In a high-profile speech and an op-ed in the Financial Times, Microsoft has gone out of its way to attack Google, claiming that Google's Library Project "systematically violates copyright" and that YouTube "knowingly tolerates piracy."

There is something more important here than just the latest spat between these industry titans: the proper relationship between copyright and innovation. In these screeds against Google, Microsoft comes out in favor of "collaboration" -- in other words, asking permission of affected copyright owners before innovating. It attacks Google for "unilateralism" -- in other words, innovating without asking permission first. Microsoft frames the question this way: "should business models that are built on the backs of others' intellectual property choose a path that respects IP, or a path that devalues it?"

Of course, that's a loaded question, as it assumes that "respecting IP" is equivalent to "asking permission before innovating." Let's consider all the businesses that are, to a lesser or greater extent, built on the backs of copyrighted content:

  • MP3 players, iPods
  • televisions and TV antennas
  • photocopiers
  • stereos, speakers, headphones, CD players
  • audio cassette recorders
  • TiVo, VCRs
  • public libraries
  • reading glasses
  • art gallery audio tours

The common thread between all of them? None of these businesses asked permission from, or paid a penny in royalties to, copyright owners. In several of these cases, there had to be lawsuits in order to defend that principle, just as Google is doing now in several of its lawsuits.

And it's lucky for Microsoft that prior innovators were willing to go out on a limb and fight for the freedom to innovate without asking permission first -- otherwise Microsoft would have had to ask permission from all the world's websites before it launched Internet Explorer (built on the backs of all the websites, without asking them permission, don't you know).

Of course, there's nothing wrong with voluntarily undertaking to do more than copyright law requires, as Microsoft has with its book search product, with the Zune, and with its proposed video service. But it's something else altogether to say that "respect for IP" requires such a thing. In many cases (such as Google's Library Print Project), it does not.

Remember, if Google wins the Google Library Project lawsuits, the fair use principle it establishes will benefit everyone, including those who want to scan books to compete with Google. Microsoft's "collaborate" principle, in contrast, will benefit only those companies who are big enough to get big copyright owners to answer their calls -- a world where Microsoft will have an unfair advantage.

So kudos to Google for standing up for fair use. And shame on Microsoft for suggesting that only those who "collaborate" are entitled to innovate.

UPDATE: Santa Clara Law School Professor Eric Goldman reminds me of another business built on other people's copyrighted works: operating system software like Windows!

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