Microsoft tars Google with profiting off pirates

Microsoft Tuesday said that reports published last month claiming that Google profited from sites pimping pirated movies and software show why copyright holders shouldn't trust the search company.

In a speech before the Association of American Publishers (AAP) in New York Tuesday, Thomas Rubin, a Microsoft associate general counsel, argued that while his company's Live Search Books project honors copyright protection, Google's Book Search does not.

"In essence, Google is saying to you and to other copyright owners: 'Trust us -- you're protected. We'll keep the digital copies secure, we'll only show snippets, we won't harm you, we'll promote you,' " said Rubin. "But Google's track record of protecting copyrights in other parts of its business is weak at best."

As an example, Rubin cited a February dust-up between several media firms and Google that was based on a lawsuit filed in 2005 against two Missouri men and the four Web sites they operated -- including EasyDownloadCenter.com and TheDownloadPlace.com. The sites allegedly sold software to search for and then download pirated movies and software from peer-to-peer networks.

"Google encouraged the use of keywords and advertising text referring to illegal copies of music and movies. These actions bolstered Web sites dedicated to piracy and reportedly netted Google around US$800,000 in advertising revenues from just four such pirate sites," Rubin said. "These are not the actions of a company that has the interests of copyright owners as one of its priorities."

The Wall Street Journal first reported on the dispute, which surfaced after the newspaper obtained information on sworn statements made by the two defendants late last year that Google's ad salespeople sold ads to the sites despite being aware of their business practices.

The men, Brandon Drury and Luke Sample, both 26 and from Cape Girardeau, Mo., reportedly said in those statements that Google gave them keywords such as "bootleg movie download" and "pirated" to draw traffic to their sites. Of the US$1.1 million generated between 2003 and 2005 by Drury's and Sample's sites, US$809,000 was paid to Google for sponsored links, the Journal reported. The sites have long been shuttered.

Last month, according to the newspaper, Google met with media companies, including News Corp., Sony, Time Warner, Viacom and Walt Disney Co., on a conference call and promised to refrain from selling keywords used by sites to entice people to download pirated content.

Also in February, the San Jose Mercury News reported that several software companies, including Microsoft, Adobe Systems, Intuit and Symantec, had also been victimized by Drury and Sample. In an affidavit obtained by the Mercury News (download PDF), the two men claimed that Google representatives suggested that they buy sponsored-link ads for keywords, including "Microsoft XP Software" and "Microsoft Word" combined with the words "free" and "download."

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Rubin made his case in front of the AAP by bringing up the software angle of Google's alleged malfeasance. "Microsoft was surprised to learn recently that Google employees have actively encouraged advertisers to build advertising programs around keywords referring to pirated software, including pirated Microsoft software," he said.

Google did not return calls for comment, and a Microsoft spokesman only offered a link to the Mercury News story when asked for proof of Rubin's allegations.

"He's focusing on an 'inducement to infringe,' " said Paul Lesko, a partner at SimmonsCooper and head of the law firm's intellectual property group. " 'Actively encouraged' -- that's the key phrase in Rubin's remarks there.

"Inducement to infringe is statutory for patents, and Rubin's trying to bring that to the copyright world," said Lesko. "He's trying to use Grokster to support some of Microsoft's claims against Google."

In the 2005 Grokster decision (officially MGM Studios Inc. v. Grokster Ltd.) by the U.S. Supreme Court, the concept of induced infringement -- that Grokster specifically encouraged copyright violations by its actions and business model -- was key, Lesko said. "Grokster was a peer-to-peer case, so Microsoft is drawing analogies between it and what Google is doing now," he said.

He wouldn't comment on whether Rubin might be laying the foundation for future legal action against Google.