Category: Digital Technology

Posted on By Kurt Wimmer, Esq.

Google and the First Amendment

By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

I just had the privilege of participating in a panel discussion at an American Antitrust Institute conference.  My panel included such luminaries as Eli Noam of Columbia, Gene Kimmelman of the Antitrust Division of the Department of Justice, and Susan DeSanti of the Federal Trade Commission.  Unlike many of my colleagues on the panel, I’m far from being an antitrust expert.  My topic was a more familiar one – whether enforcement of antitrust law against a search and advertising provider would violate the First Amendment. 

The question arises because of a novel proposition being advanced by Google.  The Federal Trade Commission is investigating claims that Google has violated antitrust law by manipulating search results to favor its own services and bury the services offered by vertical search engines that might compete with Google.  Google has argued that it is absolutely immune from antitrust liability because its search results constitute speech protected by the First Amendment – in fact, it asserts that the First Amendment actually “blocks” the application of antitrust law to it.  Google analogizes its work to that of a newspaper editor selecting information for publication, and seeks the same “absolute” protection that a newspaper editor would receive under the First Amendment.

But wait – newspaper editors don’t receive absolute protection under the First Amendment.  If editors’ work is absolutely protected, why did I spend last night discussing a story with an editor to mitigate defamation risk?  Why did I defend a deposition last week of a reporter attempting to keep his source confidential?  Why have reporters gone to prison in the United States to protect sources?  Why are some in Congress talking about doubling down on legal restrictions to stop leaks to the press?

The First Amendment is not absolute, and never has been, for anyone, whether they run a newspaper, a blog, or a search-and-advertising business. False and deceptive speech, as Google’s manipulated search results are alleged to be, falls outside the protection of the First Amendment.  Jon Leibowitz, chairman of the FTC, made precisely this point in an All Things Digital interview just this month, and he’s precisely right as a matter of constitutional law.  Otherwise, the FTC would have no jurisdiction to enforce privacy laws or laws against false advertising and deceptive trade practices.

Of course, non-deceptive speech also may be regulated in many circumstances.  The antitrust laws, which regulate commercial behavior to promote competition, are an example of laws that may permissibly restrict certain kinds of speech.  The plain fact is that “the First Amendment does not provide blanket protection to restraints of trade effectuated through speech,” in the words of the Department of Justice.  This principle has been applied consistently since the Supreme Court affirmed an antitrust judgment against the Associated Press in 1945, and remains the law today.

Google’s arguments that it is uniquely immune from antitrust liability, regardless of how it has abused its massive market share, remind me of the quaint musings of early Internet pioneers that law cannot apply in “cyberspace.”  But the same law that applies offline generally applies online (in the absence of online-specific legislation such as Section 230), and damage to competition that may occur on the Internet can destroy real businesses in the real world.  No one is above the law – not even Google.  Whether any of the allegations against Google can be proved, of course, remains to be seen.  But to assert at the very outset that the First Amendment actually “blocks” liability, regardless of what the FTC or a court might find, ignores the law.

If you’d like to read more, the Media Institute has graciously agreed to host my paper (available here) that addresses these issues in more depth.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Richard T. Kaplar

DOL Reportedly Postponing New ‘Lock-up’ Policy

Published reports suggest that the Department of Labor is poised to delay implementation of a policy announced in April that would require reporters working in the DOL’s “lock-up” room to use government computers and transmission lines when writing stories about DOL reports and data as they’re released.  The proposed policy caused a flurry of criticism from media outlets and prompted a June 6 hearing by the House Oversight and Government Reform Committee.  DOL will announce a new start date this week, according to reports quoting an e-mail from DOL media specialist Carl Fillichio.

We’re glad to see that DOL is at least planning to postpone the policy.  Media Institute President Patrick Maines was an early and outspoken critic of this bureaucratic folly, questioning the wisdom of such a move in his May 7 post.

Let’s hope that any delay becomes permanent, and that this attempt to extend the government’s hand into reporters’ notebooks is forever banished to the dust heap of bad ideas. 

                              

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. 

Posted on By Patrick Maines

Julius Genachowski and Broadband Billing

Comments made earlier this week by FCC chairman Julius Genachowski have raised hackles at organizations like Free Press and kindred groups.  The occasion was the Cable Show in Boston, and the offending subject was what is called “usage-based billing” – the radical notion that people who use more of a thing should pay more than those who use less.

In a Q&A session with Michael Powell, former FCC chairman and current CEO of the National Cable and Telecommunications Association, Genachowski avowed that there was much to like about broadband providers basing their charges on usage (rather than on a one-size-fits-all basis).

This wasn’t the first time Genachowski had endorsed this practice – it was part of the net neutrality regulations that the FCC promulgated a couple of years ago – but it was enough to provoke the simple folk at Free Press into eruptions of their usual blather.

The last time broadband billing was discussed in this blog (April 2009), the news was Time Warner Cable’s decision, under fire from people and organizations like Free Press, Public Knowledge, and Sen. Charles Schumer, to suspend their trials of this kind of billing in a handful of cities.

As reported at the time, the air was thick with celebration as the “victors” issued triumphant statements on the occasion.  Triumphant no more, they have been reduced, in response to Genachowski’s comments on Tuesday, to broadsides and bromides like this one from Matt Wood, policy director of Free Press: “The data caps being pushed by the biggest cable companies are bad for consumers … and the FCC should be investigating these caps, not endorsing them.”

But enough about broadband billing per se.  The more noteworthy thing about Genachowski’s comment is that this marks at least the third time that he has demonstrated his independence from the louder voices among communications policy outfits.

The first time was with the FCC’s adoption of what came to be called “net neutrality lite,” and the second was when he hired Steve Waldman to head up the agency’s “future of media” report, a document that steered clear of the most intrusive and inappropriate kinds of recommendations that had been proposed for it.

None of this is to say – nor would the gentleman necessarily welcome our saying – that Mr. Genachowski is the very model of what one looks for in an FCC chairman.  Though the net neutrality regulations are much better than what they might have been, better still would be no such regulations at all.

Still, in an environment as divisive as Washington’s, it’s probably a good idea once in a while to step outside of it all and give credit where credit is due.  So props to Julius Genachowski for his embrace of usage-based broadband billing.  ’Tis a fine thing he’s done.

                                     

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Posted on By Patrick Maines

The Truth Behind Google’s Copyright-Bills Hysteria

Though the final chapter in the legislative history of the copyright bills hasn’t yet been written, a couple things are obvious even now: The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.

This provides the background for what happened within just a few days last week, as Congress was flooded with calls and mail, and petitions were signed by millions, in opposition to bills whose intent was to provide an effective way to combat content infringement on rogue websites abroad.

Didn’t matter that most fans of social media, file-sharing, blogs, and the like know next to nothing about communications policymaking, or even the details of the laws they were moved to oppose.  They know what they like, and dislike, and when manipulated into seeing the copyright bills as a threat they responded in great numbers.

None of which, of course, is to wonder why people feel more of a kinship with things like the social media than they do with the mainstream media.  The one-way and “one-to-the-many” aspects of the old media don’t empower people, or allow for their personal expression, in the manner of blogs or social media like Facebook and YouTube.

But the reason so many people were disposed to dislike the copyright bills, and their knowledge of what was actually in them, are two different things.  What moved them to act on their dislike was yet another.  For these parts of the story we have to look to the tech industry lobby, and Google most importantly.  It was Google that floated the canard that passage of the bills would forever change “the Internet as we’ve known it.”

The irony in Google’s claim was apparently lost on most of the media, tech and mainstream, which may explain why so few reporters pointed out that this alleged threat is word-for-word what the company said, 13 years ago, in opposition to another copyright bill (the Digital Millennium Copyright Act), passage of which has since proven to be a positive boon to Internet companies.

It may also explain why so few reporters pointed out that Google’s claims about the copyright bills – as precursors to the regulation of the Internet – are not just over the top but hypocritical.  It was, after all, Google that successfully lobbied, with the active help of a majority of FCC Commissioners, for so-called “network neutrality” regulations, the precedent of which provides not for just speculative but “here and now” regulation of the Internet.

Still, if crass exaggeration and hypocrisy were all that Google displayed in this regard, one might be inclined just to dismiss it as boys being boys.  But it didn’t stop there.  Google, and other groups that should know better, also gave expression and currency to the bunkum that the copyright bills amounted to an assault on the First Amendment.

That this argument was utterly demolished by the country’s leading First Amendment expert, Floyd Abrams, didn’t give them a moment’s pause, with the upshot being that this nonsense was parroted by all sorts of people as a reason for rejection of the bills.

In August of last year, The Media Institute filed a white paper with the Federal Trade Commission titled “Google and the Media: How Google is Leveraging its Position in Search to Dominate the Media Economy.”  Among other things, the paper demonstrated the ways in which Google profits from copyright infringement; that indeed the use of other people’s content without their permission has been at the heart of the company’s business plan.

Though the paper didn’t recommend any particular remedy, it asked the FTC to intervene in a way that would prevent the media economy from being dominated by a single entity.  Google’s conduct regarding the copyright legislation shows that, far from pulling back, its interest in this kind of domination is growing apace.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in the Dallas Morning News on Jan. 25, 2012.

 

Posted on By Patrick Maines

Rationalizing Theft: A Postscript

The fight over the copyright bills currently being considered in Congress puts on display two of the tech industry’s least attractive characteristics – its sense of entitlement, and its extraordinary lack of knowledge about things outside the area of its core competency.

So it is that the bills in question (the Protect IP and Stop Online Piracy acts) are said by the tech industry’s lobbyists and fan base to threaten the “end of the Internet as we’ve known it,” the same claim they made 13 years ago in opposition to the Digital Millennium Copyright Act.  (And we all know how that worked out.)

As mentioned in an earlier post, all of the techies profess to have an interest in preventing copyright infringement; it just happens that they oppose anything and everything that’s ever been (or will be) proposed for the purpose.

The earlier blog scored the hyperbolic, not to say hypocritical, aspects of the criticism being leveled at today’s copyright bills.  But after reading additional criticism of them published since, it’s clear that I overlooked something.

Though most critics don’t come right out and say so, much of the criticism of the bills springs from people who, convinced that industries like Hollywood and the traditional media are of less importance than the Internet, believe that for this reason copyright laws ought to favor the latter over the former.  As one techno-philosopher, commenting on a piece in TechCrunch put it: “The Internet is the new entertainment industry.”

One needn’t dispute the current and future importance of the Internet (and all things digital) to know that this is an inapposite and corrosive argument, for the simple reason that copyright protection was never designed to be meted out in proportion to the financial dimensions of a company or industry.  It’s a constitutional law that is meant to protect all copyright holders, whatever their commercial girth or market caps.

To put it another way, the Constitution does not have to accommodate industries; industries have to accommodate the Constitution. This is, after all, one of the reasons we call our own a nation of laws.

Because The Media Institute is not a lobby, we’re not in a position to know whether the House or Senate bills will pass either body.  We read that some softening of them may be in the cards, though the recent forceful testimony in support of the bills, as written, by Register of Copyrights Maria Pallante would seem to suggest otherwise.

Whatever the outcome, one thing has been made clear by the tech industry’s shrill opposition.  If U.S. copyright laws – and those people and industries that rely on them – are to survive, there will have to be a far more sophisticated and generous understanding of the value in copyrights generally.  As Ms. Pallante chillingly put it in her remarks to the House Judiciary Committee: “It is my view that if Congress does not continue to provide serious responses to online piracy, the U.S. copyright system will ultimately fail.”

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Rationalizing Theft: The Technology Lobby’s Attack on Copyright Legislation

The technology crowd’s objections to the copyright protection bills, now moving their way through Congress, put one in mind of H.L. Mencken’s crack that criticism is prejudice made plausible.  This, because that industry’s leaders, scribes, and think tanks uniformly oppose every legislative initiative aimed at protecting copyrighted content, even as they frequently give lip service to the concept .

From the Digital Millennium Copyright Act (DMCA) in the late ’90s – which they fought tooth and nail, but cling to in today’s debates as though it were an uncle come to jail with money for the bail bondsman – to today’s Protect IP and Stop Online Piracy acts (good summaries of which are here and here), the techies profess all sorts of high-minded concerns, but never at the expense, you understand, of their business plans.

Take, for instance, Google, the 800-pound gorilla, inside and outside the Beltway, regarding all things digital.  The company’s executive chairman, Eric Schmidt, claims that attempts to crack down on rogue sites profiting from copyright infringement could set a “disastrous precedent” for freedom of speech, and also that they would encourage more restrictive Internet policies in countries like China.

This is serious stuff, and would be more serious still if (a) it were true, and (b) it issued from a company with any public policy credibility in this regard.  Alas, neither is the case.  Let’s start with the credibility problem first.

The best example of a U.S. policy that really would have (or might still) set a bad precedent regarding repressive regimes abroad is the FCC’s recently concluded Network Neutrality proceeding.  Indeed, in March of last year the U.S. Coordinator for International Communications & Information Policy at the State Department, Philip Verveer, had this to say about the subject at a Media Institute luncheon in Washington: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet … it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly.”

Though there are those, of whom I’m one, who think the FCC’s subsequently enacted Internet rules, though greatly watered down, still went too far, the more interesting thing to note in this regard is that Google was the leading figure among those lobbying in support of net neutrality.

In the summer of 2006, for instance, Eric Schmidt himself penned a note on Google’s Public Policy Blog that read in part:

The Internet as we know it is facing a serious threat.  There’s a debate heating up in Washington, D.C. on something called “net neutrality” – and it’s a debate that’s so important Google is asking you to get involved.  We’re asking you to take action to protect Internet freedom….

Creativity, innovation, and a free and open marketplace are all at stake in this fight. Please call your representative and let your voice be heard.  

And then there’s the argument, made by Google and lesser apologists of unfettered infringement, that the Protect IP and Stop Online Piracy acts undermine the speech guarantees of the First Amendment.  Whether it’s because they like the sound of the accusation, or because, not knowing any better, they actually believe it, there’s a lot of this nonsense going around the technocracy.

They might be more cautious about making such claims if they read the First Amendment analysis of the Protect IP Act written by the most distinguished First Amendment scholar of our age, Floyd Abrams.  In a 12-page letter sent on May 24 to Senate Judiciary Committee members Leahy, Hatch, and Grassley, Abrams lays out a compelling argument that the Act is consistent with the First Amendment, and concludes with these observations:

Among a range of objections, two core critiques stand out.  First, there is a recurring argument that the United States would be less credible in its criticisms of nations that egregiously violate the civil liberties of their citizens if Congress cracks down on rogue websites.  Second, there is the vaguer notion that stealing is somehow less offensive when carried out online….

I disagree.  Copyright violations are not protected by the First Amendment.  Entities “dedicated to infringing activities” are not engaging in speech that any civilized, let alone freedom-oriented nation protects.  That these infringing activities occur on the Internet makes them not less, but more harmful.  The notion that by combating such acts through legislation, the United States would compromise its role as the world leader in advancing a free and universal Internet seems to me insupportable.  As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one’s intellectual creations.  This legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.

Abrams’ last point is especially noteworthy.  Not only is the current concern with copyright protection  nothing new, it is in fact as old as the country itself.  Reading the overwrought diatribes of the tech community one might get a different impression, but in fact it’s all there in black and white, among the “enumerated powers” in Article 1, Section 8 of the U.S. Constitution.

For those who have forgotten, or never knew, this so-called copyright clause empowers Congress “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”

Language and wisdom, that is to say, that is not the contemporary creation of the heads of the motion picture studios, but of the Founding Fathers more than 200 years ago.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Kurt Wimmer, Esq.

Media Institute Response to ‘The Truth About Google, Search, and the Media Industry’

GUEST BLOG

[EDITORS’ NOTE:  Kurt Wimmer is a partner in the Washington, D.C., office of Covington & Burling LLP.  He is chairman of The Media Institute’s First Amendment Advisory Council, and is the principal author of the Institute’s white paper to the Federal Trade Commission about Google’s practices.  The article below is in response to the rebuttal of Oct. 6 by Adam Kovacevich of Google, which can be found on this site.]  

By Kurt Wimmer, Esq.

When Google wrote the Media Institute about the white paper we submitted to the FTC (“How Google is Dominating the Media Economy”), Patrick Maines invited Google to respond on this blog.  Frankly, we were pleased that we’d prompted a frank conversation about Google and the future of media.  We expected and were ready to welcome energetic disagreement with our position; after all, one of the Media Institute’s underlying missions is promoting a diversity of voices on major public policy issues.

But instead of deepening the debate, Google dusted off talking points that it’s been using for years, most of which our paper readily acknowledges. 

We don’t question, for example, that Google News drives some traffic to some publications’ websites.  Most viewers of Google News do not click through to any of the media sites from which Google scrapes content – about half of all users go no further than Google News and thus do not generate a dime for the content producers.  But we know that some traffic does flow from Google News to publishers’ sites.  We do have serious doubts about the “value” of this traffic, and we worry that, as it has in other areas, Google increasingly uses its News page to cannibalize whatever value there is.  Whether these websites can “opt out” of News is unhelpful because of the predicament News puts publishers in – opt-in, and feed the Google monster; opt-out and starve alone.  Our concerns do not relate to publishing only; as our paper pointed out, Google Places is following the Google News model in using its search dominance to scrape and scuttle local review websites.  Google’s response breezily ignores these points.

We have the same objections to Google’s treatment of Books and YouTube in its response, which again relies on broad statements rather than engaging in any serious debate.  Google simply bypasses our basic premise, which is that it has used its scale to coerce content makers into accepting the Google business model.  Google claims legal victory in the dispute between YouTube and Viacom, but the Second Circuit won’t hold oral argument to settle the matter until later this month.  Given the brazen evidence that YouTube was founded and grew on a business model of copyright infringement, we believe that Viacom is likely to take the upper hand – but we won’t claim victory until the Second Circuit rules, and suggest that Google should do the same.

And Judge Chin’s concerns about the Google Books Settlement have left that agreement hanging by a thread.  Though we disagree with Google’s legal arguments in both cases, we wouldn’t have criticized Google for offering an outspoken defense of those positions.  But Google, rather than addressing the colossal quantities of content it stockpiles at the expense of creators and competitors, offers only the same hollow defense: We bring books and video to a wider audience.  This is no help, in our view, given the costs that Google’s response sidesteps.  Infringement always brings works to a “wider audience” – an audience that the creators of the works did not agree to serve for free, and one that does not fund the creative spark that created the works.  In fact, both Google Books and YouTube exist not to bring works to a wider audience, but to create dominant platforms for works that deny creators the benefit of a competitive marketplace.

The rise of Google’s dominance in media deserves a candid discussion, both here and at the FTC.  We wish Google had contributed something new to the discussion, rather than just reiterating its weary talking points.  We would welcome any additional comments that Google would like to make in defense of its position or in rebuttal to our white paper.

                                   

The opinions expressed above are those of the writer and not necessarily of The Media Institute’s Board, contributors, or advisory councils.

Posted on By Patrick Maines

Response to The Media Institute White Paper: The Truth About Google, Search, and the Media Industry

GUEST BLOG

[EDITORS’ NOTE: In this space we offer Google an opportunity to take issue with the White Paper that The Media Institute filed with the FTC in August.  Google’s response is printed below exactly as we received it.]

By Adam Kovacevich, Head of Competition, Public Policy and Public Affairs, Google (Washington, D.C., office)

In August 2011, The Media Institute submitted a white paper to the Federal Trade Commission claiming that Google practices could “foreclose competition” in the media industry. The white paper largely restates past criticisms of Google on copyright and intellectual property issues. We appreciate the opportunity to post a rebuttal. Some of these criticisms are obsolete or have already been litigated; others we believe are just wrong. Here are the facts:

Google Has a Record of Helping the News Industry

Google News drives valuable traffic to news organizations’ websites for free. Each click from Google News to a publisher’s site is a business opportunity, offering newspapers and other publishers the chance to show ads, register users and earn loyal readers. Google News follows international copyright law by only showing users a headline and a short snippet for each news story.

Google sends news publishers more than 4 billion clicks each month. Google News provides about 1 billion of these clicks, and an additional 3 billion come from other Google services like web search. This means that Google sends approximately 100,000 business opportunities to publishers every minute.

Google News works with publishers by offering them useful tools. For example, Editors’ Picks is a feature that enables editors in newsrooms to identify the stories they believe should receive attention. Additionally, the new “standout” tag on Google News gives publishers the ability to self-designate unique and noteworthy content from their own or other publications. Articles tagged as “standout” may appear with a “Featured” label on the Google News homepage and News Search results. [Google News Blog, Aug. 4, 2011, Sept. 24, 2011]

News Organizations Can Easily Opt-Out of Google News

News publishers have control over their inclusion in Google News. If at any point a web publisher wants Google to stop indexing their content, they’re able to do so quickly and effectively by sending Google an opt-out request. Google also provides publishers with instructions to block their content from Google News, should they choose to do so. [GoogleNewsBlog, Dec. 2, 2009]

Opting out of Google News does not remove content from Google Web Search results. If a publisher opts out of Google News, but stays in Web Search, their content will still show up as natural web search results. [GoogleNewsBlog, Dec. 2, 2009]

Google Is Investing in the Future of Journalism

Google donated $5 million to nonprofits devoted to developing journalism in the digital age. $2 million went to the John S. and James L. Knight Foundation, a nonprofit that supports programs that drive innovation in journalism. The Knight Foundation used half of its grant to augment the Knight News Challenge, a media innovation contest that recognized 16 winners in 2011. [Official Google Blog, Oct. 26, 2010, June 22, 2011]

Google and the Associated Press are offering six $20,000 scholarships to journalism students to encourage and enable innovation in digital journalism. The Online News Association, the world’s largest membership organization of digital journalists, will administer the program. [OfficialGoogleBlog, Aug. 15, 2011]

Google Books Helps People Discover Books, Benefiting Users, Authors and Publishers

Google Books helps readers find information and gives authors and publishers a new way to be found. For instance, the Google Books Partner Program enables publishers to promote their books online for free — so that users can search through them, and find out where to buy them or get them from a library. More than 40,000 partners have joined the Partner Program, including nearly every major U.S. publisher. [GoogleBooksBlog, May 23, 2011]

Google will work to make more of the world’s books discoverable online. The March 2011 decision by Judge Denny Chin to reject the Google Books settlement was disappointing, but Google is reviewing the Court’s decision and considering various options. We believe this agreement has the potential to open up access to millions of books that are currently hard to find in the US today. [GoogleBooksAgreement]

Google Helps Rights Holders Manage Their Presence on YouTube

YouTube created Content ID to help rights holders manage their content on YouTube. Managing rights for content owners on YouTube has been important since the site’s early days. In 2007, this strategy led to the creation of a new technology called Content ID. Content ID is a full set of audio and video matching tools that give rights holders fine-grained controls for managing their content if someone uploads it to YouTube. Rights holders have the option of blocking, tracking, or making money from videos containing their content. More than 100 million videos have been claimed with Content ID. [YouTubeBlog, Dec. 2, 2010]

Content ID helps rights holders monetize their content. More than 1,000 partners use Content ID. Rights holders who claim their content with Content ID generally more than double the number of views against which YouTube can run ads, which doubles the rights holders’ potential revenue. Content ID contributes more than a third of YouTube’s monetized views each week. [YouTubeBlog, Dec. 2, 2010]

YouTube won its copyright case against Viacom. In June 2010, a federal court decided against Viacom in its copyright infringement lawsuit against YouTube. The court ruled that YouTube is protected by the safe harbor of the Digital Millennium Copyright Act if it works cooperatively with copyright holders to help them manage their rights online. [OfficialGoogleBlog, June 23, 2010]

Google Does Not Block Other Search Engines from Crawling YouTube

Bing and Yahoo both display YouTube videos on their search engine results pages. A search for [rebecca black friday] on Bing and Yahoo displays the YouTube video as the fourth result on Bing (following two Wikipedia entries and a Bing Images result) and as the third result on Yahoo (following two Wikipedia entries). [Bing | Yahoo]

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Posted on By Patrick Maines

Evil Is as Evil Does

The search giant Google is attracting criticism from those who see in that company’s business practices a threat to professional journalism, old and new.  The latest such comes in the form of a policy paper written by media attorney Kurt Wimmer, and published online by The Media Institute.

Honored this year by the Reporters Committee for Freedom of the Press, Wimmer has advised journalists and legislators in more than two dozen countries concerning new media laws, protection of journalists, and freedom of information.

The thrust of his paper is that, at a time when there is great concern for the future of the media, much of this concern is misplaced.  There’s no crisis in journalism per se, he argues, but rather a crisis in the monetization of journalistic content, a condition greatly exacerbated by the fact that one company dominates both search and online advertising.

Is anyone monetizing digital content?  Yes.  News and information continues to be monetized – at a rapidly increasing rate – by search engines, content aggregators, and others whose new, targeted advertising models have overtaken the spending that had supported journalism in the past.

Again, the dramatic new feature here is the split between content creation and content monetization – those who create the content are not those who are monetizing it.  Google, for example, had a record $23 billion in revenue during 2009, without producing a word of original content.  Google’s job is simply to monetize the content that others have created, and it has performed that job exceptionally well.  Today, more than 70 percent of the Web searches conducted in the United States (and up to 90 percent of those in Europe) flow through Google’s servers.  By its recent acquisition of AdMob, Google will control the vast majority of the mobile application advertising market as well.

Complaints about Google’s disruptive effect on professional journalism are not new, of course, and this is not the only active concern about Google’s business practices.  Other people have problems with the company’s abuse of copyrighted material (as in Viacom’s lawsuit against Google’s YouTube subsidiary), or with Google’s invasion of privacy, such as seen in the recent “Spy-Fi” affair.

What is new is the degree of scrutiny of Google’s practices by government antitrust officials.  As reported last month in a lengthy story in The New York Times, “the search giant’s decisions on such matters may soon be judged by higher authorities.”  As the Times reporter, Brad Stone, put it: “Almost a decade after Google promised that the creed ‘Don’t be evil’ would guide its activities, the federal government is examining Google’s acquisitions and actions as never before, looking for indications that the company’s market power may be anticompetitive in the worlds of Web search and online advertising.”

It’s become hard to know, in recent years, what the government may deem to be in restraint of trade, but if it happens, sometime in the near future, that it initiates an antitrust review of Google and you find yourself wondering why, read Wimmer’s piece and wonder no more.

Cross posted here on Huffington Post.

Posted on By Patrick Maines

The Knight Commission: Much Ado About Nothing

As in the title of the book about Southern belles, We’re Just Like You, Only Prettier, the report of the so-called Knight Commission, released on Oct. 2, is in some ways amusing and in other ways annoying.  It amuses in the way that it showcases the most pedestrian observations, as though they were the product of unique and weighty cerebration.  It annoys in the way that it pretends to a kind of grandeur and perspective – at precisely that moment in history when either would be useful – that it simply doesn’t possess.

Officially called the Knight Commission on the Information Needs of Communities in a Democracy, the Commission is a collaboration of the Aspen Institute and the Knight Foundation (assets pushing $2 billion), which paid for it all.  Early on the report makes clear that this is a commission with uncommon ambition and a high regard for itself.

Referring to the earlier Hutchins, Carnegie, and Kerner commissions, for instance, the Knight Commission co-chairs write: “In pursuing our work, we have been well aware that we are following in the path of other (emphasis added) distinguished Commissions.”  This, while a “background” document states that the Commission’s goal is to “start a national discussion – leading to real action.”

Given such a lofty calling one would expect the Commission’s observations to be trenchant and uniquely insightful.  One would be wrong.  From the foreword to the appendices, the Knight Commission report is a veritable cornucopia of the mundane, sortable into three categories: things that are already happening, and should be (like rapid broadband deployment by the private sector); things that are happening, and shouldn’t be (like the codification of the FCC’s net neutrality principles); and things that are not now happening and never will.

The best example of the latter comes in the Commission’s recommendation number 12 (of 15).  So as not to lose any of the rhetorical flavor of this recommendation, I quote parts of it verbatim: “Imagine,” they say, “a ‘Geek Corps for Local Democracy’ where, as a post-college opportunity, American youth volunteer to help connect a physical community to the networked infrastructure….  Geek Corps participants would teach community members how to use technology….  A Geek Corps would weave together the local and the national through networks of passionate youth.  Ideally, such a program would have the same stature as the Peace Corps or AmeriCorps, such that participants would be welcomed into jobs with open arms.”

Open, shmopen.  The notion that vast numbers of “post-college” American youth would (or should) line up for such a thing is the kind of idea that is dreamed up only by government bureaucrats – and nonprofit organizations that think like them.  How about getting or creating a job in the networked infrastructure, paying taxes, and buying things with whatever’s left over as might help the economy?

Speaking of rhetoric, that’s the other thing about the Knight Commission report.  Approximately every other paragraph, even the short ones, has the density of a black hole, so that after wandering into the first sentence you find yourself being stretched thin, like a strand of linguine, and by mid-graph frantically searching for a way out of the thing.

This said, if the only problems with the Knight Commission report were its immodesty, dense language, and commonplace insights, one could just ignore it completely and go about one’s business.  Unfortunately, however, the report is also marred by something else, specifically the timing and nature of its recommendations in the context of what is happening in the real world.

As it happens, on the very day that the Knight Commission released its report (on the premises of Freedom Forum’s Newseum, another billion-dollar foundation) the government announced that unemployment in the United States had reached 9.8 percent, and that more than 7 million people have lost their jobs since the onset of the current recession.

It is also a time when there is scarcely a state or municipality that is not on its financial uppers; when the national debt and federal deficit are at record highs; and when personal bankruptcies, home foreclosures, and credit card defaults are in the stratosphere and climbing.  To say that these data constitute an ongoing tragedy, and the deepest kind of threat to every person in this country, is not the tiniest exaggeration.

Enter into this environment a Knight Commission report whose recommendations are notable mostly for their exquisite attention to what, in the realm of communications policy, are little more than politically correct platitudes.  In this fashion, the report endorses things like governmental transparency, higher education, public libraries, broadband availability, net neutrality, diversity of media ownership, young people, old people, and ensuring that “every local community has at least one high-quality online hub.”  (If only there’d been an opportunity to say something about global warming.)

In other words, the Knight Commission report is frivolous and ill-timed.  This is the kind of report – with its recommendations of greater funding for public broadcasting, “public digital displays of news and culture,” a “federal tax credit for the support of investigative journalism,” and the aforementioned Geek Corps for Democracy – that should be released, if at all, only at a time when the country is so prosperous that people who should know better might actually go for it.

It didn’t have to be like this.  It would have been possible, even at this time, to create a commission that investigated the information needs of communities, in the context of our economic crisis, that was relevant and helpful.  It just didn’t happen.

To paraphrase Groucho Marx (“I’ve had a wonderful night, but this wasn’t it”), you can find some stimulating ideas about the future of journalism and the information needs of communities, but not in this report.