Prof. Peter S. Menell, UC-Berkeley School of Law
Feb. 24, 2009

For much of its first decade of meteoric growth, Google built its Internet search engine business without the apparent need or desire to license copyrighted content.  Relying on the DMCA’s online service provider safe harbors, the fair use doctrine, and implied consent, Google 1.0 blissfully indexed the Internet’s text and served up the most relevant Internet search results without running afoul of copyright law.

But as Google sought to expand beyond its text search engine business, it became the online equivalent of litigation flypaper.  Google 2.0 services – such as image search, book search, and video hosting (YouTube) – placed Google squarely in the cross-hairs of major professional content enterprises.  During the early years of Google 2.0, the company maintained that it was not required to license content to operate these services.  Alongside Google’s much publicized motto of “Do No Evil” was the unstated motto of “License No Professional Content.”

In many respects, I would defend (and have defended) Google’s ability to operate these services without the permission of copyright owners.  Their image search service provides tremendous value to users and it is far from clear that it is causing significant harm to copyright owners.  In any case, it is unclear whether there are cost-effective means for reducing those adverse effects without greatly compromising the great functionality that Google is providing.

The Central District of California will be sorting that out in ongoing litigation.  (Perfect 10 v. Google).  I have previously defended Google’s book search initiative as consonant with the principles undergirding copyright law.  See “Knowledge Access and Preservation Policy in the Digital Age,” 44 Houston Law Review 1013 (2007).  I believe that there is ample berth for Google and others to host “User Generated Content,” but with appropriate safeguards against distribution of unauthorized copyrighted content.

As the technological means for limiting Google’s role in disseminating unauthorized content – such as content identification – have developed, the pressure on Google to adapt its services has grown.  The first major shift in Google’s worldview occurred after the filing of Viacom’s lawsuit against YouTube in March 2007.  While maintaining that YouTube was not legally required to adapt YouTube’s operations, Google nonetheless implemented a content identification system that has substantially reduced its adverse impacts upon copyright owners.

This initiative has led Google to work constructively with content owners in developing and deploying content identification technology.  Perhaps more significantly, Google has come to use these tools to build licensing relationships with major copyright owners in the music, film, and television industries.

The second major shift occurred last fall with the announcement of the Google Book Search settlement with major publishers and authors.  This historic agreement promises to erect valuable digital infrastructure for expanding access to some of the best content available while establishing a registry and ad revenue split for rewarding authors and publishers responsible for such content.

While I believe that Google (and others) were legally permitted to index and provide limited snippet search results for in-copyright books, the settlement will greatly expand access to such works and promote preservation of books while hastening authors’ and publishers’ embrace of the digital platform.   There are obviously important details – relating to orphan works, administration, and competition in book search technology – that remain to be resolved, but neither Rome nor ASCAP were built in a day.

These shifts usher in Google 3.0 – a cautious, but very real, recognition by Google of the advantages from partnership between leading digital infrastructure providers and creators of valuable content.   Just as radio and television needed quality content to achieve their promise, users of the Internet will also greatly benefit from constructive engagement between technology developers and content creators.

For society to flourish, it is essential that the technology and content sectors develop the full symbiotic potential.  Steve Jobs set a powerful example with the development of the iTunes Music Store.  It is greatly encouraging to see Google building the relationships and infrastructure for synergy with professional content developers.