My Politico Piece on Copyright, Fair Use, and Competition

Today, Politico ran an op-ed I wrote about the importance of ensuring fair use while enforcing competition policy. At the moment, the FTC is investigating Google for antitrust issues. The allegations against Google are many, and often changing, but I focus on one particularly problematic allegation: that Google is acting anticompetitively through quoting competitors’ content, even though Google relies on the fair use exemption in copyright law.

Of all the allegations leveled by Google’s competitors, I think this one might be the most dangerous argument for the broader Internet. It could provide copyright-like protections (a new “ancillary” copyright) that would expand the already-inflated copyright protections that can restrain users’ ability to access, find, and share information.

Here is a part of the Politico op-ed. It’s run in “Politico Pro,” meaning it’s available only to some readers (premium users). I believe in a few days, it will be removed from the paywall and available to all readers. Here is an excerpt (thanks to the fair use doctrine).

Opinion: The FTC and Google’s supposedly anti-competitive quoting

By Marvin Ammori

11/29/12 5:24 AM EST

Last month, a lawsuit over 10 words made headlines. The estate of author William Faulkner filed a copyright infringement suit against Sony Pictures because Sony’s 2011 Woody Allen film, “Midnight in Paris,” used a well-known, 10-word quote from a 1950 Faulkner novel. Coming less than a year after Wikipedia and Reddit blacked out their sites to protest controversial copyright legislation known as SOPA, Time magazine called this suit another example of copyright “getting out of control.”

Granting Faulkner’s estate these rights would harm creativity in film, but an antitrust agency in Washington may inflict even more damage to the Internet through another theory providing legal protection for short quotes.

Since June of last year, the Federal Trade Commission has been investigating Google based on allegations that the company’s actions are anticompetitive. The Financial Times reported last week that the FTC is considering one theory that could run straight into the buzzsaw of copyright law, as well as the First Amendment doctrine enabling us to quote authors. At the same time, it would likely ensure that the FTC and Google lock into years of litigation.

The agency is reportedly reviewing how Google crawls and displays short snippets of content from review websites. The crux of the theory is that Google displayed review snippets from Yelp and TripAdvisor and in Google Places, its local search tool.

Politico also ran an opposing op-ed from FairSearch, the coalition of companies, led by Microsoft, seeking the antitrust investigation against Google.

As most readers of this blog know already, my law firm and I do some work for Google, but I don’t speak for Google, only for myself.

Update – 2:55 PM

If you want to learn more about fair use, see this great explanation by Mike Masnick at Techdirt.

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