There is a really fine company out there – we will call it TeacherSoft. TeacherSoft wants to build the best possible education platform and market it globally.
To do this it inserts in 100 thousand classrooms a classroom recorder. The recorder records everything the teacher does. TeacherSoft of course has the consent of 100 thousand teachers to insert the recording equipment.
The recording equipment is very powerful. Not only does it record what the teacher says – but using speech recognition software it converts all of that material to text and it uses that text in its own business.
TeacherSoft also – in building the best possible education platform – uses many other signals. For instance it uses exam results sometimes adjusted for the socio-economic status of the kids.
The teachers are of course informed about TeacherSoft – and they endorse its programs. TeacherSoft of course shares some of the benefits of that program with the teachers. The teachers in the process pass the information freely knowing it will be shared. That is of course the deal.
Now one particularly fine teacher gets a little stroppy when her teaching technique is featured heavily in TeacherSoft's lucrative platform. She thinks she should be entitled to share in the wealth. Alas she does not have a leg to stand on – she consented to the use of any copyrights she owned.
Joe the novelist
Joe is a children's novelist. The novels are not long – a couple of thousand words at most. They are a length that a teacher can read them to a kid on a hot Friday afternoon – when the kids are a little rowdy and are not really up to arithmetic lessons.
Joe's novel is of course incorporated into TeacherSoft's database. A teacher read it aloud – and through sophisticated speech recognition software the whole novel got included in TeacherSoft's teaching kit.
It's not an exact copy of Joe's novel though. The teacher read it but mispronounced a few words and took breaths at the wrong places and hence the punctuation is slightly incorrect. Also – because TeacherSoft's systems are not perfect the spelling is incorrect in a few places.
But it is a copy of at least a part of Joe's novel.
Joe doesn't like TeacherSoft making profits from Joe's novel. Joe owns the copyright – and he politely asks that whenever TeacherSoft notices Joe's novel in their database they exclude it.
TeacherSoft does not accept Joe's claim. They say they did not copy Joe's novel. They just watched the “teacherstream”. They don't see one part of the teacherstream – the part based on novels – should be prioritized or not prioritized over any other part of the teacherstream. The novel is just a small part of a teacherstream.
Joe is upset. His novel has been – in part – copied. He seems to have no redress other than issuing a cease-and-desist.
Is it copyright abuse?
I think this is obviously copyright abuse. The copy of Joe's novel – or even parts of it (as long as those parts do not fit into a fair use exemption in the copyright law) are breaches of copyright.
TeacherSoft argues that it has not breached Joe's copyright. It has permission from classroom teachers to use their teacherstream. They just got the material from the teacherstream and they have permission to use that.
So what. They don't have Joe's permission. And Joe has sent a cease-and-desist letter.
And if TeacherSoft were to continue to ignore the cease-and-desist then TeacherSoft would be liable for breach of copyright. If this were a case of a lot of little Joe's and one big nasty corporation I would even go as far as to suggest that a visit from criminal regulators would be appropriate. Of course it would never get to that – but if done on a grand scale and with flagrant disregard for copyright it would be criminal.
The Microsoft analogy
This is – of course – a direct analogy to Google's claim that Microsoft is breaching their copyright. This is a claim that almost all my readers have disagreed with – but which I think is a lay-down.
Ed Harrison (from the wonderful Credit Writedowns) refers me to an article by Danny Sullivan. Sullivan writes more about Search than anyone else on the web – and knows his way around. His argument is this:
The Search Signal Doesn’t Overrule Other Signals
Let’s step back. There’s no “Google signal” but rather a “search signal” that Google activity is mixed into. That search signal is further mixed in with other ranking signals, a dilution that is crucial to why Bing so strongly rejects Google’s claim that it is copying its results.
Most of Bing’s searches — popular so-called “head” searches — are not heavily influenced by the search signal, Bing says. There are many other signals that come into play.
“Movies” would be an example of a head search. That’s a search that’s done by thousands of people each day, and a search topic with lots of “signal” to measure. Bing can determine if pages are relevant to that term based on the words that appear on the page itself; how many people link to some of these pages with the word “movies” in the link; how authoritative those links seem to be, and more.
Bing can also examine how people click on its own results that it lists in response to that search. If a page doesn’t get as many clicks as would be expected, it might get dropped further down on the list. Pages that get more clicks than expected can be a sign that users find them more relevant than Bing’s ranking algorithm did originally, and so that can be used to boost them.
In addition to these and other signals, Bing can also turn to the surfstream to perhaps give a boost to pages that it sees are well visited by Internet Explorer users.
“Bombilate” would be an example of a “tail” search, a search that’s rarely done, and on an unusual topic. Here, there are fewer signals to assess. Only a few pages might be found. These pages might have few links pointing at them. Since the term isn’t searched for often, measuring clicks on Bing’s own results might not help much much. This is a case where the surfstream — as well as the search signal within it — might count more.
Microsoft is arguing that there is no “google search signal” there is just clickstream. They don't distinguish Google clickstream from any other clickstream. That they wind up copying part of Google's database (and a small part at that) is an accident of clickstream – it is not copying.
Ok – and TeacherSoft argues that they are not copying novels – they are just using teacherstream.
Microsoft argues it has permission to copy a “clickstream”. TeacherSoft argues it has permission to copy a clickstream. But they do not have permission from Google or Joe respectively – and it is Google or Joe's copyright they are breaching.
Microsoft's argument is ultimately very weak. Google has copyrighted search results. They wind up in Bing's search engine. Joe has a copyrighted novel. It winds up in TeacherSoft's education material. Both Google and Joe have a valid claim for breach of copyright. It does not matter how technologically sophisticated the method of copying. The novel and Google's data are copyright and they are copied.
Microsoft is also a huge hypocrite here – it regularly cooperates in criminal prosecution of people who breach copyright. Yet Microsoft flagrantly breaches copyright – and ignores a cease-and-desist.
I opposed the original anti-trust action against Microsoft. But this time – and much to the annoyance of most my readers – I really do think the Justice Department should become involved.
I know my readers disagree with me. That is kind of nice. Part of the joy of this blog is to find smart people who disagree with me - and I have found them here. But I still don't think I am wrong.