Larry Lessig, unsurprisingly, has an opinion on Microsoft's criticism of Google's lack of respect for copyright.
"Google’s “Book Search service” aims to provide access to three kinds of published works: (1) works in the public domain, (2) works in copyright and in print, and (3) works in copyright but no longer in print. As some of you may recall from the presentation I made a while ago, about 16% of books are in category (1); 9% of books are in category (2), and 75% of books are in category (3).
With respect to categories (1) and (2), Google is “respect[ing] copyright” just as “we at Microsoft are doing it.” With respect to category (1), that “respect” means no permission needed. With respect to (2), that means deals with the publishers whose works are made available — deals which give enhanced access over the default “snippet access.”
So that leaves category (3) — the 75% of works presumptively under copyright, but no longer in print. How do you “respect” copyright with respect to those works?
Well, Microsoft “respects” these copyright holders by not providing any access to their works. Google “respects” these copyright holders by providing “snippet access” — just enough to see a sentence or two around the words you’re searching for, and then links to actually get the book (either at a library, or from a book seller).
This may just be my own vanity, but I suspect that more copyright holders of books no longer in print would like Google’s kind of respect over Microsoft’s. But in any case, it is not true to say that Google could have provided “its Book Search service” in the way that “we at Microsoft are doing it.” If asking first is always required, then because of the insanely inefficient system of property that we call copyright — inefficient again because the government has designed it so that there’s no simple way to know who owns what, the very essence of a property system — 75% of books could not be within a digital view of our past. "