Don Marti

Sun 23 Nov 2008 09:40:50 AM PST

Google pays Google's legal bills

Fred von Lohmann writes, in Google is Done Paying Silicon Valley's Legal Bills, "Well, Google just put the Valley on notice that the free ride is over, which means more legal burdens for smaller technology companies that previously depended on Google clearing a path for them."

But Google never was an all-purpose legal sugar daddy for anyone.

Google, like most sites that distribute works written by other people, chooses to take advantage of the Safe Harbor provision of the DMCA whenever possible, rather than taking a chance and ignoring the shakiest of the takedown letters. This year, takedowns made the news. The McCain campaign's web video ads have been repeatedly either knocked off YouTube.

We faced the same problem in 2002, when a Scientology lawyer sent an overreaching takedown against Google linking to the anti-Scientology domain in search results.

If you look at some of the mainstream media coverage of that Scientology case, it sounds like Google was required to obey the takedown letter. That's not true. Google could have chosen to ignore the letter. In that case, though, the company would have lost its right to use the DMCA's Safe Harbor and would have been at greater risk of an infringement suit from the letter sender.

But Google, like a sensible company, works in its own interest and always has. So it chooses Safe Harbor. On a much larger scale, Google settled a lawsuit from Agence France-Presse over Google News headlines, excerpts, and links. Blogger Mac Slocum wrote, "Terms of the deal weren't announced, but the fact that there's a deal at all misses the point of Google News." The company didn't take a big chance to make a Fair Use precedent. It did what was good for Google.

Prof. Nicholas G. Carr, in The Google Enigma, applies Joel Spolsky's useful "Commoditize the complement" argument to Google. Google isn't a whole new kind of company, and it isn't unusually non-evil. It's a company that just happens to have a lot of complements, and it makes sense to commoditize your complements if you can do it cheaply enough.

"For Google, literally everything that happens on the Internet is a complement to its main business. The more things that people and companies do online, the more ads they see and the more money Google makes," Carr writes. But there are still some areas where old-fashioned lock-in makes more sense than just strewing goodwill everywhere. Google settled with Yahoo instead of fighting a dubious search ad patent.

When Google can can get what looks like a measurable advantage from a deal with a known, large partner, it will make the deal and leave the startups and the EFFistas to make their own precedents.

(Disclaimer: I have participated in a protest against Google over the issue and also received major sponsorship funding from Google for FreedomHEC, the Linux device driver unconference. Don't worry, I'll put all this stuff on my Pirate Czar disclosure form when they get back to me about that.)