For me, the interesting question about this issue is: who owns the search result after it has been displayed to the user? The San Jose Mercury News said :
Microsoft countered that it was only using data voluntarily supplied by its customers to improve Bing's search quality.That's fine, if the customers own the results and so have the right to voluntarily supply the data. If not, then I suppose these customers are at fault for copyright violation, and Microsoft for building in a nondiscriminating feature that causes its customers to violate copyright law.
I visited the Google search page, and a Google result page, and neither showed any link to determine how the results were licensed.So I'm not sure how the Google result is licensed to users.
To me, this is reminiscent of the music piracy cases a few years ago, and similar cases since about other copyright content. The web site can claim that it doesn't make any decision to infringe, only the site user can choose what to upload. Nonetheless, folks like Napster were held liable for building a product for which there was a reasonable expectation of it being used for piracy.
Similarly, Microsoft can claim all they want that this controversy is based in a misunderstanding of how their opt-in program works ... but if the customers have no legal right to browser-displayed content, this is a pretty reckless feature for Microsoft to argue. I know for many (paid) sites, there is a clearly worded copyright license - is Microsoft indexing from those sites as well?
That said, I suspect Microsoft has more and better lawyers than Napster did.
I wonder if the Bing search page has a link for copyright owners to complain of violations, as required under the DMCA?
I am not a lawyer, nor do I play one on TV. My employer neither knows of nor avows this post.