Marvin Ammori

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.

In his Judge, Jury & Executioner segment on yesterday’s show, Colbert discussed Supap Kirtsaeng v. Wiley & Sons, a case recently argued before the U.S. Supreme Court addressing whether the first sale doctrine applies to copyrighted goods made and purchased abroad but later imported into the United States. The segment referenced a piece in The Atlantic written by Marvin, discussing the broader implications of the case. The Court will issue its decision sometime before June 2013.

Bloomberg reports today that the FTC is reconsidering some aspects of its ongoing antitrust investigation of Google. According to the story, agency officials are not certain of the legal strength of a claim that Google preferences its own products and services over those of its competitors. In addition to the legal hurdle, the officials are trying to figure out if such preferencing actually provides “benefits to consumers” that “outweigh any harm suffered by rivals.”

If this story is accurate, it’s a good sign. Companies like Microsoft, Yelp, Nextag, Foundem, and others have aggressively made their case, flawed as I think it is, not only to the FTC, but also to Congress and in academic and legal circles. The FTC has taken their claims seriously and investigated them. But these competitors have leveled many allegations that are either factually disputed or likely to benefit consumers and could not even amount to a claim under antitrust law.

If the FTC ultimately decides not to advance some claims, it is not for lack of taking allegations seriously. Google’s competitors have had a lot of time to make their case. Having now put it forward, they have revealed just how weak it really is.

Disclosure: As we always note, Google is a client of the firm. We have been retained by the company to advise on these issues. But here I do not speak for the company, only for myself.

The Search Engine Marketing Professional Organization (SEMPO), a trade association of search and digital marketers, wrote a letter to the FTC yesterday, suggesting that the agency’s review of search transparency practices should not be limited to Google alone but apply to the entire search industry. A full review would promote a “level playing field” for the search market, SEMPO wrote, further noting:

“If the present FTC guidelines on paid placements are being widely flouted, or if certain industry segments – such as vertical search sites – harbor particular practices that mislead consumers, result in fraud, or offer unfair competitive advantage to their commercial customers, the public and the business community deserve to know. “

SearchEngineWatch’s Danny Sullivan made a similar case to the FTC back in June, and we agreed, writing:

In recent years, the FTC has undertaken public workshops to analyze issues — including privacy and the future of the news industry — in greater depth and gather public comment. It ought to do the same with search engine labeling and transparency. The search industry has changed in the past decade and continues to change with integrated results, mobile results, specialized shopping, real estate and local search engines, and voice-activated searches. And perhaps the FTC should be examining these search practices not from the viewpoint of the Competition Bureau but from the viewpoint of the Consumer Protection Bureau.

The Wilson Center is hosting a panel discussion at 12:30 Eastern on cyber threats facing the country, the debates (and stalemate) in Washington over how to respond to those threats, and how best to increase public awareness of and participation in these debates. Panelists include the Wilson Center’s Director Jane Harman, Head of US Cyber Command Gen. Keith Alexander, Sen. Susan Collins (R-ME), and ACLU Executive Director Anthony Romero. You can watch the event live here.