James Boyle via the FT: Google and the rocks in the web's safe harbours. He's exploring the Microsoft accusations against Google and suggests that when thinking about IP and new technologies we need a deeper level of analysis and public debate than 'stop thief' v 'that would make Google illegal'.
"When used in policy debate, the words "Microsoft" and "Google" operate to make people stupid. Half the population seems to assume Google's position will exemplify the public interest, while Microsoft is an evil empire bent on total control of our minds. (The satirical paper, The Onion, explores this hilariously in an article where a Google-planned genocide is said merely to raise "some potential privacy concerns".) This benign image may explain the muted criticism of Google's intellectual property missteps - the restrictive deals Google has struck with university libraries, for example, which prevent large-scale access by search engines or digital library projects even where public domain works are involved.
In many cases, Google's self-interest has aligned with the public interest. "That would make Google illegal," is the most effective argument against expansive property claims. What about YouTube? On a commonsense level, Viacom's arguments will persuade many. It is hard to portray Google as a helpless start-up. But if we end up narrowing defences to reach YouTube's deep pockets, we might make the next Google less likely to appear. Safe harbours will acquire rocks and shoals. Conclusion? In intellectual property, the cry "Stop! Thief!" is more complex than it seems. Ask Microsoft's lawyers."