In spite of intense criticism against its patent infringement lawsuit in March, Yahoo filed additional claims against Facebook today.

“Today Yahoo! filed additional claims against Facebook in U.S. District Court in San Jose related to two additional patents on which Facebook infringes. Today’s filing underscores the breadth of Facebook’s violation of Yahoo!’s intellectual property,” said a Yahoo spokesperson in a statement. “As we have stated previously, Yahoo!’s technologies are the foundation of our business that engages over 700 million monthly unique visitors and represent the spirit of innovation upon which Yahoo! is built. We intend to vigorously protect these technologies for our customers and shareholders.”

Facebook had filed its own counterclaims against the Internet portal over various social networking patents and also has recently spent hundreds of millions of dollars for patents and licenses from both IBM and Microsoft to bolster its portfolio.

In its filing, Yahoo’s legal aces got all hot and bothered that Facebook did this, especially the part about handing over piles of dough to others (and not Yahoo).

“However, on information and belief, Facebook lacks a good faith basis for most, if not all, of its counterclaims, particularly those patents that it purchased from others,” read the filing. “All eight of these patents were purchased by Facebook in the past five months, and several of these patents were purchased (independent of any separate technology acquisition or merger) after Yahoo! filed its complaint in this action. On information and belief, many, if not all, of these patents were acquired by Facebook for purposes of retaliation against Yahoo! in this case.”

Uh, duh! (Also, not to be picky, but Yahoo also bought a lot of the patents they are asserting way back when from its acquisition of Overture and did not invent all these innovations, either.)

I am awaiting a response from Facebook, which will probably be along the lines of: Byte me.

[UPDATE: I was right -- here's the comment:

"We remain puzzled by Yahoo's erratic actions. We disagree with these latest claims and we will continue to defend ourselves vigorously."

(Erratic, by the way, means desperate and pathetic in Facebook-speak.)]

Here is the latest filing:

Yahoo Reply to Counterclaims 4-27

Shares rose 2.1 percent to $30.75 after hours on a stronger-than-expected core profit. Oracle’s shares had climbed 17 percent so far this year through Tuesday’s close.

Read the rest of this post on the original site »

Remember when Fortune magazine wrote in September that Facebook co-founder and CEO Mark Zuckerberg had reportedly bagged a bison as part of a “personal challenge” to eat only what he had killed?

Well, proof of that is hard to miss, now that the ginormous mounted head of said dead bison has been hung on the wall of a Facebook conference room used by the social networking site’s COO Sheryl Sandberg.

Zuckerberg placed it there recently as a prank, to surprise his top exec with the installation of the very hairy bison when she was away from Facebook’s Silicon Valley HQ.

And surprised she was when she got back and was faced with the creature, which pretty much takes up the whole room, as you can see above and below.

(And, let me just say on a personal level, like a digital version of the “Murder She Wrote” lady, solving the mystery of this geek-on-bison killing is a whole lot more satisfying than getting a pile of internal Yahoo memos.)

The bison has now been nicknamed Billy and also sports a Facebook-branded baseball cap and occasional hoodie — natch! (My suggestion if you want to use a dead beast metaphor most effectively here would be to clad it all in Google swag.)

While he never confirmed it, Zuckerberg had teased the crowd about the possibility of his hunting prowess at the f8 developers conference this fall in his keynote speech, displaying his Facebook page that had a picture of what he had tagged “Bison Burgers.”

In fact, it’s been quite a lot of bison for the famous entrepreneur since he felled the majestic beast. According to Wikipedia, bison usually weigh 700 to 2,200 pounds, but can be as much as 3,800 pounds. That’s a lot of burgers!

To get them, Zuckerberg learned the most humane approach and then shot the beast in California, after obtaining a hunting license and, presumably, a very big gun.

Clearly, he was serious when he told Fortune in May that “the only meat I’m eating is from animals I’ve killed myself.” Among the early victims, which grew in size, were a lobster, a chicken, a pig and a goat.

At this time, the Winklevii are still roaming the plains — and it would be illegal and just plain mean on Zuckerberg’s part to frag them any more than he already has.

So, he went for the bison, the next biggest beast in his cross-hairs.

Its head will be moved to Facebook’s new headquarters today along with the rest of the company, who will now work in spacious new digs.

Which, I am told, could easily fit a herd of elephants — but let’s not go there.

Tomorrow, Yahoo will announce its second-quarter earnings and, once again, Wall Street is expecting yet another meh performance from the Internet giant.

In his “cheat sheet” report, Citi analyst Mark Mahaney’s take is pretty typical of the sentiment of investors weary of waiting for a rebound in Yahoo’s growth.

“From $15, we believe YHOO shares have upwards bias,” wrote Mahaney, “but we don’t have real conviction.”

That’s become the unfortunate norm for Yahoo, whose management has continued to struggle with a variety of issues, from its ongoing talent drain to an unexpected and still unresolved fight with its main partner in China to the troubles in its search partnership with Microsoft to the overall lack of ability to turbocharge its advertising and other businesses as has been long promised.

While it is certainly not for lack of trying, the prospect of Yahoo CEO Carol Bartz wheeling out another series of excuses for the lack of turnaround and — something many have been looking for most of all — a clearer strategic vision for the company on the earnings call on Tuesday, will surely not produce a dulcet impact on its depressed shares.

The stock has continued to dip well below $15 a share, down almost six percent last week and 13 percent for the last six months.

That’s why some think that Yahoo’s interest in bidding for the Hulu premium video service, which is being sold by its media giant owners, might be just the bold and risky move to get the company centered around.

With the online video ad business growing and the need for Yahoo to focus its many ambitions, some think Hulu could be a key piece in becoming the “premier digital media company” that the Internet giant has recently taken to calling itself.

By doubling down on what Hulu represents — that would be the premium online video business — it’s a fast-growing category Yahoo’s large sales force would be well-suited for.

In addition, a purchase of Hulu could give Yahoo some much-needed talent in the arena, including its CEO Jason Kilar and others.

“Of all the buyers, Yahoo is the most in need of a purchase to change its paradigm,” said one observer. “If it could not pay too much, Hulu would give Yahoo some differentiating that it really needs.”

Of course, paying too much for Hulu is a key consideration mentioned by all who are looking at it, including Google, AT&T, Amazon and others.

How to determine the value of Hulu’s content licenses, both now and later — given that once those rights expire whoever owns Hulu will eventually have to compete in acquiring the often high-priced material from Hollywood — is the biggest question they are asking.

Is that worth $1 billion or $2 billion? Can a new owner keep up the momentum needed to successfully maintain the Hulu business well after those content rights expire? And, of course, which company would be best suited to accomplish this task?

Yahoo certainly has all the potential to be at the front of that line, despite being managed erratically for far too long. But — also as usual — there is the endless debate internally over whether buying it will fix problems.

Whatever happens, most agree that something dramatic needs to happen at Yahoo, rather than the continual story of flatness that has been coming out of the company for far too long.

And we’ll all see if that’s improved after the close of the market tomorrow, when Wall Street is expecting Yahoo to report revenue of $1.11 billion on earnings of 18 cents.

That’s a revenue decline of two percent, which is not great, especially considering Google’s strong performance last week. Then again, it’s better than the first quarter’s six percent drop in revenue for Yahoo.

Like I said: Meh.

Here’s a handy helper for those following the fate of the Hulu premium online video service, whose noisy efforts to sell itself have gotten a lot of attention of late:

“In preliminary talks” = “hawking itself to one of a half dozen big moneybag tech companies who will visit with Hulu’s bankers and management to see its presentation at Morgan Stanley’s office in Century City in Los Angeles.”

Last Friday, for example, that meant a look-see for Microsoft execs, to show the software giant the story of how paying top dollar for the popular Hulu would be a great investment.

This week, sources said, Yahoo will get the expected gander at the books too, among the other companies targeted by Hulu as part of a sales process in its very early stages.

Among those companies on the short list, sources said, along with Microsoft and Yahoo are: Google, Verizon, AT&T and Amazon.

None of these should come as a surprise, since they all have a big interest in the digital distribution of content business.

Google is perhaps the most interesting and difficult of the group, due to both its massive YouTube unit and the even more massive interest by government regulators about its disturbing massiveness.

Amazon is the company that seems most suited as a Hulu buyer, since it already makes its business selling and distributing content. In addition, Hulu CEO Jason Kilar was a former exec — bringing a certain level of familiarity and presumably much less of the grumpy disgruntlement that he experienced with Hulu’s current media giant owners.

Microsoft seems like the longest shot and least enthusiastic, although it certainly could afford it.

As for Yahoo: Good lord, it needs something sexy to tell weary investors.

Not in the initial round, but other possible acquirers Hulu is targeting: Facebook, Netflix, Samsung and Liberty Media.

And definitely not among those kicking the tires: Disney, News Corp. and Comcast, the trio of partners who own Hulu, along with Providence Equity Partners.

The big question, of course, is whether media-focused Apple — a notorious buyer of almost nothing — would be interested in Hulu.

These blind dates with the best possible buyers will presumably give each insight into Hulu’s business and give Hulu information on what they are looking for.

Sources who have heard the pitch said Hulu is positioning itself as an inevitable competitor to cable, which seems an odd position to take, unless it can get regular access to the kind of top-drawer content that consumers want.

And that will be the most important issue for anyone buying Hulu: The time and terms of rights to the television and movie content on the site, which has been a critical part of its success.

Buyers I have interviewed said Hulu has to offer at least an 18-month license for its content and a pile of rights to hit shows to differentiate itself from competitors.

As Peter Kafka wrote, Hulu buyers would indeed get exclusive content, but with strings attached.

He also noted that the latest content licenses for Hulu’s owner/partners — Disney’s ABC and News Corp.’s Fox — have recently been completed, deals that will stay intact if Hulu is sold.

Unlike Netflix, which has had to pay top dollar for a small pile of premium content while deftly using a large archive of older content to attract subscribers, Hulu’s success has had a lot to do with more access to popular current shows offered by its media giant owners.

Those shows include TV hits such as “The Office” and “Glee.”

That access has become a point of contention with those owners, who have differed with Hulu management about what comes next for the mostly advertising-supported site, even though its slick product has been a clear hit with consumers.

Of course, some speculate that Hulu might not sell at all, just as it never went public as it had said it might do previously. In that case, it will be interesting to see what will become of Hulu once the music stops.

(And, if anyone would like to email me the Hulu presentation or notes on it, please do, so I can formulate a bid myself!)

But, until this deal churns slowly, leakily and loudly forward — let’s enjoy some apt Hulu content. As usual, the fun version of ABBA’s “Dancing Queen” by the kids from “Glee” was not available on the site.

Thus, I selected frequent “Glee” guest star Gwyneth Paltrow belting out Joan Jett’s “Do You Wanna Touch Me” on the show, as a good alternate metaphor for the sales process:

They shouldn’t be.

Pandora has always been up front about the fact that royalties are its biggest expense. And that those fees increase in lockstep with the music service’s popularity.

But while spending half of every dollar it brings in on royalties is a burden, it could be worse. A lot worse.

Prior to the summer of 2009, when Pandora and other Web services negotiated a new royalty deal, Pandora’s music bill was more than 100 percent of its revenues.

Check out this table from Pandora’s S-1, which breaks out each line item in its P&L as a percent of revenue. Notice how brutal the first two quarters of 2009 were. And see how much more tolerable (or at least less awful) they became after July 2009, when Pandora got its new rates (click image to enlarge):

See? Now 50 percent doesn’t look that bad.

And while Pandora’s music fees are hefty, the system that generates those bills is really one of the company’s strengths.

That’s because unlike other music services, from Apple’s iTunes to Spotify, Pandora doesn’t have to negotiate with individual labels and publishers to use their stuff.

Instead, it takes advantage of a U.S. law that created a “compulsory license” for Internet radio. That allows anyone to stream any recorded music they want, as long as they’re willing to pay for it. And as long as they’re functioning as a “Webcaster” and not an on-demand “interactive service.”

The advantages of using the compulsory license are huge. It means Pandora never had to ask the big labels for permission to use their stuff, or pay out giant advances or equity stakes to get a deal done.

While the licenses do come with restrictions–that’s why Pandora doesn’t let listeners request individual songs, and limits the number of times users can skip a song per hour, etc.- they haven’t dissuaded some 80 million people from using the service.

Those licenses don’t exist outside of the U.S., which is one reason Web radio services are such a rarity everywhere else, and why Pandora may struggle with international expansion.

And the fees that Pandora does pay will escalate each year until 2015, when it has to negotiate a new royalty agreement with the music industry.

It’s always possible that the rates will get significantly worse for Webcasters then, and that Pandora ends up in the shape it was in prior to the summer of 2009.

But for the next four years, at least, Pandora thinks it can work with the music bills its users are generating. Now we’ll see if investors agree.

That’s what Google did today, announcing that its Chrome browser will ship without native support for H.264, the video specification on which the Web is arguably standardized (certainly it’s the one prefered by folks like Apple and Microsoft). Instead it will support WebM, Google’s open-source, royalty-free codec, and Theora, another open compression developed by the Xiph.org Foundation.

“We are changing Chrome’s HTML5 video support to make it consistent with the codecs already supported by the open Chromium project,” Google said in a post to the Chromium blog. “Specifically, we are supporting the WebM (VP8) and Theora video codecs, and will consider adding support for other high-quality open codecs in the future. Though H.264 plays an important role in video, as our goal is to enable open innovation, support for the codec will be removed and our resources directed towards completely open codec technologies.”

A ballsy move on Google’s part and one that will certainly spark off the video codec contretemps once more. Sadly, it’s going to make the the HTML 5 transition even more messy than it already is. Right now, video can be encoded in H.264 and served up to pretty much any browser or mobile platform–using a Flash wrapper if necessary. But once Google ends support for H.264, video producers will have to encode their content a second time to play natively in Chrome.

Which seems unfortunate. Particularly because Google is billing its decision as a move to free, open standards and away from proprietary ones like H.264 that must be licensed. By ending support for H.264, Google is actually encumbering video producers with additional costs. Said SmugMug CEO Don MacAskill, “I’m left with two choices: Gulp and double my costs on an unknown tech, or return to Flash as primary solution. Ugh. Thanks, Google.”

But Flash isn’t free and open standard, either. If Google’s goal is to “enable open innovation” shouldn’t it be dumping Flash from Chrome as well? Evidently, that’s not part of the master plan which includes Adobe as a WebM partner …

PREVIOUSLY:

• Google’s “Royalty-Free” WebM Video May Not Be Royalty-Free for Long
• Google Open Sources VP8 Video Codec. Will Apple, Microsoft and Intel Use It?

The third round was led by Balderton Capital, with existing investors Google Ventures and Highland Capital Partners also participating. To date, the company has raised roughly $20 million.

SCVNGR lets users check-in to locations using their Android phone or iPhone, much like Foursquare does. The gaming component is that users earn rewards by participating in challenges that are often designed to bring gaming elements to real life.

A challenge may be something as easy as scanning a QR code or checking in, or as complicated as making origami art out of leftover foil from a burrito (and then taking a picture to prove it). A reward may include a discount from a local retailer or restaurant, or even a free cup of coffee (perhaps for multiple check-ins).

Seth Priebatsch, who calls himself the chief ninja of SCVNGR, says the capital comes after a year of achievements for the Cambridge, Mass.-based company.

After its first consumer-based apps launched this summer, it garnered half a million users after 20 weeks and is coming up on one million users soon. That builds on its enterprise business, which allows local businesses, universities, museums and others to create their own challenges for their customers or students. Those businesses often must license the software from SCVNGR.

UPDATE: Priebatsch declined to say what the company’s valuation was in the round, but TechCrunch reports that it is hearing from one source that it was raised at a valuation of just over $100 million.

Priebatsch said the capital will support the 51-employee company’s growth, and will also be spent on exploring international opportunities and the development of further game mechanics that can make the apps more fun, rewarding and entertaining. The app will also soon come to the BlackBerry platform.

Priebatsch argues he’s building something much more compelling than a pure check-in app. “The appeal of a check-in as a standalone entity is really compelling for only a small portion of the total audience out there. This is something fun, unique, and something social. That’s a no-brainer.”

Consider this: In 2009, HTC, Samsung and LG accounted for 67 percent of Windows Mobile shipments. In the third quarter of 2010, those same companies accounted for 44 percent of Android handset shipments. Motorola and Sony Ericsson, also longtime Windows Mobile licensees, accounted for an additional 30 percent.

With Android commanding that kind of OEM attention, Microsoft is going to have to work harder than ever to rewrite the weak mobile story it’s written for itself over the past few years.

“To ensure Window Phone 7’s success, Microsoft must sign up virtually all of the name brand smartphone vendors who deserted Windows Mobile for Android when Microsoft failed to modernize the operating system for three years,” says Needham analyst Charlie Wolf. “Microsoft has signed up three of them and has two to go. Google would argue that it has the upper hand in this tussle because it licenses Android for free while Microsoft charges a licensing fee (albeit a small one compared to its PC licensing fees). But Microsoft simply has more at stake.”

And it knows it. Which is why it’s putting so many marketing dollars into Windows Phone 7.

Says Wolf, “We suspect the company will devote a material portion of [its marketing budget] to buy the support of the leading smartphone manufacturers.”

The Kayak iPad app

Kayak had revenue of $128 million for net income of $6.2 million through Sept. 30 of this year, up from $86.6 million in revenue and net income of $10.4 million last year. The company significantly increased its marketing spending in that period to $69.1 million from $36.0 million. It has been profitable since 2008.

Kayak is in a bit of a precarious position, since it licenses fare information from ITA Software, which Google has agreed to buy. This is a significant expense; Kayak said in the filing it expects to pay ITA $21 million from the beginning of 2010 to the end of 2012. The company admitted that Google messing with ITA could have a “significant negative effect” on its business.

However, Kayak sought to declare its independence from search, saying very little of its traffic comes from Google and the like. The company contended this is because its users are loyal to its brand. So far this year, 72 percent of Kayak queries came from direct visitors to its site, 15 percent from advertising and only eight percent from users referred by search engines. Kayak had 469 million user queries through Sept. 30, with year-over-year growth of 37 percent.

Kayak also has a contract to show Google ads. The filing reports that 15 percent of Kayak advertising revenue so far this year has come from Google, and eight percent of total revenue (the other source of Kayak revenues is referrals).

Kayak is trying to push itself as a mobile growth story, with four million downloads of its mobile apps so far. The company had joked earlier this month that it was putting out its own phone (riffing on rumors of a “Facebook phone”) called the KPHONE and including features like an “actual igniting signal flare” and automatically dialing of your mom every 15 minutes “because you are a terrible person and seriously you never call.” Obviously that sense of humor doesn’t come through in the S-1.

Called as a witness for Oracle, Catz reiterated an earlier point made by Oracle CEO Larry Ellison, saying that had SAP licensed the materials that its TomorrowNow subsidiary ultimately pilfered, it would have cost “billions.” She also reminded SAP’s legal team that her email on SAP/TomorrowNow as a competitive threat was written without knowing about TomorrowNow’s copyright infringement.

Worse, she dismissed SAP’s offer of $40 million in damages as laughable. “SAP paying us damages of $40 million would be a reward for their bad behavior. “It’s like taking someone’s $2,000 watch and hocking it for $20, and then offering to give us $20. It’s crazy. It completely undervalues the entire basis for our industry.”

A powerful jab, and one that’s making the rounds in media reports on the trial today.

PREVIOUSLY:

• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Sources in a position to know tell me that the PIs rumored to be searching for Apotheker are actually PSs–process servers, agents charged with delivering subpoenas to their intended recipient. And, as federal law dictates, their search extends no farther than 100 miles from the location of the trial, because if Apotheker is outside that 100-mile radius, they can’t serve him. And Oracle can’t compel him to testify. Which means it’s not really worth the company’s time or effort to hire Dog the Bounty Hunter to track him down in some Schwarzwald hideout.

As Oracle attorney David Boies said during a press conference after Monday’s proceedings, “Because of his role, we think it’s important for the jury to be able to see him live. But evidently, the embarrassment of avoiding trial is less than the embarrassment of testifying. We are trying to serve him. Still.”

PREVIOUSLY:

• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

On the stand in an Oakland, Calif., courtroom today, Ellison was such a picture of moderation and restraint that you almost wondered if his handlers had shot him up before his appearance–like sedating a dog for air travel. As one SAP rep told me, Ellison “was anti-climatic given his vituperative statements of the last weeks.”

Which is true. But his testimony was still quite damning–to my ears anyway. For one thing, he said that Oracle could have charged SAP $4 billion to license the programs that its TomorrowNow subsidiary wrongfully downloaded. For another, he said Oracle would have had trouble paying its employees if it allowed its rivals unfettered access to the software and support libraries at issue in this case.

“I’m not sure we would go out of business but pretty close to going out of business,” Ellison said during questioning by attorney David Boies. “If they could get that software for nothing, we’d have a hard time paying 100,000 employees.”

If that was the case, then why didn’t Oracle make a bigger stink over SAP’s acquisition of TomorrowNow when it was first announced? SAP’s legal team was quick to pick up on this and hammered Ellison, claiming there’s “not a shred of documented evidence” demonstrating Oracle’s concerns. But they didn’t get much of anywhere with that because it turned out there is some.

“When SAP announced the TomorrowNow acquisition,” Ellison said, “I made a public statement….I thought they might cheat around the edges in terms of our copyrights…and I publicly warned them that while they have every right to support our software, they have to respect our intellectual property–[they] can’t just redistribute it without paying for it.”

And, indeed, Ellison did do this during the company’s 2005 analyst day. “SAP has every right to provide support for PeopleSoft applications as long as they don’t violate our intellectual and contractual property rights,” he said. “It might make it awkward for them. That’s our intellectual property, and they should be cautious.”

Driving those remarks was Ellison’s fear at the time that with TomorrowNow, SAP might do Oracle real harm. “I thought this was a major program with a huge potential to do severe damage to Oracle,” Ellison said today, adding that his vision of how SAP planned to go about it wasn’t quite how things played out. “It was a brilliant idea to take our customers, but to execute it properly they had to go out and hire hundreds, if not thousands, of engineers to maintain PeopleSoft and JD Edwards and Siebel. That was going to be expensive. I certainly didn’t think they would simply take our intellectual property and then resell it to their own customers. I never thought that could happen.”

SAP’s attorney, Tharan Lanier, challenged Ellison on these points as well, suggesting Oracle is exaggerating when it claims that TomorrowNow’s infringement jeopardized as much as 20 to 30 percent of Oracle’s customers from its acquisition of PeopleSoft and 10 percent of those from the later acquisition of Siebel Systems. And in the end, Ellison conceded that only about 350 customers were lost as a result of TomorrowNow’s infringement. But he also managed to again suggest that potential losses were far, far greater.

“I think taking our intellectual property is a two-edged sword,” he said. “For [SAP] it means they have access to all our engineering output. They have regulatory updates at the same moment we have them. They have new versions of our software at the same time we have them. They have bug fixes at the same time we have them. So they should be able to provide the same quality of support that we’re providing except that they’re doing it at a very low cost, while Oracle bears the cost of all that engineering.”

The other side of that sword is running an irrational risk by taking our software. That’s a risk I certainly would never, ever undertake.”

PREVIOUSLY:

• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

[Image credit: Pre-Ellison Samurai image by Artem Mirolevioch]

It’s not clear why Microsoft (MSFT) inked such a licensing deal. But it’s worth noting that at least a few of the patents included are cited in a lawsuit Acacia (ACTG) filed earlier this year against Apple (AAPL), Research In Motion (RIMM), Motorola (MOT) and a bunch of other smartphone makers.

Now, Microsoft wasn’t named in that suit. But it is launching a brand new mobile OS on Monday, which makes the timing of this Acacia deal interesting. At the very least, it makes you wonder if Acacia, which is often decried as a patent troll, has been threatening to add Microsoft’s name to the infringer list.

Just as important: Apple (AAPL) appears to have opened the door for programs originally created using Adobe’s Flash. And it seems to have given the go-ahead to Google’s AdMob mobile ad network, which it looked ready to block earlier this year.

Apple says it will finally publish guidelines for app approval at its iTunes store “to help developers understand how we review submitted apps.” That may mollify developers’ long-standing complaint about seemingly arbitrary rejections at the store.

But Apple’s other changes seem aimed at making peace–or at least establishing a détente–with corporate rivals Google and Adobe. And perhaps mollifying federal regulators asking antitrust questions.

Some tech observers, like Hank Williams, believe that Apple’s statement regarding 3.3.1 and “developer tools” means that the company will now allow developers to port applications originally designed in Adobe’s (ADBE) Flash over to the iPhone/iPod/iPad platform. If so, that’s a big deal, and investors believe that’s the case–Adobe is up 7 percent this morning.  But it’d be nice to confirm that with Apple, too, so I’ve asked.

Meanwhile, note that section 3.3.9 of the agreement is the one that dealt with mobile app data, which made Google’s (GOOG) AdMob and other advertising and analytic companies upset earlier this year. Based on the changes Apple has made, it appears to have finally given Google the all clear to sell ads on its apps, by removing a caveat that only allowed “independent” ad networks to collect performance data. But third-party analytics companies like Flurry, and perhaps Comscore (SCOR), still appear to be shut out.

UPDATE: Here’s the text of the three changes Apple has made to its developer’s license:

3.3.1 OLD:
3.3.1 Applications may only use Documented APIs in the manner prescribed by Apple and must not use or call any private APIs. Applications must be originally written in Objective-C, C, C++, or JavaScript as executed by the iPhone OS WebKit engine, and only code written in C, C++, and Objective-C may compile and directly link against the Documented APIs (e.g., Applications that link to Documented APIs through an intermediary translation or compatibility layer or tool are prohibited).

3.3.1 NEW:
3.3.1 Applications may only use Documented APIs in the manner prescribed by Apple and must not use or call any private APIs.

3.3.2 OLD:
3.3.2 An Application may not itself install or launch other executable code by any means, including without limitation through the use of a plug-in architecture, calling other frameworks, other APIs or otherwise. Unless otherwise approved by Apple in writing, no interpreted code may be downloaded or used in an Application except for code that is interpreted and run by Apple’s Documented APIs and built-in interpreter(s). Notwithstanding the foregoing, with Apple’s prior written consent, an Application may use embedded interpreted code in a limited way if such use is solely for providing minor features or functionality that are consistent with the intended and advertised purpose of the Application.

3.3.2 NEW:
3.3.2 An Application may not download or install executable code. Interpreted code may only be used in an Application if all scripts, code and interpreters are packaged in the Application and not downloaded. The only exception to the foregoing is scripts and code downloaded and run by Apple’s built-in WebKit framework.

3.3.9 OLD:
3.3.9 You and Your Applications may not collect, use, or disclose to any third party, user or device data without prior user consent, and then only under the following conditions:

- The collection, use or disclosure is necessary in order to provide a service or function that is directly relevant to the use of the Application. For example, without Apple’s prior written consent, You may not use third party analytics software in Your Application to collect and send device data to a third party for aggregation, processing, or analysis.

- The collection, use or disclosure is for the purpose of serving advertising to Your Application; is provided to an independent advertising service provider whose primary business is serving
mobile ads (for example, an advertising service provider owned by or affiliated with a developer or distributor of mobile devices, mobile operating systems or development environments other than Apple would not qualify as independent); and the disclosure is limited to UDID, user location data, and other data specifically designated by Apple as available for advertising purposes.

3.3.9 NEW:
3.3.9 You and Your Applications may not collect user or device data without prior user consent, and then only to provide a service or function that is directly relevant to the use of the Application, or to serve advertising. You may not use analytics software in Your Application to collect and send device data to a third party.

Release below:

The App Store? has revolutionized the way mobile applications are developed and distributed. With over 250,000 apps and 6.5 billion downloads, the App Store has become the world’s largest mobile application platform and App Store developers have earned over one billion dollars from the sales of their apps.

We are continually trying to make the App Store even better. We have listened to our developers and taken much of their feedback to heart. Based on their input, today we are making some important changes to our iOS Developer Program license in sections 3.3.1, 3.3.2 and 3.3.9 to relax some restrictions we put in place earlier this year.

In particular, we are relaxing all restrictions on the development tools used to create iOS apps, as long as the resulting apps do not download any code. This should give developers the flexibility they want, while preserving the security we need.

In addition, for the first time we are publishing the App Store Review Guidelines to help developers understand how we review submitted apps. We hope it will make us more transparent and help our developers create even more successful apps for the App Store.

The App Store is perhaps the most important milestone in the history of mobile software. Working together with our developers, we will continue to surprise and delight our users with innovative mobile apps.

Financial terms of the agreement weren’t disclosed. The film company said they would supply the monthly-fee movie-rental company with five to 10 films a year, generally a few months after their release on DVD. The film industry has employed a strategy of delaying releases to online platforms in order to protect its traditional theatrical and DVD revenue streams.

Nu Image/Millennium is best known for action and thriller films including “The Expendables” and “Brooklyn’s Finest.”

Read the rest of this post on the original site »

On Friday NTP filed patent infringement lawsuits against Apple (AAPL), Google (GOOG), HTC, LG Electronics, Microsoft (MSFT) and Motorola (MOT) claiming–just as it did in the suit that nearly shut down RIM’s BlackBerry service–that their mobile wireless email devices infringe upon its technology. The suit asks that the companies be prevented from selling and operating such products and slapped with punitive damages (see document below).

“Use of NTP’s intellectual property without a license is just plain unfair to NTP and its licensees,” NTP co-founder Donald Stout said in a statement. “We took the necessary action to protect our intellectual property.”

And wring every last bit of value out of it. NTP’s key patents expire in 2012, so this really seems a last-ditch attempt to use them to win one last big payday.

And if it does, the big names in the smartphone industry could find themselves in the same unpleasant position RIM (RIMM) Chairman and co-Chief Executive Jim Balsillie found himself in back in 2006.

“It’s a lot of money for patents that will not survive, for sure, but that doesn’t do us any good if there’s a court that doesn’t wait,” Balsillie said after agreeing to a $612.5 million settlement with NTP. “No question, we took one for the team here. It wasn’t a good feeling to write this kind of check.”

070810ntpapplesuit –

[Image credit: Bob MacNeil / WIPO Magazine]

Google (GOOG) made the announcement in understated form, by updating a blog post: “We are very pleased that the government has renewed our ICP license and we look forward to continuing to provide web search and local products to our users in China.”

The move follows Google’s concession last month, when it stopped automatically redirecting Chinese surfers to an uncensored, Hong Kong-based version of its search engine. Now instead of an automatic redirect, Google has added a button linking Google.cn users to the Hong Kong site.

After what he considered weeks of unfair press coverage and running down of Microsoft (MSFT), the software giant’s Corporate VP of Corporate Communications, Frank Shaw, posted a pugnacious corporate blog entry today that trotted out some impressive numbers about Microsoft’s business.

Of course, he also took the opportunity to put up some not-so-much figures about competitors such as Apple (AAPL), Netflix (NFLX), Salesforce.com (CRM) and, of course, Google (GOOG).

My favorite dig is the stat on the “percent chance that Salesforce.com CEO [Marc Benioff] will mention Microsoft in a speech, panel, interview, or blog post.” The answer, natch: 100!

As it turns out, that was a follow-up to a very sharply worded letter Shaw sent out to communications teams across Microsoft (MSFT) earlier this month, obtained by BoomTown, in which he noted at the start:

“It has been a rough couple of weeks for us from a coverage standpoint. It seems like every time I turn on the computer, or talk to a reporter, or pick up a publication at home, or do a scan of my RSS feeds or Twitter client that I see more stories and opinions about the challenges we have, and how great some of our competitors are doing. iPad this, Droid that, sheesh.”

Sheesh? Who says that anymore?

Still, I like his gumption in using it! Thus, Shaw–who is an active blogger and Twitter poster–is apparently mad as heck and not going to take it anymore!

Here’s the blog post below, followed by the internal email Shaw sent (apparently inspired by the landscape at our eighth D: All Things Digital conference earlier this month):

Microsoft by the numbers

25 Jun 2010 12:30 PM

You probably saw the news this week that we’ve sold 150 million Windows 7 licenses in 8 months. That’s more than 600,000 per day. And, perhaps fittingly for a product called Windows 7, it adds up to 7 copies every second of every day since launch.

As a communications guy, I’m generally most comfortable with words. But since Microsoft is a pretty numbers-driven company, the Windows 7 milestone got me thinking about some *other* numbers, too.

Of course, numbers are only one dimension of a story. And we live in a hyper-competitive industry, with loads of challenges to go along with loads of opportunity. All the same, with Windows 7, Office 2010, Bing, Xbox 360, Kinect, Windows Phone 7, our cloud platform, and many other products, services and happy customers, 2010 is shaping up as a huge year for us.

So, without further ado, a few of my favorite numbers:

1

150,000,000
Number of Windows 7 licenses sold, making Windows 7 by far the fastest growing operating system in history.[source]

2

7.1 million
Projected iPad sales for 2010. [source]

58 million
Projected netbook sales in 2010. [source]

355 million
Projected PC sales in 2010. [source]

3

>10
Percentage of US netbooks running Windows in 2008. [source]

96
Percentage of US netbooks running Windows in 2009. [source]

4

0
Number of paying customers running on Windows Azure in November 2009.

10,000
Number of paying customers running on Windows Azure in June 2010. [source]

700,000
Number of students, teachers and staff using Microsoft’s cloud productivity tools in Kentucky public schools, the largest cloud deployment in the US. [source]

5

16 million
Total subscribers to largest 25 US daily newspapers. [source]

14 Million
Total number of Netflix subscribers. [source]

23 million
Total number of Xbox Live subscribers. [source]

6

9,000,000
Number of customer downloads of the Office 2010 beta prior to launch, the largest Microsoft beta program in history. [source]

7

21.4 million
Number of new Bing search users in one year. [Comscore report--requires subscription]

8

24%
Linux Server market share in 2005. [source]

33%
Predicted Linux Server market share for 2007 (made in 2005). [source]

21.2%
Actual Linux Server market share, Q4 2009. [source]

9

8.8 million
Global iPhone sales in Q1 2010. [source]

21.5 million
Nokia smartphone sales in Q1 2010. [source]

55 million
Total smartphone sales globally in Q1 2010. [source]

439 million
Projected global smartphone sales in 2014. [source]

10

9
Number of years it took Salesforce.com to reach 1 million paid user milestone. [source]

6
Number of years it took Microsoft Dynamics to reach 1 million paid user milestone. [source]

100%
Percent chance that Salesforce.com CEO will mention Microsoft in a speech, panel, interview, or blog post.

11

173 million
Global Gmail users. [source]

284 million
Global Yahoo! Mail users.[source]

360 million
Global Windows Live Mail users.[source]

299 million
Active Windows Live Messenger Accounts worldwide. [Comscore MyMetrix, WW, March 2010--requires subscription]

1
Rank of Windows Live Messenger globally compared to all other instant messaging services. [Comscore MyMetrix, WW, March 2010 - requires subscription]

12

$5.7 Billion
Apple Net income for fiscal year ending Sep 2009. [source]

$6.5 Billion
Google Net income for fiscal year ending Dec 2009. [source]

$14.5 Billion
Microsoft Net Income for fiscal year ending June 2009. [source]

$23.0 billion
Total Microsoft revenue, FY2000. [source]

$58.4 billion
Total Microsoft revenue, FY2009. [source]

fxs

It has been a rough couple of weeks for us from a coverage standpoint. It seems like every time I turn on the computer, or talk to a reporter, or pick up a publication at home, or do a scan of my RSS feeds or Twitter client that I see more stories and opinions about the challenges we have, and how great some of our competitors are doing. iPad this, Droid that, sheesh. Even BusinessWeek got into the act, taking some unfair shots at Natal under the guise of looking at our consumer strategy all up. Man, when someone is beating on Natal prior to E3, you can bet we’ve got momentum against us.

Sitting there at the All Things Digital conference last week and hearing from our competitors really got me thinking, though. What is our differentiation? Why do we make certain decisions? What drives the way we think about business and technology? The morning after the Steve Jobs q&a (which everyone should watch), I dragged myself out of bed to go for a run. As I’d driven into the hotel, I noticed with a sinking feeling that there were lots of hills. I asked the desk clerk if they had a jogging map. They did not. I asked if he could point me a direction that did not have a bunch of hills. He laughed and pointed “up” the driveway and said that if I turned left there would be a nice running path. “I drove in that direction,” I said. “Seems like it’s uphill.” He shrugged, and away I went. Up.

And to keep my mind off the elevation gain, I was thinking about that previous question–what drives Microsoft? Coming up the second hill, I got it. Fundamentally, we believe that we have the opportunity to make life better for billions of people around the world through our products and services. Not millions, not tens of millions, but billions. We started with the idea of a computer on every desktop, and even though the computer looks a lot different today than it did those years, and even though the developed world probably does have a computer on every desk, there are still billions more to go, and we are going to get there. And when you start thinking about serving billions, which we do, we’re playing a game that nobody else in the industry is. I don’t know about you, but I come to work thinking about what I can do to help w/ that big goal. And it’s not all altruism and unicorns, when we do a great job of creating products that make life better for billions, it makes us better as a company, we sell more, we learn more, our partners do better, we do better. And when you have big dreams and big ambitions (like we do) and when you set the bar high (which we do) then sometimes we don’t get over the bar. There are people in the world that see that and call it failure; but failing to hit the mark doesn’t mean quitting. That’s part of our culture, too.

The run back to the hotel was easier. I even scrambled up a bluff next to the path (imagining the theme to “Rocky” in my head) and stood looking out over the Pacific for a bit. And I thought about our challenges, internal and external. External is easy. Internal is harder.

There is a saying I’ve heard a bunch since I’ve been at Microsoft: “Hope is not a strategy.” Heck, I’ve used it myself, and felt pretty superior while saying it, since I was talking about something I didn’t really own. But standing on the bluff, I wondered.

In my last mail, I referenced the need for us all to be comfortable in the gap between what is and what we desire to create. If we simply live in what we have, we become cynics. And if hope is not a strategy, then neither is cynicism, and we have lots of cynics among us. It is a challenge, especially for those of us who help tell our story. I often see it used, and use it myself, to cover up the pain of not meeting a goal, or seeing a product/service be ill-received by the market. If I am able to mock and sneer, then nobody outside the company can make me feel worse at setbacks and even failures.

As the evangelists for the company, we must guard against this. Hope can’t be a strategy, but it (and its cousin belief) is a needed ingredient in any success. Think about this for a bit. Each and every one of us needs to be grounded in our challenges and our wins. Right now, we are massively over-indexed in thinking and knowing about our losses and challenges. But what of our wins?

At the conference later that day, I had a chance to engage in a spirited and mostly friendly discussion with some folks who thought we were doing a crap job all up. Stock price flat, no iPad, etc. Instead of shrugging and agreeing, I talked about our wins and our momentum. We’ve built a huge server business over the last decade, something else nobody has done. Windows 7 sales are up about 39 percent year over year, against a huge base. Office 2010 beta largest ever, Office is in the cloud. Bing is one year old, 4 points of market share–nobody has grown search market share against Google but we are doing it. They are copying our look, our home page. New Hotmail is driving them to offer something other than threaded email for Gmail. Xbox Live has 23 million users–again, only two companies in the last decade have built subscription services like this (Netflix is the other). Windows Azure has 10,000 paying customers, we just announced 700k deployment of live@edu, probably the largest cloud deployment in the world. Natal is coming, it’s cool. Yes, we want to (and will) do better in phones. Yes, we want to (and will) have more cool thin slate/tablet/other form factor devices that run Windows. I’ll tell you, while I don’t think I created any true believers, I did force people to think differently about Microsoft and what we’re doing, and I call that a win.

This is our job. We don’t just represent the products and services we work on, we represent the company all up. Be ready to tell that story. Tell it to your co-workers here at Microsoft, to your family and friends, to members of the media. They know about our challenges, they don’t know about our wins and momentum. So tell them.

fxs

Backstory: Apple’s original license agreement, released in April, appeared to effectively ban third-party ad networks from selling “in-app” ads on its gadgets by crippling their ability to track user data. In the absence of any clarification from Apple (AAPL), it seemed to me (and others) that the company was set on locking up its platform from advertising competition.

But last week at the D8 conference, Jobs either changed his stance or spelled it out, depending on your perspective: Apple wasn’t interested in banning rivals to its iAd platform, he said, it just wanted to cripple third-party analytics companies like Flurry.

And yesterday, Apple changed its legal language to reflect Jobs’s words. Here’s the revised language for section 3.3.9 of Apple’s developer agreement, concerning the use of data collection:

3.3.9 You and Your Applications may not collect, use, or disclose to any third party, user or device data without prior user consent, and then only under the following conditions:

- The collection, use or disclosure is necessary in order to provide a service or function that is directly relevant to the use of the Application. For example, without Apple’s prior written consent, You may not use third party analytics software in Your Application to collect and send device data to a third party for aggregation, processing, or analysis.

- The collection, use or disclosure is for the purpose of serving advertising to Your Application; is provided to an independent advertising service provider whose primary business is serving mobile ads (for example, an advertising service provider owned by or affiliated with a developer or distributor of mobile devices, mobile operating systems or development environments other than Apple would not qualify as independent); and the disclosure is limited to UDID, user location data, and other data specifically designated by Apple as available for advertising purposes.

If you compare and contrast to Apple’s earlier version, you’ll see the message is clear: It’s okay to collect user data to help sell ads–though you will need to get Apple’s permission to do so.

UPDATE: One important caveat here: It appears as if Apple may still be limiting its biggest potential rival–Google’s AdMob. Note the language about only allowing “independent” ad-serving companies to collect data: “For example, an advertising service provider owned by or affiliated with a developer or distributor of mobile devices, mobile operating systems or development environments other than Apple would not qualify as independent.”

Google (GOOG) certainly qualifies as a developer/distributor of mobile operating systems, right? The language also appears to disqualify potential rivals–if, for instance, Microsoft (MSFT) tried entering the mobile display market. I’ve asked Apple for comment, but I’m not expecting any.

Meantime, Apple’s language does appear to be good news for smaller competitors like Greystripe, Millenial Media and Medialets–though it may make them less attractive to potential acquirers

Here are Jobs’s own words on the topic last week at the D8 conference.

]]> http://allthingsd.com/20100608/apple-makes-good-on-steve-jobs-promise-invites-other-advertisers/feed/ 0 http://allthingsd.com/20100524/twitters-free-love-era-comes-to-an-end-time-for-developers-and-publishers-to-pay-up/ http://allthingsd.com/20100524/twitters-free-love-era-comes-to-an-end-time-for-developers-and-publishers-to-pay-up/#comments Mon, 24 May 2010 22:32:51 +0000 Peter Kafka http://mediamemo.allthingsd.com/?p=19880 Twitter isn’t just booting other ad networks out of its stream. It now plans to tax some start-ups and publishers that are making money from the service.

That’s a pretty significant change for the company, which has previously allowed anyone to do just about anything with its data, without asking for a cent.

But that’s over, based on the new terms of service the company released today. The relevant excerpt:

In cases where Twitter content is the basis (in whole or in part) of the advertising sale, we require you to compensate us (recoupable against any fees payable to Twitter for data licensing).

That’s potentially a big deal. It’s also quite vague. And after talking to Twitter COO Dick Costolo this afternoon, I’m pretty sure that vagueness is intentional. Because I’m not sure Twitter knows exactly how it wants to proceed.

But I did extract some specifics from Costolo:

• Twitter is only focused on sites and services that sell ads against its stream. So if your service doesn’t generate revenue, or does so using something other than ads (i.e., subscriptions, analytics packages, etc.), you’re fine.
• If you do have to pay up, there are a couple of different ways to do it: You could cut Twitter in via a revenue split or agree to license its data stream, which has generally been free up until now. Or you could agree to use Twitter’s own “Promoted Tweets” ad service. Or some combination of the above.
• Costolo says the company hasn’t established a minimum fee, revenue split or another metric for payments. So a lot of this is going to get hammered out case by case.

Okay. But who, exactly, is going to have to pay up? Twitter’s terms aren’t clear, and while I went around and around with Costolo about this over the phone, I’m still not sure. Because I don’t think Twitter is sure.

Start with the easy stuff: If there’s nothing else in your service beyond tweets and you’re selling ads against those tweets, you could be paying.

“When we’re talking about cases where Twitter is clearly a key component of how a page is monetized, we need to have a commercial relationship,” Costolo said.

That sure sounds like TweetUp, the new “AdSense for Tweets” product that launched today, despite what CEO Bill Gross told me this morning. And it doesn’t sound like Muck Rack, a Twitter aggregation site owned by Sawhorse Media–because there aren’t any ads on Muck Rack. But if owner Greg Galant decided to start running Google (GOOG) AdSense ads on his pages, he might end up paying.

Except that Twitter says it’s not looking to find all the developers and publishers out there selling ads against the Twitter stream and tax them. Size matters, for one thing.

“We’re not trying to prevent people from building businesses,” says Tony Wang, a Twitter business development executive who joined my call with Costolo today. “We’re saying if there’s this thing you’re doing, and you’re selling ads against it, and it’s really big, we want to participate in that.”

So is Twitter only interested in really big publishers who use Twitter? Not necessarily. I asked Costolo about the Huffington Post, which has prominently embraced Twitter and uses it frequently to fill out its pages. Like this Twitter widget under a grisly story about a gored bullfighter (careful!).

That’s probably fine, Costolo said. But what about Huffpo’s “Twitter editions,” which are primarily made up of tweets? I’ve asked Costolo about those in a follow-up email, but haven’t heard back yet. My gut: He’s not sure yet. Which is going to make for lots of interesting conversations in the coming weeks and months.

UPDATE: Here’s Costolo’s response, via e-mail, on the Huffpo question. Not surprisingly, he heaps praise on a big Web site that helps Twitter increase its distribution. Though note he does mention plans to “monetize…together”:

HuffPo’s Twitter Edition pages are an awesome example of why those guys are one of our most innovative partners. We actively support and encourage those efforts, and look forward to working with them to monetize these opportunities together. In fact, I think they will play an important role in helping define smart approaches to advertising around Twitter-driven content.

It’s reasonable enough for Twitter to start trying to make money via companies that are making money via Twitter–it’s a move many outsiders have been calling for the company to make for some time. But it wouldn’t be Twitter if this was a straightforward process. Get ready for a bumpy ride.

UPDATE 2: After a day of discussion, Twitter has tweaked its language in its terms of service, swapping out  “In cases where Twitter content is the basis (in whole or in part) of the advertising sale” with “In cases where Twitter content is the primary basis of the advertising sale”.

What does that mean? Here’s Costolo, via email: “The policy remains the same — if Twitter content is the primary basis of the advertising sale, we require a commercial relationship. It’s important to note that just because there is Twitter content on a site, for example a Twitter widget, that does not mean we will require a commercial relationship. We encourage folks to find innovative ways to display Twitter content, and we aren’t interested in tracking down each and every implementation in order to be compensated.”

Here’s

]]> http://allthingsd.com/20100524/twitters-free-love-era-comes-to-an-end-time-for-developers-and-publishers-to-pay-up/feed/ 0 http://allthingsd.com/20100520/googles-royalty-free-webm-video-may-not-be-royalty-free-for-long/ http://allthingsd.com/20100520/googles-royalty-free-webm-video-may-not-be-royalty-free-for-long/#comments Thu, 20 May 2010 22:45:35 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=41125 The announcement of Google’s new WebM video format and release of the VP8 video codec as an open standard have been hailed by some as the move that will free the Web from the proprietary H.264 codec widely used for online video today and favored by Apple (AAPL) and Microsoft (MSFT).

“The world would have a new free format unencumbered by software patents,” the Free Software Foundation enthused in an open letter to Google (GOOG) earlier this year. “Viewers, video creators, free software developers, hardware makers–everyone–would have another way to distribute video without patents, fees, and restrictions.”

A new era of Web video without the patent-encumbered formats that have defined the Internet to date. That seems ideal. But like many ideals, it may prove to be unattainable. As a number of observers have already noted VP8 isn’t free from patent liability. And now that Google has open-sourced it as part of WebM, that liability is likely to become an issue.

And quickly, too.

Indeed, Larry Horn, CEO of MPEG LA, the consortium that controls the AVC/H.264 video standard, tells me that the group is already looking at creating a patent pool license for VP8. Here’s an excerpt from my email exchange with him:

JP: Let me ask you this: Are you creating a patent pool license for VP8 and WebM? Have you been approached about creating one?

Larry Horn: Yes, in view of the marketplace uncertainties regarding patent licensing needs for such technologies, there have been expressions of interest from the market urging us to facilitate formation of licenses that would address the market’s need for a convenient one-stop marketplace alternative to negotiating separate licenses with individual patent holders in accessing essential patent rights for VP8 as well as other codecs, and we are looking into the prospects of doing so.

It would seem, then, that VP8 may end up subject to the same licensing issues as H.264. If MPEG LA does create a patent pool license for the standard, the free lunch Google promised yesterday may not be free after all.

Google certainly has the market muscle to guarantee broad acceptance of WebM and the VP8 codec–if it’s a royalty-free standard. But what if it’s not truly royalty free? Who’ll foot the bill? And is the company willing to indemnify its partners from patent litigation to push WebM?

For what it’s worth, Google seems to believe that it has done its due diligence here and has the necessary patent clearance for VP8. Said Google product manager Mike Jazayeri: “We have done a pretty thorough analysis of VP8 and On2 Technologies (VP8′s developer) prior to the acquisition and since then, and we are very confident with the technology and that’s why we’re open sourcing.”

Question is, was that analysis thorough enough?

I’ve asked Google for comment on Horn’s remarks and will update here if I’m given one.

]]> http://allthingsd.com/20100520/googles-royalty-free-webm-video-may-not-be-royalty-free-for-long/feed/ 0 http://allthingsd.com/20100519/google-open-sources-vp8-video-codec-will-apple-and-microsoft-use-it/ http://allthingsd.com/20100519/google-open-sources-vp8-video-codec-will-apple-and-microsoft-use-it/#comments Wed, 19 May 2010 17:36:45 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=40975 Google’s plan to open-source the VP8 video codec has been rumored ever since the company acquired its developer, On2, in August 2009. After all, in the press release detailing the acquisition, Google clearly stated that “video compression technology should be a part of the Web platform.”

So it’s no surprise that the company announced an open-source, royalty-free HTML5 video format based on VP8 at its I/O conference Wednesday. What is surprising is the level of industry support Google has already rounded up.

Dubbed WebM, the format uses the VP8 codec for video and Vorbis codec for audio and is offered under a pretty permissive BSD-style license that makes it quite a bit more attractive than H.264, a rival format with pretty steep licensing fees.

Google is pushing the format hard. The company has convinced Mozilla and Opera to add WebM support to their browsers (Chrome support is obviously a given) and it has begun encoding all YouTube videos 720p or larger in the format.

Google has also lined up some 40 software and hardware vendors to support WebM. Among them: Oracle (ORCL), AMD (AMD), ARM (ARM), Nvidia (NVDA), Qualcomm (QCOM) and Brightcove. Also on the list: Adobe (ADBE), which plans to use VP8 for Flash.

An impressive lineup of supporters, though there are three notable omissions: Apple (AAPL), Microsoft (MSFT) and Intel (INTC). Will those companies come around and back the standard as well? Given enough industry support for VP8 playback through HTML5, they may have to. I’ve asked them and will update here if I hear back.

UPDATE: Intel tells me it will support WebM and V8, not because it particularly favors them but because it plans to support most video formats.

“We’re supportive of multiple formats,” a company spokesman told me. “We don’t support one format to the exclusion of another format.”

UPDATE: Interesting. There’s speculation that WebM may violate some H.264 patents. “VP8 is simply way too similar to H.264,” developer Jason Garrett-Glaser concludes after an exhaustive analysis of the format. “[A] pithy, if slightly inaccurate, description of VP8 would be “H.264 Baseline Profile with a better entropy coder”. Though I am not a lawyer, I simply cannot believe that they will be able to get away with this, especially in today’s overly litigious day and age. Even VC-1 differed more from H.264 than VP8 does, and even VC-1 didn’t manage to escape the clutches of software patents. Until we get some hard evidence that VP8 is safe, I would be extremely cautious. Since Google is not indemnifying users of VP8 from patent lawsuits, this is even more of a potential problem.”

]]> http://allthingsd.com/20100519/google-open-sources-vp8-video-codec-will-apple-and-microsoft-use-it/feed/ 0 http://allthingsd.com/20100512/big-music-wins-one-limewire-loses-court-fight/ http://allthingsd.com/20100512/big-music-wins-one-limewire-loses-court-fight/#comments Wed, 12 May 2010 20:17:10 +0000 Peter Kafka http://mediamemo.allthingsd.com/?p=19368 A big victory for Big Music: A federal court has ruled in favor of the music labels in their fight against LimeWire, one of the most prominent file-sharing services on the Web.

You can read all of U.S. District Court Judge Kimba Wood’s ruling at the bottom of the post. But the short version is that Wood, using the Supreme Court’s Grokster decision as a guide, found that LimeWire is indeed guilty of copyright violations. In her words:

LimeWire… (1) is aware that LimeWire’s users commit a substantial amount of copyright infringement; (2) markets LimeWire to users predisposed to committing infringement; (3) ensures that LimeWire enables infringement and assists users committing infringement; (4) relies on the fact that LimeWire enables infringement for the success of its business; and (5) has not taken meaningful steps to mitigate infringement.

LimeWire is unusual among post-Napster, post-Grokster file-sharing operations in that it operates out in the open, in the U.S. The company, based in New York City and owned by investor Mark Gorton, actually sells a smattering of music itself with the blessing of some of the smaller music labels. But while the company has been engaged in a long back-and-forth with the big guys, it has never reached a settlement.

Meanwhile, almost all of the music available on the service (93 percent, according to a study used in the lawsuit) and even more of the stuff actually downloaded (98.8 percent, via the same study) is protected by copyright and should not have been there. Court documents state that LimeWire generated revenue of $20 million in 2006.

LimeWire does tell its users they shouldn’t steal music. This is the warning you get when you try to do so:

But that’s not enough, Wood ruled. And certainly not when the service was going out of its way to court users searching Google (GOOG) for free tunes. From her ruling:

LimeWire conducted a marketing campaign through Google AdWords, whereby Google users who entered certain search queries, such as “replacement napster,” “napster mp3,” “napster download,” “kazaa morpheus,” “mp3 free download,” and dozens of other phrases containing the words “napster,” “kazaa,” or “morpheus,” would see an advertisement leading them to the LimeWire website.

The next step in the case is a June 1 conference. Here’s LimeWire CEO George Searle’s statement, which doesn’t include a vow to appeal the ruling:

LimeWire strongly opposes the Court’s recent decision. LimeWire remains committed to developing innovative products and services for the end-user and to working with the entire music industry, including the major labels, to achieve this mission. We look forward to our June 1 meeting with Judge Wood.

And here’s the end-zone dance from Mitch Bainwol, CEO of the music industry’s lobbying group:

This definitive ruling is an extraordinary victory for the entire creative community. The court made clear that LimeWire was liable for inducing widespread copyright theft.

LimeWire is one of the largest remaining commercial peer-to-peer services. Unlike other P2P services that negotiated licenses, imposed filters or otherwise chose to discontinue their illegal conduct following the Supreme Court’s decision in the Grokster case, LimeWire instead thumbed its nose at the law and creators. The court’s decision is an important milestone in the creative community’s fight to reclaim the Internet as a platform for legitimate commerce. By finding LimeWire’s CEO personally liable, in addition to his company, the court has sent a clear signal to those who think they can devise and profit from a piracy scheme that will escape accountability.

We are gratified by the court’s careful and thorough analysis of the facts and applicable law.

Bigger question: What does this mean for the music industry? Assuming Wood’s ruling stands, this one will definitely feel good for the labels, and it would have been a very big deal had they lost. But it certainly won’t help them in fighting less formally organized P2P services or those set up outside the U.S.

Arista Records Summary Judgment Opinion

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