AllThingsD » fair use

Associated Press Settles Copyright Case With Obama Poster-Maker Shepard Fairey

Peter Kafka — Wed, 12 Jan 2011 19:05:11 +0000

Good to get this one cleared up before the 2012 election: The Associated Press has settled its copyright case with artist Shepard Fairey, who used an AP photograph to create the once-famous Obama “Hope” poster in 2008. The case has been worth watching for digital types because it hinges on the concept of “fair use,” but an AP press release notes that “neither side surrenders its view of the law.” The two sides will work together to generate revenue from the poster and related images, and Fairey plans on making more stuff using AP photos, with the news group’s permission.

Turnabout Is Fair Play: BoomTown Decodes Rupe's Journalism-Is-Not-a-Free-Cow Op-Ed!

Kara Swisher — Mon, 14 Dec 2009 17:05:08 +0000

Last week, BoomTown translated an opinion piece written by Google CEO Eric Schmidt and published in The Wall Street Journal that focused on defending the search giant from criticism that it was, well, killing journalism.

One of the louder critics, in fact, has been Rupert Murdoch, chairman and CEO of News Corp. (NWS), who has been loaded for bear in regard to Google (GOOG), leveling a series of high-profile verbal attacks on the company.

Last week, Murdoch published his own piece in The Journal, which he owns (along with this Web site), on the topic of the wrenching changes in the news business and in which he never mentioned Google by name.

But the company was there anyway, so, in the interests of equal opportunity balloon-pricking, I must also render Murdoch’s post through my decoding machine, because it’s only sporting!

His op-ed, The Journal noted, “has been adapted from his Dec. 1 remarks before the Federal Trade Commission’s workshop on journalism and the Internet.”

What Murdoch wrote: Journalism and Freedom

Government assistance is a greater threat to the press than any new technology.

By RUPERT MURDOCH

Translation: Crikey, as they say in Australia, I have been getting a little wobbly over Google’s growing power, but those bludgers in government will always make me go more troppo.

And, unlike Eric Schmidt, I didn’t need to be called Emperor Palpatine to scare people. Plain old “Rupe” works just fine to give most people the shakes.

What Murdoch wrote: We are at a time when many news enterprises are shutting down or scaling back. No doubt you will hear some tell you that journalism is in dire shape, and the triumph of digital is to blame.

My message is just the opposite. The future of journalism is more promising than ever–limited only by editors and producers unwilling to fight for their readers and viewers, or government using its heavy hand either to overregulate or subsidize us.

Translation: Please try to ignore the salient fact that it was actually Rupert Murdoch–me!–who has been loudly clanging the bell of late about how Google is laying waste to journalism, much as Sean Hannity did to that poor Alan Colmes nightly for a dozen years.

Also, please ignore that I am saying my message is just the opposite, because–really–I hate government more than I hate Google, so this makes perfect sense if you really think about it.

But don’t think about it, mate!

Murdoch wrote: From the beginning, newspapers have prospered for one reason: The trust that comes from representing their readers’ interests and giving them the news that’s important to them. That means covering the communities where they live, exposing government or business corruption, and standing up to the rich and powerful.

Technology now allows us to do this on a much greater scale. That means we have the means to reach billions of people who until now have had no honest or independent sources of the information they need to rise in society, hold their governments accountable, and pursue their needs and dreams.

Does this mean we are all going to succeed? Of course not. Some newspapers and news organizations will not adapt to the digital realities of our day–and they will fail. We should not blame technology for these failures. The future of journalism belongs to the bold, and the companies that prosper will be those that find new and better ways to meet the needs of their viewers, listeners, and readers.

Translation: Teri: Cue the speech about what journalism means for the little people! But also make sure we get in how News Corp. gets all this digital hoo-ha too and how we are not going to let those pointy-heads of Silicon Valley think we are not ready to rumble!

What Murdoch wrote: First, media companies need to give people the news they want. I can’t tell you how many papers I have visited where they have a wall of journalism prizes–and a rapidly declining circulation. This tells me the editors are producing news for themselves–instead of news that is relevant to their customers. A news organization’s most important asset is the trust it has with its readers, a bond that reflects the readers’ confidence that editors are looking out for their needs and interests.

Translation: There was a trophy cabinet and award wall just like that at The Wall Street Journal before I bought it. I ate it it for breakfast.

What Murdoch wrote: At News Corp., we have been working for two years on a project that would use a portion of our broadcast spectrum to bring our TV offerings–and maybe even our newspaper content–to mobile devices. Today’s news consumers do not want to be chained to a box in their homes or offices to get their favorite news and entertainment–and our plan includes the needs of the next wave of TV viewing by going mobile.

The same is true with newspapers. More and more, our readers are using different technologies to access our papers during different parts of the day. For example, they might read some of their Wall Street Journal on their BlackBerries while commuting into the office, read it on the computer when they arrive, and read it on a larger and clearer e-reader wherever they may be.

Translation: Teri: Tell Jon Miller to get on a plane stat and start chit-chatting with those Asian manufacturers asap. I am not going to let Amazon (AMZN) head Jeff Bezos guffaw me into oblivion with his Kindle or have “American Idol” get hijacked by Apple (AAPL) or have those Google (GOOG) twins shine me on, even as they are developing some magic mobile phone.

What Murdoch wrote: My second point follows from my first: Quality content is not free. In the future, good journalism will depend on the ability of a news organization to attract customers by providing news and information they are willing to pay for.

The old business model based mainly on advertising is dead. Let’s face it: A business model that relies primarily on online advertising cannot sustain newspapers over the long term. The reason is simple arithmetic. Though online advertising is increasing, that increase is only a fraction of what is being lost with print advertising.

That’s not going to change, even in a boom. The reason is that the old model was founded on quasimonopolies, such as classified advertising, which has been decimated by new and cheaper competitors such as Craigslist, Monster.com, and so on.

Translation: My second point follows from the first: We can’t charge for milk when we have been giving away the cow for free.

And, frankly, the old media have been lending out Bessie to every Web site that comes looking for a gallon, free of charge, in abject fear that no one likes milk anymore.

In the good old days, when we were the only beverage around–I like to call it a “quasiMOOnopoly”–we could set any price we wanted.

Now, unfortunately, everybody’s got milk.

What Murdoch wrote: In the new business model, we will be charging consumers for the news we provide on our Internet sites. The critics say people won’t pay. I believe they will, but only if we give them something of good and useful value. Our customers are smart enough to know that you don’t get something for nothing.

Translation: People will pay, once we de-index our sites from Google and they can’t get their daily dose of the New York Post’s Page Six for free. Where else will they get the latest online tidbits on the Tiger Woods scandal, for example?

Okay, from everywhere. But Page Six names at least 46 percent more mistresses than TMZ, and that’s worth something.

What Murdoch wrote: That goes for some of our friends online too. And yet there are those who think they have a right to take our news content and use it for their own purposes without contributing a penny to its production. Some rewrite, at times without attribution, the news stories of expensive and distinguished journalists who invested days, weeks or even months in their stories–all under the tattered veil of “fair use.”

These people are not investing in journalism. They are feeding off the hard-earned efforts and investments of others. And their almost wholesale misappropriation of our stories is not “fair use.” To be impolite, it’s theft.

Right now, content creators bear all the costs, while aggregators enjoy many of the benefits. In the long term, this is untenable. We are open to different pay models. But the principle is clear: To paraphrase a famous economist, there’s no such thing as a free news story, and we are going to ensure that we get a fair but modest price for the value we provide.

Translation: By “friends,” I mean “sworn enemies,” also known as “Google.” (Until it meets with me to do a deal and then it is “friends” again.)

By “tattered veil of ‘fair use,’” I mean “the law I am going to get gutted by my 1,473 lobbyists in Washington, D.C.”

By “to be impolite, it’s theft,” I mean “to be impolite, it’s theft by Larry and Sergey.” (Until they meet with me to do a deal and fork over the moolah, and then it will be a “business arrangement.”)

By “there’s no such thing as a free news story,” I mean “I hope to trick those Google-obsessed Bing boys at Microsoft (MSFT) into paying me that boatload of money they aren’t sending Carol Bartz of Yahoo (YHOO).”

What Murdoch wrote: Finally, a few words about government. In the last two or three decades, we have seen the emergence of new platforms and opportunities that no one could have predicted–from social networking sites and iPhones and BlackBerries, to Internet sites for newspapers, radio and television. And we are only at the beginning.

The government has a role here. Unfortunately, too many of the mechanisms government uses to regulate the news and information business in this new century are based on 20th-century assumptions and business models. If we are really concerned about the survival of newspapers and other journalistic enterprises, the best thing government can do is to get rid of the arbitrary and contradictory regulations that actually prevent people from investing in these businesses.

One example of outdated thinking is the FCC’s cross-ownership rule that prevents people from owning, say, a television station and a newspaper in the same market. Many of these rules were written when competition was limited because of the huge up-front costs. If you are a newspaper today, your competition is not necessarily the TV station in the same city. It can be a Web site on the other side of the world, or even an icon on someone’s cell phone.

These developments mean increased competition, and that is good for consumers. But just as businesses are adapting to new realities, the government needs to adapt too. In this new and more globally competitive news world, restricting cross-ownership between television and newspapers makes as little sense as would banning newspapers from having Web sites.

Translation: Oh, I do not like Silicon Valley, but I dislike government even more!

And now that Google is its bogeyman instead of me, I really hope to finally be able to gut all those annoying cross-ownership rules that prevented me from owning the entire media landscape of every major city in America.

This must be done immediately, because those icons on people’s cellphones–especially that dangerous iFart app–are poised for attack!

What Murdoch wrote: In my view, the growing drumbeat for government assistance for newspapers is as alarming as overregulation. One idea gaining in popularity is providing taxpayer funds for journalists. Or giving newspapers “nonprofit” status–in exchange, of course, for papers giving up their right to endorse political candidates. The most damning problem with government “help” is what we saw with the bailout of the U.S. auto industry: Help props up those who are producing things that customers do not want.

The prospect of the U.S. government becoming directly involved in commercial journalism ought to be chilling for anyone who cares about freedom of speech. The Founding Fathers knew that the key to independence was to allow enterprises to prosper and serve as a counterweight to government power. It is precisely because newspapers make profits and do not depend on the government for their livelihood that they have the resources and wherewithal to hold the government accountable.

Translation: You bailin’ out me? You bailin’ out me? You bailin’ out me? Then who the hell else are you bailin’ out? You bailin’ out me? Well I’m the only one here. Who the %*#! do you think you’re bailin’ out?”

What Murdoch wrote: When the representatives of 13 former British colonies established a new order for the ages, they built it on a sturdy foundation: a free and informed citizenry. They understood that an informed citizenry requires news that is independent from government. That is one reason they put the First Amendment first.

Translation: Teri: Please insert the clarion cry of the First Amendment here, as it always stirs the heartstrings.

What Murdoch wrote: Our modern world is faster moving and far more complex than theirs. But the basic truth remains: To make informed decisions, free men and women require honest and reliable news about events affecting their countries and their lives. Whether the newspaper of the future is delivered with electrons or dead trees is ultimately not that important. What is most important is that the news industry remains free, independent–and competitive.

Translation: Believe me, if we could push a button and get rid of the whole Internet, News Corp. and Time Warner (TWX) and Viacom (VIA) and CBS (CBS) and the whole lot of us old media players would.

Barring that, whether the newspaper of the future is delivered with electrons or dead trees is ultimately not that important.

What is most important is that the news industry shake down big piles of dough from those Silicon Valley moneybags–whether they be Google or that Mark Zuckerberg kid, whenever Facebook goes public, or those Twitter dudes (if they figure out a way to make any money outside of fund raising)–in order to remain free, independent–and competitive.

It is, after all, the American way.

Please see this disclosure related to me and Google.

BoomTown Decodes Google CEO Schmidt's Shut-Up-You-Whiny-News-Folk Op-Ed (So You Don't Have To)!

Kara Swisher — Thu, 03 Dec 2009 21:30:47 +0000

Please see this disclosure related to me and Google.

Google CEO Eric Schmidt did one of his patented throat-clearers in an opinion piece in The Wall Street Journal today and it pretty much begs for translation.

Well, BoomTown shall not tarry from the task of decoding the extra-long rumination from the head of Google (GOOG), who was responding to the recent spate of aggressive attacks by traditional media publishers.

They have blamed the search giant for everything from their current business woes to the destruction of journalism to Tiger Woods’s dicey marital troubles.

Okay, not that! But the rest for sure.

First and foremost among the attackers has been Rupert Murdoch, CEO and ruler-of-all-he-surveys at News Corp. (NWS), which owns The Wall Street Journal and this Web site.

How ironic, yet still typically cozy from a corporate bigwig point of view! I call you a cur in public, but please use my newspaper so that I can get some decent traffic from this wrestling match.

But all is not what it seems in the Schmidt piece, of course, so here’s the translation:

What Schmidt wrote: How Google Can Help Newspapers

Video didn’t kill the radio star, and the Internet won’t destroy news organizations. It will foster a new, digital business model.

By ERIC SCHMIDT

Translation: We come in peace, always. You know, like the freakily calm lady from “V,” who is really a lizard under all that pretty and is actually secretly trying to decide between grilling and broiling all you whiny news people.

Also, you can address me in the future as Emperor Palpatine.

What Schmidt wrote: It’s the year 2015. The compact device in my hand delivers me the world, one news story at a time. I flip through my favorite papers and magazines, the images as crisp as in print, without a maddening wait for each page to load.

Even better, the device knows who I am, what I like, and what I have already read. So while I get all the news and comment, I also see stories tailored for my interests. I zip through a health story in The Wall Street Journal and a piece about Iraq from Egypt’s Al Gomhuria, translated automatically from Arabic to English. I tap my finger on the screen, telling the computer brains underneath it got this suggestion right.

Some of these stories are part of a monthly subscription package. Some, where the free preview sucks me in, cost a few pennies billed to my account. Others are available at no charge, paid for by advertising. But these ads are not static pitches for products I’d never use. Like the news I am reading, the ads are tailored just for me. Advertisers are willing to shell out a lot of money for this targeting.

Translation: It’s the year 2015 in the United States of Google, where the new country colors are a festive green, blue, red and yellow.

As per the new Declaration of Googlependence, besides the tracking chip in your thighs, every citizen will be outfitted with a tablet running Chrome and looking suspiciously like a large iPhone, except that Apple (AAPL) was outlawed in the Fanboy Purge of 2010.

Every day, citizens will receive news specially aimed at them, such as “The Health Benefits of Sergey Worship.” Ads will also be tailored to citizens’ likes and dislikes, such as a pitch for Googley deodorant with the motto: “Search me, because I smell nice!”

Costs will be billed to your accounts at the National Bank of Google.

What Schmidt wrote: This is a long way from where we are today. The current technology–in this case the distinguished newspaper you are now reading–may be relatively old, but it is a model of simplicity and speed compared with the online news experience today. I can flip through pages much faster in the physical edition of the Journal than I can on the Web. And every time I return to a site, I am treated as a stranger.

So when I think about the current crisis in the print industry, this is where I begin–a traditional technology struggling to adapt to a new, disruptive world. It is a familiar story: It was the arrival of radio and television that started the decline of newspaper circulation. Afternoon newspapers were the first casualties. Then the advent of 24-hour news transformed what was in the morning papers literally into old news.

Translation: [Rachel: Please insert usual pap boilerplate here damning the newspaper business with faint praise. History of how change hurts, but is inevitable...blah, blah, blah. Please make sure to deliver a few digs too, like how--unlike Google--newspapers have no idea what their readers did last summer. Like we do. Cue evil Mwahahahaha laugh here.]

What Schmidt wrote: Now the Internet has broken down the entire news package with articles read individually, reached from a blog or search engine, and abandoned if there is no good reason to hang around once the story is finished. It’s what we have come to call internally the atomic unit of consumption.

Translation: “Atomic unit of consumption” is one of those terms we don’t expect you small-brained people to even begin to understand. Although you use only eight percent of your mental capacity, we here at Google use an average of 71 percent, tracking on our search share.

What Schmidt wrote: Painful as this is to newspapers and magazines, the pressures on their ad revenue from the Internet is causing even greater damage. The choice facing advertisers targeting consumers in San Francisco was once between an ad in the Chronicle or Examiner. Then came Craigslist, making it possible to get local classifieds for free, followed by Ebay and specialist Web sites. Now search engines like Google connect advertisers directly with consumers looking for what they sell.

Translation: I also don’t expect you Luddites will get this, but all your base are belong to us.

For those who need an older cultural reference, it is like the end of “Butch Cassidy and the Sundance Kid.” Um, as much as you Hollywood types like a happy ending, Butch and the Kid did not make it.

What Schmidt wrote: With dwindling revenue and diminished resources, frustrated newspaper executives are looking for someone to blame. Much of their anger is currently directed at Google, whom many executives view as getting all the benefit from the business relationship without giving much in return. The facts, I believe, suggest otherwise.

Google is a great source of promotion. We send online news publishers a billion clicks a month from Google News and more than three billion extra visits from our other services, such as Web Search and iGoogle. That is 100,000 opportunities a minute to win loyal readers and generate revenue–for free. In terms of copyright, another bone of contention, we only show a headline and a couple of lines from each story. If readers want to read on they have to click through to the newspaper’s Web site. (The exception are stories we host through a licensing agreement with news services.) And if they wish, publishers can remove their content from our search index, or from Google News.

Translation: Shut your overstuffed pie holes, you grumbling antiques. You were dying by the cell long before our superior technology arrived to save the day and help you out of your sorry mess.

Plus, we toss you all that traffic and you still manage to fumble our perfect pass like the pikers you are. (In truth, you are Charlie Brown and we are Lucy.)

Also, have you ever heard of “fair use”? It’s the law now and we can hire more lobbyists in Washington, D.C., than you with the bazillions and gamillions of dollars we make from all those tiny little blue links.

You do realize I have a key to the the White House and visit more times than Joe Biden?

What Eric wrote: The claim that we’re making big profits on the back of newspapers also misrepresents the reality. In search, we make our money primarily from advertisements for products. Someone types in digital camera and gets ads for digital cameras. A typical news search–for Afghanistan, say–may generate few if any ads. The revenue generated from the ads shown alongside news search queries is a tiny fraction of our search revenue.

Translation: Here’s an easy formula for you to grok: Michael Jackson+the pretty boy from “Twilight”+digital cameras=Big bucks for Google! Some thumbsucker you did on Afghanistan, however worthy and important for our nation’s future=14 cent CPM, but only if a drunken Lindsay Lohan story is in close proximity.

What Schmidt wrote: It’s understandable to look to find someone else to blame. But as Rupert Murdoch has said, it is complacency caused by past monopolies, not technology, that has been the real threat to the news industry.

Translation: [Rachel: Please insert Rupe quote that actually hangs him here.]

What Schmidt wrote: We recognize, however, that a crisis for news-gathering is not just a crisis for the newspaper industry. The flow of accurate information, diverse views and proper analysis is critical for a functioning democracy. We also acknowledge that it has been difficult for newspapers to make money from their online content. But just as there is no single cause of the industry’s current problems, there is no single solution. We want to work with publishers to help them build bigger audiences, better engage readers, and make more money.

Meeting that challenge will mean using technology to develop new ways to reach readers and keep them engaged for longer, as well as new ways to raise revenue combining free and paid access. I believe it also requires a change of tone in the debate, a recognition that we all have to work together to fulfill the promise of journalism in the digital age.

Translation: Really–we’re from Google and we’re here to help! Mwahahahahaha.

Seriously, you guys, please go back to demonizing Microsoft (MSFT) or those banker salaries or the health care bill.

While my gabillions of dollars are more than protecting me from the blows you are trying to land, I am not liking the hairy eyeballs I got at the Allen & Co. conference at Sun Valley last summer. I think Washington Post head Don Graham even short-sheeted my 600-thread count Frette bedding there.

What Schmidt wrote: Google is serious about playing its part. We are already testing, with more than three dozen major partners from the news industry, a service called Google Fast Flip. The theory–which seems to work in practice–is that if we make it easier to read articles, people will read more of them. Our news partners will receive the majority of the revenue generated by the display ads shown beside stories.

Translation: [Rachel: Please insert some kooky-named Google 20 percent project we have no intention of really going large on here, so they think we really are working on something to save them. Those media folks like Hail Mary tech solutions, even if they don't even know how to turn them on.]

What Schmidt wrote: Nor is there a choice, as some newspapers seem to think, between charging for access to their online content or keeping links to their articles in Google News and Google Search. They can do both.

Translation: You de-indexin’ me? You de-indexin’ me? You de-indexin’ me? Then who the hell else are you de-indexin’? You de-indexin’ me? Well I’m the only one here. Who the %*#! do you think you’re de-indexin’?”

What Schmidt wrote: This is a start. But together we can go much further toward that fantasy news gadget I outlined at the start. The acceleration in mobile phone sophistication and ownership offers tremendous potential. As more of these phones become connected to the Internet, they are becoming reading devices, delivering stories, business reviews and ads. These phones know where you are and can provide geographically relevant information. There will be more news, more comment, more opportunities for debate in the future, not less.

The best newspapers have always held up a mirror to their communities. Now they can offer a digital place for their readers to congregate and talk. And just as we have seen different models of payment for TV as choice has increased and new providers have become involved, I believe we will see the same with news. We could easily see free access for mass-market content funded from advertising alongside the equivalent of subscription and pay-for-view for material with a niche readership.

Translation: Smartphones are the answer! Sure! Your aging demo loves reading teeny-weeny writing on a device they want to throw against a wall.

Or maybe you can be like HBO! Except you’ll need more borderline porn and Mafia guys.

What Schmidt wrote: I certainly don’t believe that the Internet will mean the death of news. Through innovation and technology, it can endure with newfound profitability and vitality. Video didn’t kill the radio star. It created a whole new additional industry.

Translation: A census taker once tried to test me. I ate his liver with some fava beans and a nice chianti.

What's Really Behind the Rupe-a-Dope With Google and Microsoft? Here Are Five Possibilities!

Kara Swisher — Wed, 25 Nov 2009 00:34:29 +0000

Please see this disclosure related to me and Google.

There certainly is a lot of noisy swirl of late around the escalating fight between Google and some traditional media companies over content online.

The loudest voice in this fight has clearly been News Corp. (NWS) kingpin Rupert Murdoch, who seemingly has not met a television interviewer of late he did not regale with tales of Google’s nefariousness.

Part of what he is saying is surely justified–it’s definitely a crisis for the news business.

And in Murdoch’s mind, the blame should largely fall on Google (GOOG), which he believes is profiting from expensive content others have created and that the search giant is not paying for to such a warped and massive degree that it makes a mockery of fair use.

In Silicon Valley style, Google defends itself by saying it sends valuable Web traffic to News Corp. and other sites, so perhaps a hand-written thank-you note is really the proper response.

That missive is definitely not in the mail from Murdoch, who instead has sent a series of poison-pen letters to Google.

Most notable is that he has threatened to “de-index” at least some of his content assets–which are not insubstantial–from the now-inevitable crawlers sent out by the search giant.

These are, of course, vintage tactics from the Global Media Mogul Playbook: Causing a public hubbub and spooking perceived enemies by threatening drastic action and implying dire consequences, while simultaneously dealmaking behind the scenes.

Trying mightily to make the stakes more dramatic, News Corp. has pulled Microsoft (MSFT) into the fray as a possible white knight–if you live long enough, you do see it all–for publishers.

Under this scenario, the software giant would fork over some sum of money to get News Corp. and perhaps other key content companies, such as Associated Press, exclusively and prominently featured on its Bing search site.

The reward, presumably, would be increased searching on Bing for the stuff consumers could now not find on Google.

BoomTown reported earlier this week that, in fact, Microsoft was unlikely to hand over any kind of king’s ransom to publishers.

As I wrote:

While a spate of reports has Microsoft execs girding the globe offering gobs of cash to content companies to block Google and favor its Bing search service, sources close to the situation caution that it is extremely unlikely that the software giant would pay giant sums for that pricey privilege, which many inside the company think will not help it gain much search share.

“While there is a lot of mutual interest, it’s doubtful Microsoft is going to pay to ‘rent’ a corpus of content that it does not own,” said one source close to the situation. “The economics are not there for anyone.”

In other words, this wrestling match is not about whether Google or Microsoft will serve up links to content online, but about how much–or not at all–they are willing to pay for doing so.

So, what’s really happening here? Here are five possibilities to consider, each of which is true in part:

1. Murdoch really means it.

In this scenario, Murdoch and others, like AP’s Tom Curley, truly believe that Google–like that creepy salt-seeking alien from “Star Trek”–is sucking the life out of the media industry by making bank from its news content, but not giving back nearly enough in return.

Of course, a lot of these companies have willingly done distribution deals with Google over the years.

But now they don’t like it because the increasing money being made by Google, even as their revenue has suffered, has developed into a growing problem.

Which is simply this: There is a lot more money to be made in searching for content than in making content.

This realization has to shake content czars like Murdoch to the core, but it is indeed the situation they find themselves in.

Murdoch makes a fair point in that journalism costs money to make and it used to have a solid economic system under it until Google and others on the Web disaggregated it wholly.

Thus, online aggregators become “tapeworms,” as The Wall Street Journal Managing Editor Robert Thomson quipped.

Thomson also, on a recent panel at the Web 2.0 conference, said to Google’s front page head, Marissa Mayer, that she “unintentionally encourages promiscuity.”

Ouch. That remark, which was was quite striking if you were there to hear Thomson say it, said volumes more.

(Full disclosure: News Corp. owns Dow Jones, which owns this site.)

2. Murdoch really means to create a lot of confusion, in order to shake down Google.

Well, it would not be the first time Murdoch and many others of his ilk have used public sharp elbows and saber-rattling to get what they want.

Except in this case, the algorithm experts over at Google know precisely–down to the tenth decimal–how much linking to News Corp. makes for them.

And it is not much, especially when looking at the vast sea of data Google serves up.

Its money-making is widely dissipated, from searches for vacation information to mapping to car-buying to health. While news-finding definitely is part of the mix, it is not at the center of the Borg.

Ironically–and oddly left out of this debate–it is Yahoo (YHOO) that has a lot of power in this arena, with massive content sites that shoot traffic all over the Web (including to this site).

But, what Google cannot and never can quantify–although I have seen co-founder Larry Page try once or twice–is the impact of public perception on the company, which has slowly morphed from being a benign, brightly-colored digital, librarian-like helper to a scary, answer-to-no-one, evil-doing monster.

The company’s growing influence over what people see and do not see on the Web is palpably frightening to publishers, advertisers and anyone who wants to be digitally discovered.

Bad luck for Google: Creating and then attacking bogeymen is a Murdoch talent, bar none.

3. Murdoch really means to create a lot of confusion, in order to shake down Microsoft.

Also obvious is the full-scale obsession Microsoft has with Google. While the software giant’s execs try to hide it, their panic over the success of Google has been tough on the once dominant tech company, which has struggled in the Internet arena.

Worse still, Google rakes in the dough, while Microsoft, um, does not.

Finally, this year, Microsoft has created–with no small amount of much needed innovation–Bing, a laudable effort that is starting to show some traction.

While Bing still has a very small market share compared with Google–by a factor of seven to one–it definitely has some momentum.

And, after much turmoil, Microsoft finally did a deft and relatively inexpensive deal to join with Yahoo in a search and advertising partnership to give them both more heft, which will surely help matters.

More important, one of the ways Bing has differentiated itself is via product innovations and intense focus on search niches, such as health.

In this topic area, for example, Bing has struck a not-expensive content licensing arrangement with the Mayo Clinic in order to better feature content.

This is smart business and offers consumers something better and different.

But overpaying big media publishers for the same thing, even if they de-indexed Google at the same time, is not smart, unless it is for really niche things like special financial information.

And even then, there are so many other sources of information out there, it would not take Google long to mount a similar offering, even in the face of some kind of OPEC of News consortium.

Even more–how much do consumers love OPECs of any kind? Not much!

Sources at Microsoft agree:

“If it was everyone, that might become interesting. But even that has issues, since Microsoft is not interested in having exclusive news for a temporary period of time by overpaying for it. It’s essentially a marketing expense, and there are a lot better ways to spend that money to win market share than giving it to publishers.”

Finally, Microsoft has been to the Murdoch party before too, having been part of talks to fold News Corp.-owned social networking site MySpace into Yahoo, had Microsoft prevailed in its attempt to acquire it.

Microsoft missed that pricey bullet and might be more inclined to grow Bing the old-fashioned way–via innovation, marketing and product improvements–rather than just using up too much of its energy trying to mess with Google.

4. A deal will be made.

My not-too-surprising prediction is that in the end, News Corp. and others will probably strike some kind of lesser deal with Microsoft–although it will tout the heck out of it–while taking some of its content behind a pay wall and thereby de-indexing it from Google.

More damaging would be if AP, which actually provides the most used news content online, removes its links completely from Google, because–unlike the premium content from other publishers–this is the bread and butter of consumer usage of content.

As to promotional material or links to television shows and movies from publishers like News Corp.? Well, it would seem the most self-destructive form of pique to remove those links from any of the top search engines.

That said, even if it really pissed me off for publishers to do so, I would probably switch to another search engine to find information on “Glee” if forced to. That’s how much I love those singing kids and Jane Lynch!

Finally, Murdoch has also threatened to challenge the fair use doctrine–which allows others to use copyrighted content within limits, as Google and many others do (such as this site).

While some think that is a bridge too far, it might be Murdoch’s best argument of all. Why should Google make a fortune on the content of others, even if only listing it? Doesn’t the sheer volume of what the search giant vacuums up make its reliance on fair use as a defense pretty ridiculous?

You can be sure Murdoch has his many lawyers and lobbyists all over this one, as does Google.

5. The truth is out there.

In perhaps his most strident television interview, with his Sky News Australia service (which you can see below–oh, the irony–on Google’s YouTube), Murdoch said about those who use Google to find News Corp. content:

“They don’t suddenly become loyal readers of our content. We’d rather have fewer people coming to our Web site but paying.”

That really is the honest truth in all this hubbub: Murdoch and other publishers have to find a way to get a some pool of dedicated online readers to pay enough to be able to then provide them with content that will keep them coming back for more.

That’s a business that Google truly cannot help or hinder, really.

And more to the point, it is also a business that Rupert Murdoch does seem to know a thing or two about.

The Judge Was Wrong: RealNetworks's RealDVD Appeal Document

Kara Swisher — Tue, 10 Nov 2009 23:48:40 +0000

RealNetworks just lobbed its appeal to the U.S. Court of Appeals in the case revolving around its DVD-copying software, RealDVD.

A U.S. District judge issued a preliminary injunction against RealNetworks (RNWK) in August to stop sales, and renewed it in October.

In a typical Hollywood move, the Motion Picture Association of America said the software, which allows copying of DVDs, violated the Digital Millennium Copyright Act.

In the appeal, RealNetworks said the judge was using the wrong law, that the software was not causing damage to the studios and that the technology is in the public interest and constitutes fair use.

“The District Court committed multiple legal errors in granting Appellees’ motions for preliminary injuction,” reads the appeal.

But, check out the whole appeal and below it, a video interview with RealNetworks CEO Rob Glaser that BoomTown did when RealDVD was launched a little over a year ago:

RealDVD Appeal

[ See post to watch video ]

EFF Creates a "Hall of Shame" for Disputed Takedowns

Marisa Taylor — Fri, 30 Oct 2009 15:42:08 +0000

The Electronic Frontier Foundation’s latest effort to call out what it considers violations of copyright and trademark law comes in the form of a mock-awards page, complete with “honorees,” called the Takedown Hall of Shame.

The tech-advocacy group highlights a handful of cases it calls “the most egregious examples of takedown abuse,” usually involving businesses or organizations that cry foul–or issue takedown notices–even when their copyrighted materials are used in accordance with fair-use laws.

Among the honorees are National Public Radio, which tried to get an All Things Considered segment removed from YouTube because it appeared in an anti-same-sex-marriage ad. Others include NBC, for yanking an Obama campaign video that used archival footage of Tom Brokaw, and the National Organization for Marriage, which pulled YouTube footage of Rachel Maddow criticizing the audition tapes of one of its ads opposing gay marriage.

Read the rest of this post on the original site

A Google Book Search for "Antitrust Law" Ought to Come in Handy Here…

John Paczkowski — Wed, 29 Apr 2009 16:27:46 +0000

Google’s gone and run afoul of the Department of Justice again. Its interest piqued by the growing outcry over the company’s proposed book-search settlement with authors and publishers, the agency has opened an inquiry.

Sources briefed on the matter say DOJ attorneys have contacted Google (GOOG) as well as the Association of American Publishers and the Authors Guild about the antitrust implications of the agreement. Presumably at issue here are concerns over the settlement’s opt-out terms–authors and publishers who don’t opt out have effectively opted in–and the fate of orphan works, books still in copyright but whose copyright owners are unknown.

Orphan works number in the millions and the fear is that this settlement gives Google a powerful blanket license for them. As Pamela Samuelson, director of the Berkeley Center for Law & Technology, recently noted:

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them….The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world….Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions….Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Samuelson concludes that the Book Search agreement as written is essentially a major restructuring of the book industry and an anticompetitive one at that. If that is indeed the case–and Google maintains that it is not–it’s worrisome indeed. Certainly, it’s reason enough for the DOJ to give the agreement a good once-over.

A Google Book Search for "Antitrust Law" Ought to Come in Handy Here…

John Paczkowski — Wed, 29 Apr 2009 16:27:46 +0000

An estimated 70 per cent of the books in the Book Search repository are in-copyright, but out of print. Most of them are, for all practical purposes, “orphan works,” that is, works for which it is virtually impossible to locate the appropriate rights holders to ask for permission to digitize them….The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world….Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions….Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Rob Glaser Talks About Steal–Oops–RealDVD

Kara Swisher — Thu, 02 Oct 2008 19:12:15 +0000

When he debuted his company’s new DVD copier at DEMOfall recently, called RealDVD, RealNetworks’ Rob Glaser did a video interview with BoomTown about it.

And now that RealNetworks (RNWK) and Hollywood are cross-suing each other over RealDVD–in the latest clash over the still-contentious copyright issue that separates the tech and entertainment industries–it’s time for a replay!

The RealDVD software allows a user to rip all the parts of a DVD, including cover art, onto a computer. It costs about $30.

Hollywood studios, which filed a lawsuit in federal court Tuesday, maintain that RealDVD is illegal, and one of their reps called it “StealDVD.”

Haw, haw. This is what apparently passes for clever in Hollywood these days.

But before the entertainment giants’ lawsuit, RealNetworks filed its own suit, claiming it was protecting the fair-use rights of consumers to make copies of content they had purchased.

To avoid violating digital rights management schemes, RealDVD has added its own DRM layer, preventing ripped DVDs from being copied and shared and imposing further barriers to piracy.

But there are still possibilities for illegal ripping, of course, because RealDVD users must promise not to copy videos they don’t own.

No surprise–an honor-system product that makes it even easier to copy DVDs was not exactly welcome by Hollywood, which has been trying to protect its movie revenues from suffering the same fate as the music industry via rampant CD-ripping.

Thus, the typical mainstream media reaction to the inevitability of consumers wanting to digitize content: More lawsuits!

In any case, here’s the video of Glaser talking about RealDVD:

[ See post to watch video ]

Sue. Rent. Rip. Return.

John Paczkowski — Tue, 30 Sep 2008 17:01:55 +0000

Turns out RealNetworks Inc.’s new DVD ripper, RealDVD, is as legal as its creator is litigious. RealNetworks (RNWK) debuted RealDVD this morning and along with it, a preemptive lawsuit against the Hollywood interests that will inevitably attempt to litigate it into oblivion. Brought against the DVD Copy Control Association and a who’s-who of major studios, the suit asks the court to rule that RealDVD complies with the DVD Copy Control Association’s license agreement not only by retaining the “content scramble system” used to protect DVDs, but by enhancing it with an additional layer of digital rights management protection.

“RealNetworks took this legal action to protect consumers’ ability to exercise their fair-use rights for their purchased DVDs,” the company said in a statement. “We are disappointed that the movie industry is following in the footsteps of the music industry and trying to shut down advances in technology rather than embracing changes that provide consumers with more value and flexibility for their purchases. For nearly 15 years RealNetworks has created innovative products that are fully legal, great for consumers, and respectful of the legitimate interests of content creators and rights holders. RealDVD follows in that tradition. We expect to successfully defend our right to make RealDVD available to consumers and consumers’ rights to use it.”

We’ll see, I guess. Clearly the silly little “RealDVD is for saving a DVD you own” disclaimer attached to the software isn’t going to cut it with Hollywood. I imagine we’ll be hearing from the Motion Picture Association of America before the day is out.

Richter Scales' Tom Shields Speaks!

Kara Swisher — Tue, 11 Dec 2007 19:11:06 +0000

I ran into Richter Scales’ Tom Shields at a conference this morning in Mountain View, Calif., and he told me about the video takedown by YouTube of the popular “Here Comes Another Bubble.”

The music video parody by the San Francisco singing group has wowed the Web.

I posted about the removal here.

Shields defends the use of all material in the very funny video, noting it is a satire and they are not making any money it, pointing to the Electronic Frontier Foundation’s explanation of fair use rules in place:

A Wide Berth for Transformative, Creative Uses: Copyright owners are within their rights to pursue nontransformative verbatim copying of their copyrighted materials online. However, where copyrighted materials are employed for purposes of comment, criticism, reporting, parody, satire, or scholarship, or as the raw material for other kinds of creative and transformative works, the resulting work will likely fall within the bounds of fair use.”

Here’s an interview with Shields that BoomTown did today (and posted on YouTube!):

Well, Here Come YouTube's Video ID Tools. Guess That Means Godot Will Be Here Any Minute Now

John Paczkowski — Tue, 16 Oct 2007 07:01:12 +0000

We do a good job of educating users about copyright law.”

–-YouTube CEO Chad Hurley, D5 Conference, 2007

I was very interested to hear Chad and Steve talking about educating consumers about copyright earlier today. Perhaps I’ve given them a graduate degree in copyright law.”

–Viacom CEO Philippe Dauman, D5 Conference, 2007

Google’s apparently finished “educating users about copyright law” and has moved on to the far more important business of making sure not to run afoul of it. After a year of delays and excuses, the company this morning uncrated an antipiracy system for its YouTube video-sharing site.

YouTube Video Identification, as Google colorfully identifies it, matches videos uploaded to YouTube against a repository of legitimate master videos provided by their owners. In the event of a violation, the system notifies the copyright holder, who can then request the video’s removal, its promotion or its ad-supported syndication. Yes, ad-supported syndication. “Like many of these other policies and tools, Video Identification goes above and beyond our legal responsibilities,” YouTube Project Manager David King explained. “It will help copyright holders identify their works on YouTube and choose what they want done with their videos: whether to block, promote, or even—if a copyright holder chooses to license their content to appear on the site—monetize their videos. In implementing this technology, we are committed to supporting new forms of original creativity, protecting fair use and providing a seamless user experience—all while we help rights owners easily manage their content.”

Ah. A “Don’t vaporize, monetize!” program (see “New From Google Labs: Google Big Friggin’ Video Ad”). Surely, just the sort of thing Viacom was hoping for when it filed that $1 billion copyright infringement suit/“mistake” against YouTube earlier this year. Well, it’s a step in the right direction, anyway. Said Viacom general counsel Mike Fricklas, “We’re delighted that Google appears to be stepping up to its responsibility and ending the practice of profiting from infringement.”

Time Warner spokesman Ed Adler offered similar sentiments. “We’re encouraged that they recognize the need to recognize copyright,” he told the Los Angeles Times. “I’m told by our general counsel that there’s still some work to be done before we would say it’s totally sufficient to protect copyright, but we’re encouraged so far.”

But not for long. Because Google’s system doesn’t prevent copyrighted content from being posted to YouTube, does it? But it may well prevent media companies from suing over it.

Well, Here Come YouTube's Video ID Tools. Guess That Means Godot Will Be Here Any Minute Now

John Paczkowski — Tue, 16 Oct 2007 07:01:12 +0000

We do a good job of educating users about copyright law.”

–-YouTube CEO Chad Hurley, D5 Conference, 2007

I was very interested to hear Chad and Steve talking about educating consumers about copyright earlier today. Perhaps I’ve given them a graduate degree in copyright law.”

–Viacom CEO Philippe Dauman, D5 Conference, 2007

But not for long. Because Google’s system doesn’t prevent copyrighted content from being posted to YouTube, does it? But it may well prevent media companies from suing over it.

iPhone Credit, Yip, Yip, Yip

John Paczkowski — Fri, 14 Sep 2007 18:00:49 +0000

[ See post to watch video ]

Fair-Use Economy Generates One-Sixth of U.S. GDP, One-Half of Its BS

John Paczkowski — Thu, 13 Sep 2007 21:23:31 +0000

The entertainment and so-called fair-use-dependent industries may be at odds when it comes to issues of copyright, but apparently they’re of a mind when it comes to hyperbolic claims about their contributions to the U.S. economy.

According to a new report [PDF] from the Computer and Communications Industry Association, industries that rely on copyrights to drive their business contribute $1.3 trillion in annual revenue to the U.S. economy. Industries that rely on “fair use” exceptions to those copyrights contribute $4.5 trillion annually.

“Much of the unprecedented economic growth of the past 10 years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner,” said Ed Black, president and chief executive officer of the CCIA, who cautioned against “unintended consequences of perhaps well-meaning, but overbroad copyright regulation.”

Which is about what you’d expect from a computer-industry lobbying group whose membership includes companies like Google and Yahoo, both of which have benefited from unlicensed usage of copyright materials. But even discounting for trade group overstatement, the idea that fair-use-dependent industries account for a sixth of the nation’s GDP seems ludicrous, as Nick Carr caustically notes over at Rough Type.

Even by the woeful standards of the bespoke research industry, this study is a crock. It’s not just bad; it’s absurd. What the authors have done is to define the ‘fair-use economy’ so broadly that it encompasses any business with even the most tangential relationship to the free use of copyrighted materials. Here’s an example of the tortured logic by which they force-fit vast, multifaceted industries into the ‘fair use’ category: Because ‘recent advances in processing speed and software functionality are being used to take advantage of the richer multi-media experience now available from the web,’ then the entire ‘computer and peripheral equipment manufacturing industry’ qualifies as a ‘fair-use industry.’ As does the entire ‘audio & video equipment manufacturing’ business. And the entire software publishing industry. And the entire telecommunications industry. And–hey, why not?–the entire insurance industry. Stock markets and commodity exchanges? Sure, throw them in, too. … Can’t industry groups make their points without stretching the truth beyond recognition and, in the process, insulting everyone’s intelligence? Fair use deserves better.”