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
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
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.