THE FUTURE ACCORDING TO GOOGLE: TECHNOLOGY POLICY FROM THE STANDPOINT OF AMERICA'S FASTEST-GROWING TECHNOLOGY COMPANY

As the fastest-growing technology company in the United States, (1) Google has been at the center of some of the most contentious technology policy disputes of recent years. In the federal courts, these disputes focus on the fair or noncommercial use of copyrighted work and trademarks on the Internet. In Congress, Google is leading the charge in favor of laws protecting innovative Internet companies from discriminatory or exorbitant charges by broadband and wireless infrastructure providers. It has also been a vocal opponent of excessive governmental control over Internet content. Copyright lawsuits arising out of search engines and user-generated content sites such as Google Video and YouTube have the potential to change the rules governing communication over the Internet. Similarly, trademark litigation alleging that comparative and Internet keyword-based advertising are infringing may limit the ability of technology companies and their customers to compete online. Many technology companies also believe that injunctive relief obtained by the owners of patents in comparatively minor components of complex software-enabled products may chill innovation and divert capital away from applied research. But it seems that the power of infrastructure providers to favor allied content providers has truly spooked technology leaders like Google. Meanwhile, Google, other technology and Internet companies, and members of Congress have demanded action to limit foreign governments' ability to block U.S.-based Web content from being accessed by persons present in their territory. This essay contends that two of the most likely candidates for important technology policy initiatives in the administration of President Barack Obama are two of Google's public policy priorities, namely net neutrality and global online freedom. The adoption of these initiatives as public policy priorities would be a positive development for technology users and producers around the world. Their success would mean that two of the foremost threats to online freedom have been deferred, at least for a while. Nonetheless, overbroad or questionable copyright, trademark, and patent rights will continue to bedevil technology firms, as they have for much of the past century. I. INTELLECTUAL INNOVATION A. Calibrating Copyright The struggle by authors and innovators against claims to absolute ownership rights in copyrighted work goes back centuries. (2) In recent years, demands by copyright holders to control the secondary markets for indexing, utilizing excerpts of, and improving upon their works have generated increasing numbers of cases alleging copyright infringement. (3) These demands have set into motion a cycle of overprotection of intellectual property, suppression of output and of new methods of distribution, overcompensation of a minority of heavily-promoted celebrities, the overshadowing of most other creative work, and a consumer revolt against the system by means of small-scale infringements. (4) Starting in the early- to mid-1990s, U.S. courts began to threaten the development of innovative Internet and Web-enabled services by holding technology companies liable for contributing to their users' copyright infringement, and by interpreting defenses to copyright such as the fair use doctrine in a narrow manner. (5) Before Sony Corp. of America v. Universal City Studios, Inc, (6) it was sometimes said that one could commit contributory copyright infringement simply by "inducing" or encouraging another's infringement. (7) After Sony, the contributory infringement standard was more clearly stated as making a material contribution to infringement one knows is going on. Sony also said that knowledge of infringement cannot be presumed in such a case, or for purposes of vicarious infringement, if the product or service that contributed to the infringement is capable of substantial noninfringing uses. …