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# Google's raid on the commons : There has been a fair amount of commentary in the last few weeks about the Google Toolbar feature that more or less duplicates the Smart Tags functionality Microsoft tried (and then retracted) a few years back. Something about it must have struck me, because I’ve found my thoughts coming back to it again and again, like a problem that I was trying to work through. I’m hoping that my writing this post, I’ll get it out of my system so that my brain can move on to other things.

What bothered me at first was that people were getting upset about Google modifying the content they published on the web. The fact that it was being modified in ways that would allow Google and others to make money with no compensation going to the content’s author only made things worse. (On a deeper level, I think that many people were upset at the realization that Google is a public company whose mission is no longer to “do no evil” but to make money, a topic that deserves a separate post of its own.)

Publishing content on the Web is about publishing content in a structured format (usually XML) for others to make use of. Traditionally, this has meant viewing in a browser according to the guidelines laid out by the W3C. The movement to XML (including XHTML) over the past few years was, in part, a move away from this model, to a space where content is published without an explicit understanding of how it might be used by others.

Under this new model, it makes little sense to go through the effort to publish XML content and then complain when someone is using it in a way you hadn’t intended.

Having said that, XML content is still protected by intellectual property laws. It is still protected by copyright. An application that makes use of someone else’s intellectual property must still respect the relevant laws. Somewhere in here is a solution to the Google Toolbar problem.

My thinking here was more influenced by the Creative Commons licenses, since they map directly to the behaviours of the Google Toolbar.

Assume that I have a web site, and that the content on that web site is protected by an Attribution-NonCommercial-NoDerivs license.

Next, take a user that has the Google Toolbar installed. When that user visits my site, the Google Toolbar modifies the display of the page so that it contains ads and links, modifications that contribute to the commercial activities of Google and/or other companies.

In this scenario, while Google has respected the Attribution aspect of the license covering my content, it has violated the NonCommercial and NoDerivs aspects.

(Disclaimer: I’m not a lawyer, so I don’t know how well any of this would stand up in court)

This situation is not unique to the Google Toolbar. It is shared by every application that makes uses web content in ways other then straightforward consumption of that content by individuals in (more or less) the way it was indented. This includes RSS aggregators, browsers, any software that could be said to be creating a derivative work based on original sources.

While it might be difficult to create a definition of “derivative work” for this new medium, it is by no means impossible. Already it is possible to embed licence information in content files so that it could be read and understood by software seeking to make use of that content (ex: the Google Tolbar would only add links to content containing a Creative Commons Attribution licence, the only licence which explicitly allows derivative, commercial works).

The biggest challenge will probably be for individuals whose intellectual property rights have been violated by, for example, Google to persue them in the court of law. Here also, though, I’m assuming someone will find a way to make that happen as well.