The 5G Privacy Opportunity

The Federal Communications Commission announced on Sept. 16 that it would be granting experimental licenses for companies in New York City and Salt Lake City to test new advanced technologies and networks in specific geographic areas.

This initiative, dubbed Innovation Zones, will be especially useful in testing various technologies in real-world settings that will support 5G wireless networks.  These networks will offer a range of advanced wireless services nationwide, with initial rollout in urban centers where spatial and population density makes technical and economic sense.

Continue reading “The 5G Privacy Opportunity”

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.

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.

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.

Google and the Media

The Wall Street Journal was the first to report, in June, that Google was about to be served with subpoenas as part of an investigation by the Federal Trade Commission into “whether the Internet giant has abused its dominance in Web-search advertising.”  If the FTC gets around to asking (under subpoena and in confidence) what media companies think about that allegation, they better come prepared to stay awhile.

This, because although you won’t find many media companies willing to say so publicly, Google is roundly feared and detested, and for good reason.  Google dominates the online advertising market, “by skimming away the earnings of media companies as it scrapes up their content, denying them of the scale that would be required for effective competition with the gatekeeper to the Internet.”

This and other observations are among the findings in a white paper submitted to the FTC by The Media Institute last week.  Titled “Google and the Media: How Google Is Leveraging Its Position in Search To Dominate the Media Economy,” the paper amounts to an indictment of the business practices of a company that has achieved extraordinary success with consumers.

As stated in the press release: “Google has used two principal strategies for appropriating the creative content of others for their own gain.  The first, exemplified by Google News, takes content from potential competitors to launch new businesses while depriving those competitors of the revenue their original content generates….  The second strategy, exemplified by YouTube and Google Books, is to test legal limits of copyright and, when challenged, to resolve any disputes by further cementing its monopoly.”

The Institute’s white paper makes no specific recommendations to the FTC, saying only that we are confident that the Commission can “find an appropriate prospective remedy to protect competition in the media, search, online and mobile markets.”

Our commissioning and release of this paper has led some – like the excellent media reporter John Eggerton – to ask whether this isn’t sort of an unusual position for an organization like TMI to take, given our view that government ought to stay out of the marketplace generally, and the media specifically.

And the gentleman is right; it is somewhat out of the ordinary.  But it’s also the case that there’s nothing usual or ordinary about Google, or about the threat that Google presents to an entire industry – in this case the professional, for-profit media – which taken together represent something special and uniquely important in this country.  And as shown here and here, our concern with Google’s business practices predates the FTC investigation by at least three years.

More than this, we would argue that the careful application of the antitrust laws is completely consistent both with capitalism and the general wisdom in keeping the government at bay in most ways.

A good parallel can be found in the Institute’s robust promotion both of freedom of speech and of strong copyright laws. We know that there is a certain tension between the two, but we think that tension can be reconciled, and that in fact these two values are the opposite sides of the same coin – valuable in their own right and vital when taken together.

And in any case, the facts here speak for themselves.  As stated in the conclusion of the white paper:

Despite its stated values to the contrary, Google has shown a willingness to exercise its monopoly power to the detriment of media companies, publishers, and journalists. These are companies ready to compete in the digital age, and prepared to rise or fall on the quality of their content and the strength of their creativity.  They face challenges that will promote innovation.  But they also face a challenge – from Google – that discourages improvement, and that transforms any advance into a setback as Google misdirects users to its own webpages, displaying the content of others and foreclosing competitors from that same aggregated content.  Absent intervention by the Commission, the future of the media economy will remain in significant danger of being dominated by a single entity that will foreclose competition.

                                   

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