Francisco.
Von Lohmann said Rubin's speech, which played up the fact that Microsoft asks copyright holders' permission before using their works, highlighted a way of thinking that he finds highly disturbing. Seeking permission from movie studios and publishing houses before using their material for a new innovation might be something Microsoft -- with its resources -- can do easily, but small-time innovators can't, Von Lohmann said.
"If you're a startup in a garage, is Hollywood going to return your calls if you're trying to develop something like YouTube?" he said. "Do you think they would have been able to launch a company if they had to negotiate permission?"
He continued: "The question here is not about do you like Google better or Microsoft. The question is, do you want a world where you can innovate first, or you have to hire lawyers and ask Hollywood's permission."