03/18/2010 05:12 am ET | Updated May 25, 2011

An Epic Internet Copyright Battle on the Horizon? Microsoft and News Corp. vs. Google, Maybe

The internet is just beginning to buzz today regarding news that Microsoft has reportedly approached Rupert Murdoch's News Corp. to discuss a deal whereby News Corp. would "delist" its websites from Google (and, most likely, other search engines that are not using Microsoft's Bing search engine) in exchange for cash from Microsoft.

The Financial Times /> describes this as "offer[ing] a ray of light to the newspaper industry." The popular liberal blogger Atrios disagrees, and cuts to the heart of the story with the following two sentences />: "Basically Microsoft's gonna pay people for the sole right to index their content. I'm guessing that aside from being a waste of money, I'm pretty sure 'I won't index you if you ask me politely not to' is more of a courtesy than something arising out of genuine copyright claim fears." As Atrios succinctly notes, there are basically two issues here: (1) Would such a deal be wise from a business perspective? and (2) Could Microsoft and News Corp. legally enforce such a deal against Google? I leave it to others more qualified than I to comment on the business wisdom of such a deal. Although Atrios proves that you don't need to be an intellectual property lawyer to spot and comment on the copyright issues here, it probably won't hurt to hear such a lawyer's initial thoughts on some of the legal issues raised. So, here goes . . .

In a nutshell, Google and other modern search engines work like this - they constantly "crawl" through websites and copy all the text from those sites onto their own servers. Then, when you enter search terms into Google, Google searches its own servers, which contain copies of almost all public websites. Google then returns a list of results pointing you to certain websites with snippets of relevant copied portions of those websites. And that's the issue: Google is copying other people's content. Copyright law forbids the unauthorized copying of others' content (of course, there are some nuances here as to what type of "content" is protected by copyright law - i.e., it must be "original" content - but set those nuances aside because they are not directly relevant to the issue here). So if News Corp. politely asks Google to stop copying its content, and Google ignores the request, Google will be engaging in the unauthorized copying of News Corp.'s content. And that folks is unquestionably a prima facie case of copyright infringement.

Again, however, you don't need to be an intellectual property lawyer to know that we are not at the end of the analysis. You see, there is this little doctrine in copyright law called "fair use." That doctrine provides that the copying of content for purposes such as criticism, comment, news reporting, teaching, scholarship or research is "fair" and is not infringement. The fair use analysis is case-specific and notoriously hard to predict - courts generally consider several factors in determining whether there is a fair use, including the purpose and character of the work, the amount of use, and the effect upon the market for the copyrighted work. So, would Google's copying be a fair use? On that question, there is no clear answer. And a lot of lawyers may get rich because of it.

Based on a line of cases where appellate courts have held that search engines' copying of images for indexing and search purposes is fair use /,,_Inc.>, I would very tentatively predict that Google would come out on top if this issue actually gets litigated. But if this gets litigated, expect a big-time battle over every issue. For example, one of the most important issues will be who files a lawsuit first? Why does that matter? Because the party that files first generally gets to pick where they file, i.e., in which federal district court. And the fair use cases I have in mind are not from the Supreme Court; they are from the Ninth Circuit - the intermediate federal appeals court on the West Coast. Thus, those cases are only binding on the courts within the Ninth Circuit. Thus, Microsoft and News Corp. will want to file outside of the Ninth Circuit (in New York, for example, where News Corp. is headquartered). So, the first thing we may expect in any legal battle will be what lawyers call a "race to the courthouse" where Google will try to file first in the Ninth Circuit. Even if the case gets decided in the Ninth Circuit, however, Microsoft and News Corp. will still have some good arguments to get around the cases I have in mind. And even if they lose in the trial court and then in the Ninth Circuit, don't expect them to give up. There is still the Supreme Court, and given the importance of these issues, I would expect that the Justices would likely give strong consideration to taking the case.

In short, if Microsoft and News Corp. go forward with a deal whereby News Corp. demands that Google stop indexing its websites, don't be surprised if it leads to one of the most important copyright lawsuits in history. And don't be surprised if the ultimate outcome of such a lawsuit shapes the future of internet search.