Google owning your content and the problem with rational thinking

I'm frankly surprised by the brouhaha that has sprung up around ZDNet's Joshua Greenbaum's reasonable question--Does Google own the content that users of Google Apps create?--and my follow-on post. I continue to believe it's a legitimate question based on Google's loose language in the agreement.

Let's be clear: I don't believe Google has nefarious designs on its Apps users' content. But the language is sufficiently broad to allow it. The problem with the uproar is that it's being fueled by common sense. "Of course 'public' means what we all think it means, and of course Google doesn't own my copyrights." The problem with common sense is that it doesn't always get a fair trial in court.

Frankly, I think the whole issue could be put to rest by Google defining the word "public." It doesn't, at least not anywhere that I could discover. An oversight? Very likely, but no less troublesome for this fact.

Richard MacManus over at Read/Write Web writes that Google neither owns its users' content nor does Google do anything with private content. The first part is true (and I never said anything contrary to this because...) but the second part is questionable. Richard is thinking like a rational human being. Lawyers don't get paid to think like that.

Is it "private" if I share it with my company? Maybe. Is it "private" if I share it with my family? Maybe. It's an open question, and guess who decides? Google (or, ultimately, a court), not you. Why? Because the system doesn't provide a way to define what is private and what is public.

Think I'm making this up? Here's a page from Google Docs that I use with Dave Rosenberg and Ashlee Vance for a podcast series we're starting.

Do you see that "Make this public" button? No, because it's not there. You can share, and you can define with whom you share, but the system does not allow you to define at what point your sharing makes something public content.

This is exactly why Owen Thomas' pithy post over on Valleywag is also wrong, though I appreciate Owen at least allowing me the sin of sloppiness. :-) For Owen, it's obvious what the boundary is between private and public. But for the law, it's not so clear, and it's certainly not clear in Google's system that provides no way to define what is private and what is public.

Would it be hard for Google to do this? Absolutely not. I would guess it would take a Google developer a few minutes to write it into the program. It would take Google's lawyers about as much time to update its terms and conditions to define public (though, again, I think it's better to code the definition into the product rather than more legalese into the Ts and Cs).

The only reason not to do either is if, in fact, Google is hoping to use the content in the ways noted in the Ts and Cs. Content that you and I may rationally believe is private, but which Google rationally believes is public. It's a lawyer's question, when it really should be for the user to determine.