A Sergey update: we misunderstood him

Apr 20, 12 3:13 PM

Sergey Brin has posted a response to the Guardian’s interview with him. (He posted it on Google Plus which means I have been on Google Plus twice now! Watch out Facebook!)

One clarification is particularly relevant to my previous comments:

I became an entrepreneur during the 90’s, the boom time of what you might now call Web 1.0. Yahoo created a directory of all the sites they could find without asking anyone for permission.

…

Today, starting such a service would entail navigating a number of new tollbooths and gatekeepers.

This is the most explicit I have seen Google be about one of their fundamental disagreements with things like copyright. He objects to the need for permission. He sees the need to get permission from someone else as fundamentally at odds with entrepreneurialism. It’s easy to see how that view is incompatible with the whole idea of copyright.

It’s also a clear enunciation of why Google is in a poor position to lead this debate. It’s obvious that a business which depends on the agreement of someone else, particularly in the IP field, would be advantaged if they could just do as they pleased regardless of whether that person agreed or not. Many businesses would love to be freed from regulatory and commercial restrictions, simply be able to ignore the rights and interests of others when they are inconvenient. That doesn’t make it right, though, even when the restriction makes it harder or even impossible to do certain kinds of business and “innovate” in certain ways.

The “tollbooths” and “gateways” which Sergey objects to have, in relation to copyright anyway, always been there. The law has never said it’s OK to just copy, keep and exploit anything you want, regardless of whether you have permission. If, as a consequence of the legal reality being ignored, some people have set up systems which technically restrict what the law has always restricted anyway that’s more likely a response to their interests being damaged than a fundamental shift in anything. Reality, you could say, is finally biting.

In truth, unfair advantages lead to unfair outcomes. Google is a massive and mind-bogglingly rich company, run by some of the most mind-bogglingly rich young scamps in the world, and the largest and most powerful aggregator of content and data ever seen. It has become so by exploiting content created by others. Even if this has by-and-large been done with tacit or “implied” permission, the idea that it doesn’t require permission in law or in reality, has never been true. So when some people decide that they don’t like it anymore, and prevent their content and data from being accessed by Google, it might not suit Google but it also is fundamentally wrong to present it as a threat to anything other than Google’s commercial interests.

Permission is the bedrock of copyright and so of professional creativity. When Google argues that their service and others should be exempt from the need for permission, they are arguing not for the interests of society at large, or entrepreneurs, or innovation, or free speech. They’re arguing for the interests of their shareholders.

Google should stop whinging and instead go out there and do some deals which work for their suppliers as well as themselves.

Policy makers, in the meantime, should take note.

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The internet wants to be open, but some internets are more open than others

Apr 18, 12 10:29 AM

Sergey Brin of Google had a discussion with The Guardian and talked about his vision for the future of the internet, alongside his concerns about threats to that vision.

It’s an incredible insight into his (and Google’s) world view, which seems to be from a truly unique perspective. There is nobody else who sits astride the internet like Google and it seems that from the top, the sense of entitlement to be the masters of all they survey is strong.

Take this quote, from towards the end of the piece:

If we could wave a magic wand and not be subject to US law, that would be great. If we could be in some magical jurisdiction that everyone in the world trusted, that would be great … We’re doing it as well as can be done

I’m not sure what this “magical jurisdiction” would be but it doesn’t sound like Sergey wants it to be based on US law, and there’s no sign that Google has any greater love for any other existing jurisdiction. I wonder if he’s thinking that perhaps it should be a Google-defined jurisdiction? After all, Google is fond of saying that the trust of users is their key asset – they presumably consider themselves to be highly trusted. I wonder if the magic wand is in development somewhere deep in their bowels? Perhaps one of their robotic cars can wave it when the time comes! Google can declare independence from the world…

But why should we trust them? There’s almost nothing they do which you can’t find fierce critics to match their army of adoring fans. Without deconstructing them all, surely the point is this: whenever a single entity (be it a government, company or individual) has complete control over any marketplace, territory or network, bad things tend to happen. Accountability, checks-and-balances, the rule of law, democratically enacted, are all ways of trying to ensure that power does not achieve its natural tendency to corrupt.

Google asks us to just trust it. And many people do.

Another quote:

There’s a lot to be lost,” he said. “For example, all the information in apps – that data is not crawlable by web crawlers. You can’t search it.

The phrasing is interesting. Is is really true that because data in apps is not crawlable it is “lost”? I use apps all the time, and the data appears to be available to me. I don’t think the fact that it’s not available to Google means it’s “lost” (except I suppose to Google). Defining something that is not visible to Google as “lost” suggests not just that Google considers that it should be able to see and keep everything that exists online, but also that they have an omniscient role that should not be subject to the normal rules of business or law. Like people being able to choose who they deal with and on what terms. Or being able to choose who copies and keeps their copyright works.

The “lost” app data could, of course, easily be made available to Google if the owner chose. Brin’s complaint seems to be that Google can’t access it without the owner deciding it’s OK – there is a technical obstacle which can’t simply be ignored. Yet all they have to do, surely, is persuade the owners to willingly open the door: hardly a controversial challenge in the world of business. It’s called doing a deal, isn’t it?

Here’s what he had to say in relation to Facebook

You have to play by their rules, which are really restrictive.. The kind of environment that we developed Google in, the reason that we were able to develop a search engine, is the web was so open. Once you get too many rules, that will stifle innovation.

Another telling insight. Too many rules stifle innovation. Rules are bad.

Hard to agree with even as a utopian ideal (utopia isn’t usually synonymous with anarchy), but even less so when you consider the reality of dealing with Google. I have visited various Google offices at various times and have always been asked to sign in using their “NDA machine” at reception. Everyone has to do it. You have to sign an NDA simply to walk into their offices. The first rule of Google is you can’t talk about Google. Hardly the most open environment – they are the only company I have ever visited which insists on this.

Of course, Google is no stranger to rules either. They set their own rules and don’t offer room for discussion or adjustment. When they crawl websites, for example, they copy and keep everything they find, indefinitely. They have an ambition to copy and keep all the information on the internet, and eventually the world. Their own private, closed, internet. This is a rule you have to play by.

Even if you ban crawling on some or all of your site using robots.txt, they crawl it anyway but just exclude the content from search results (this was explained to me by a senior Google engineer a few years ago and as far as I know it has not changed). If you want to set some of your own rules, using something like ACAP or just by negotiating with them, good luck: they refuse to implement things like ACAP and rarely negotiate.

“You have to play by their rules, which are really restrictive”

Here’s an interesting story. A while ago, Google refused to include content in their search results if clicking on the link would lead a user to a paywall. They said it was damaging to the user experience if they couldn’t read the content they had found with Google (another Google rule: users must be able to click on links they find and see the content without any barriers or restrictions). However it also meant users couldn’t find content they knew they wanted, for example from some high-profile newspapers like the FT and Wall Street Journal.

So Google introduced a programme called “First Click Free“. It set some rules (more rules!) for content owners to get their content included in Google search even if it was “restricted” behind a paywall. It doesn’t just set rules for how to allow Google’s crawlers to access the content without filling in a registration form, but also the conditions you have to fulfill – primarily that anybody clicking a link to “restricted” content from Google search needs to be allowed to view it immediately, without registration or payment.

This is a Google rule which you have to play by, unless you are willing to be excluded from all their search results. Not only is it technically demanding, it also fails to take account of different business models and the need for businesses to be flexible.

Unfortunately it was also wide open to abuse. Many people quickly realised they could read anything on paid sites just by typing the headline into a Google search.

Eventually Google made some changes. Here’s how they announced them:

we’ve decided to allow publishers to limit the number of accesses under the First Click Free policy to five free accesses per user each day 

They have “decided to allow” publishers to have a slightly amended business model. Publishers need permission from Google to implement a Google-defined business model (or suffer the huge impact of being excluded from search), and now they are allowed to vary it slightly.

For a company which objects to the idea of having to play by someone else’s rules, they’re not too bothered about imposing some of their own.

Which brings me back to trust. If Google want a world in which they have access to scan, store and use all “data” from everywhere, where they don’t have to play by the “restrictive” rules or laws (like copyright) set by others – even their own government – don’t they need to start thinking about their demand for openness both ways round? Rather than rejecting rules which don’t suit them (such as “US law”) shouldn’t they try to get them changed; argue and win their case or accept defeat graciously? Shouldn’t they stop imposing rules on those whose rules they reject, ignore or decry?

Google is a very closed company. Little they do internally is regarded by them as being “open”, and they build huge and onerous barriers to protect their IP, secrets and data. Even finding out what Google know about you, or what copies of your content they have, is virtually impossible; changing or deleting it even harder.

They ask us to trust them. We would be unwise to do so, any more than we trust any monopolies or closed regimes which define their own rules. It wouldn’t matter so much but for their huge dominance, influence and reach. They have, it is said, personal data on more than a billion people all of whom are expected to trust them unquestioningly.

Surely the first step to earning, rather than simply assuming, that trust is that they need to start behaving towards others in the way they demand others treat them.

Openness cuts both ways, Sergey. How about starting by practicing what you preach and opening Google up fully?

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It’s OK everyone, turns out everything’s fine

Apr 13, 12 5:14 PM

I went to an interesting talk today. Mike Masnick, founder of Techdirt, was presenting his report “The Sky is Rising”. The report says, in short, that based on analysis of “the numbers”, the market and opportunity for content and entertainment is growing. “We’re living through an incredible period of abundance and opportunity, with more people producing more content and more money being made than ever before” as the report puts it.

The predictions of doom often heard are just the “legacy” entertainment industry trying to cling to the past, according to Masnick, whose report suggests something very different.

I hope the report is right because I think the important thing is that the opportunity gets bigger overall and a bigger creative sector is able to invest more in making more content products to serve an expanding market – in other words exactly what Masnick says is happening. We should worry less about whether the future winners are the same as the past. I haven’t read the report because I hadn’t heard of it before today but I will and you should. I guess time will tell if it’s right.

The interesting bit for me was that the talk was billed as being about copyright but Mike didn’t really address that to begin with. I was interested in what copyright had to do with it – after all copyright enables you to decide who can use your stuff, it doesn’t tell you what you should decide. It lets you to choose your business model rather than forcing one upon you. On that basis it would be logical to assume Masnick is a supporter of the copyright status quo.

The answer was a bit confusing (but it’s clear at least that while he supports copyright he doesn’t do so wholeheartedly or uncritically).

Masnick used the example of VCRs in the 1970s as an example of an attempt to stifle innovation (the VCR) by the incumbent industries (the MPAA) using copyright law as their weapon, and the great opportunity that opened up to the movie industry as a result of losing that case.

He went on to talk about free speech being threatened by copyright when sites containing infringing content alongside non-infringing content are closed down. Along the way he mentioned a site which closed when it was sued but later, after it was shuttered, went on to win its case(I think he said it was called Veoh but that one seems to be alive and well). He also mentioned the availability of out-of-copyright books on Amazon (relatively high) versus in-copyright but very old books (relatively low).

I think he was trying to say that copyright law at present is too restrictive, and that where it is loosened good things happen, although he strayed from his preference for “evidence based policy” with the anecdotal answers he gave – and of course there are many similar anecdotes on the other side of the argument. To be fair, trying to prove a negative is hard and so finding evidence that things would be better or worse in a different environment is hard.

Perhaps I’ll find a fuller answer in his evidence-based report. However, it struck me that a pretty good answer had already been presented by him earlier in his talk.

According to him, everything is on an upward curve. Opportunities for creators, consumer spending, consumer choice, the ease with which someone can become a professional creator, the amount of content produced and so on. The problems are the nice ones to have – discovering content in this flood of choice and so on. If that’s true – and I really hope it is, even it conflicts with what I see – it’s great news and, more importantly, isn’t it also evidence that copyright law isn’t acting as a barrier to all these innovative new players?

Proving a positive is so much better than speculating about negatives, and on the basis of what Masnick told us it would seem he has already done so. Everything in the garden, according to him, is already rosy. So rather than worry about all the imagined opportunities that copyright supposedly restricts entrepreneurs from pursuing, shouldn’t we be thinking about the bigger market he says it has created and thinking up ways to exploit it and grow it still further?

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Lets play a word game

Mar 27, 12 2:45 PM

Consider this quote from The Guardian:

A cross-party committee of MPs and peers has urged the government to consider introducing legislation that would force Google to censor its search results to block material that a court has found to be in breach of someone’s *********.

Or these ones, from the parliamentary committee itself:

Where an individual has obtained a clear court order that certain material infringes their ********* and so should not be published we do not find it acceptable that he or she should have to return to court repeatedly in order to remove the same material from internet searches.

and

Google acknowledged that it was possible to develop the technology proactively to monitor websites for such material in order that the material does not appear in the results of searches. We find their objections in principle to developing such technology totally unconvincing. Google and other search engines should take steps to ensure that their websites are not used as vehicles to breach the law and should actively develop and use such technology. We recommend that if legislation is necessary to require them to do so it should be introduced.

not to mention

Whilst damages for breaches of ********* are never as good as preventing the breach in the first place, the maximum level of damages that has been awarded is too low to act as a real deterrent. We recommend that the courts should have the power to award exemplary damages in ********* cases, if necessary by giving the courts that power through legislation. In deciding whether to award exemplary damages the courts should take into account the financial situation of the media organisation concerned.

How about this one from Tim Berners-Lee

It’s mine – you can’t have it. If you want to use it for something, then you have to negotiate with me. I have to agree, I have to understand what I’m getting in return.

What do you think they’re all talking about? What word have I asterisked-out?

If you’re guessing “copyright” you are, sadly, wrong. However it fits, doesn’t it?

They are, as you probably guessed, talking about “privacy” or personal data in one form or another.

The reason they can so easily substitute for each other is because they’re so similar. Copyright, like “privacy” or personal data belongs to someone. They choose how much of it to put in public and on what terms. They choose how it can be exploited by others and they have the right to prevent it. They are both protected by laws which are intended to protect the personal, commercial and moral rights of the owners.

Yet despite the obvious parallels between copyright and “privacy” they seem to often be regarded in almost opposite ways. While preserving the sanctity of “privacy” (whatever that actually means) is uncontroversial – even the normally shrill Cory Doctorow says “I like the idea of strong privacy legislation” – the idea that copyright should apply to the internet in anything other than the most rudimentary fashion creates a huge and impassioned outcry.

Perhaps this is to do with the fact the copyright is so often associated with big companies, who are easily and casually reviled – sometimes just for their big-ness. Anti-copyright activists often take aim at Disney or Newscorp and accuse them of trying to prop up an outdated and unfair media monopoly.

It’s harder to be so absolutist at the other end of the scale. Everything I have ever written, every photograph I have ever taken is covered by copyright. The same applies to you. It could also be my living. But protecting it online is virtually impossible. Anyone who has tried to get a picture or video removed from websites, sometimes many websites, knows the impossibility of the task. Getting compensation is a virtual impossibility. The idea that someone might ask before using my stuff is almost comically naive. Getting paid by even a tiny minority just a fantasy.

So where do my privacy rights (good) end and my copyrights (bad) begin? Is it when I publish something? Is it when I try to make money from it? Is it when I do a deal with a media company to use my work? Is it when I get successful enough that I collaborate with other creators, work together to be more successful and become, as if by magic, a company rather than just a person (media companies, after all, are just ways that creative people organise themselves to create more success).

For me, what is good for one is good for the other. Copyright is personal, just as much as it is corporate, and it’s the engine of so much economic and cultural good. The polarised attitudes highlight how dishonest and unsophisticated the debate has become.

Copyright is property. Someone created it, invested time, intelligence, creativity and probably money in it. It belongs to that person, and they have the right to choose whether or not to share it.

If they do, it’s a good thing: it advances our culture and our knowledge, it inspires others to create more things, it moves us forward as well as entertaining and delighting people. We should want to encourage more things to be created and shared and copyright does this.

Those who create and share should be able to expect a reward just as those who seek to protect their privacy expect to be able to prevent it being invaded.

Copyright needs to be better protected, and that means having practical means to do so as well as the laws to base them on.

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breaktheinternet.info

Mar 16, 12 9:41 AM

While I was writing the previous post, it occurred to me that gathering hyperbolic claims like the claim that something will “Break the Internet” in one place might help anyone trying to make sense of them. To assist with this task I would like to invite you to join me.

I am setting up a new website, embryonic for the moment but it’s up, called www.breaktheinternet.info. Its purpose is to document, with a quick note and links, any hyperbolic and seemingly catastrophic claims that some proposed change will end free speech, break the internet or cause some other sweeping disaster.

By documenting them we can perhaps help inform a real, honest and sensible debate about important issues. There are two sides to every argument, and if you’re the referee you need to hear them both. I have put a few links there to get it going

So rather than allowing either side to simply dress their commercial interests up as existential threats to the internet, democracy or humanity, lets try to get everyone to raise their game and be a bit more honest.

If you have seen anything worth mentioning, please put a comment with a link here or on the other blog… or maybe on twitter with #breaktheinternet

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Breaking the Internet, one absurd claim at a time

Mar 15, 12 5:10 PM

I’m not much of a geek, so I can’t pretend to understand the technical minutae of the internet intimately.

But one thing I do know is that it was designed to be fault-tolerant, decentralised and robust. The basic technology was developed by the US Defense Department, some say to survive nuclear war but certainly to survive dodgy connections, and it seems to have worked.

While we all have our frustrations with the internet sometimes, and whole countries have been affected by interference from their governments, I have never heard of the whole internet breaking down. Even as bits of it fail, the rest carries on regardless.

The internet, by design, is hard to break.

Which means it’s hard to imagine something which would “Break the Internet”.

Yet that phrase, “Break the Internet” is one I have heard with increasing frequency. It is used as a dire threat, a prediction of doom, the ultimate and unimaginably awful unintended consequence of a terrible and naïve mistake.

Often, it is used as a way of explaining to policymakers, who by-and-large are even less geeky than me, why they should not do something they have proposed.

I first heard it when I was involved with the ACAP project. ACAP is a simple way of making content permissions machine-readable, thereby solving the problem of how automated services like Google are supposed to comply with terms of use.

We were on a trip to the USA to introduce ACAP to various industry and government people. It was going down well, in Europe as well as the USA. It was seen as a way of solving a sticky problem without having to legislate and avoided lots of awkward issues like DRM.

Google, who had initially been keen on ACAP and even delegated one of the search engineers to a committee defining its technical development, had turned against it. Presumably, although they never said this, they realised that if they were aware of terms of use they might have to comply with them.

Public statements were made by the likes of Eric Schmidt saying that there were technical problems with ACAP (even though Google had helped design the technical aspects of it) but implying that once they were solved Google would support ACAP. In fact they never engaged with ACAP to try to solve the supposed technical issues, nor explained what they were.

Anyway, the first time I heard the phrase “Break the Internet” was on that US trip. We had visited Google, and privately, on the way to dinner, I was told that the distinguished engineers were saying internally that ACAP would “ Break the Internet”. So however polite they were being, the engineers did not support it and there was little chance of getting much progress.

Obviously such a dire consequence would be cataclysmic, and nobody could knowingly support something which would lead to it.

But we were surprised because we couldn’t think of how ACAP could possibly do such a thing. How ANYTHING could do such a thing? My conversation was an informal one with a non-technical person (a lesser species at Google) and he was unable to explain what it meant – but it sounded bad.

We asked more technical people at Google but they were unable or unwilling to explain. Silence was the stern reply, and the dialogue pretty much dried up after that.

However we did hear the phrase “Break the Internet” again. This time it came from government officials, who told us that while they liked the idea of ACAP they had been told that it would “Break the Internet”.

We asked if this warning had come with an explanation, they said no. When we suggested that it would be a good idea to set up a meeting to discuss this with whoever had said it so that, once we had established the problem, we could fix it they agreed. ACAP after all, was about the end not the means. But the meetings never happened.

I reached the conclusion that ACAP was not some terrible time-bomb ticking under the internet. Quite clearly it couldn’t break anything at all (not least because technically it didn’t really do anything more than a copyright notice in a book – all it did was make licences machine-readable).

What it MIGHT have broken, or at least changed a little bit, is one aspect of Google’s business rationale. The bit which justifies them accessing any website, and using content by default for their various search products, without asking first, without paying any attention to restrictions or conditions which those sites might have specified in their terms of use and without paying money or offering anything other than traffic in return.

But the damage was done. Every politician and policy-maker wanted to be friends with the internet and with Google. All of them wanted to appear progressive and technically ept. None of them wanted to go down in history as the person who unwittingly “Broke the Internet”, and none of them were geeky enough to ask even the simplest questions to explore the substance of this ludicrous claim, or willing to facilitate a conversation which might lead to an answer.

So, even though they liked the idea of ACAP they were scared of supporting it in case something bad happened. Google’s rivals didn’t want to implement it if Google did not. The well intentioned and in my mind quite benign effort which ACAP represented became controversial and demonised.

The politicians and official, I get the impression, just looked the other way, and hoped that in time everyone would learn to just be friends.

Something rather good was lost, temporarily at least, as the result of a silly catchphrase – “Break the Internet”.

Anyway… it turned out that the absurd, hyperbolic and completely false assertion, in private, that ACAP would “Break the Internet” worked so well that the phrase caught on.

Taking advantage of the fact that many people seem to regard Google and everyone who works for it as some sort of super-species of superior intelligence and insight, unattainable by normal humans, the phrase came out in relation to other “threats” to Google’s (and others’) interests.

Recently David Drummond, Google’s chief lawyer, told an audience at Davos that the European proposals on privacy, specifically the “right to be forgotten” would – yes – “Break the Internet”. Again, clearly absurd, but seemingly taken seriously by those without the confidence to challenge it.

In relation to PIPA and SOPA there were numerous articles and blog posts making, spookily, the same prediction. These pieces of legislation, designed to reduce copyright piracy and help media organisations survive, would “Break the Internet”.

We can all chuckle at this, but it’s not funny. However little this claim stands up to scrutiny, those it is made to rarely if ever have the confidence to challenge it. It’s preposterousness is exceeded only by its effectiveness. It is a crazy, disingenuous, self-interested, untruthful and alarmingly potent claim.

So I want to challenge it, and other equally absurd claims like “the end of free speech” which runs a close second when it comes to silly predictions, and I want to show it up for the dishonest and false allegation it invariably is.

I want to appeal to everybody, especially policymakers and their staff, to not just disregard it but positively reject it as you would any other obviously ridiculous claim. Put it to the test, probe and enquire, find out what is really meant and if you discover that the reality doesn’t live up to the claim then you should deprecate not just the claim but all the evidence or claims put forward by that source.

Demand honesty, demand rigour, demand truth and punish those who would seek to deceive you by ignoring them.


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Paying publishers will “slow down the internet”

Mar 15, 12 4:36 PM

Quite a moderate view from Eric Schmidt, in response to the proposal that German newspaper publishers get a revenue stream from companies which aggregate their content online. The full quote is quite telling, though… “I fear that such a regulation would slow down the development of the Internet because it creates additional costs and leads to inefficiencies”. Equating cost with inefficiency is interesting, it suggests that the most efficient (and therefore best) company is one with no costs. It also suggests that cost is, somehow, bad – free is always better. 

Eric Schmidt works for Google, a company with a 65% gross margin and only one significant revenue stream supporting all their loss-making projects, and who pay nothing for their key resource (other people’s content). They do, however, charge for their own service (advertising), creating cost for other  people. Wouldn’t it be more efficient, therefore better according to his theory, if they gave it all away for free?

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The German solution for newspaper revenues: two cheers, two boos

Mar 7, 12 5:50 PM

The German government is planning to introduce a new right for newspaper publishers to charge ISPs, search engines and aggregators for use of their stuff.

Two cheers, I suppose, because newspapers need all the help they can get when it comes to making money online. They have been pushing for this for a long time and it will provide a much needed new revenue stream.

But two boos, too, because it doesn’t fundamentally solve anything and in my view it risks making some things worse.

The logic, as I understand it, of this solution starts with the observation that consumers ARE paying for content online, they’re just not paying content companies.

Everyone buys a service from an ISP, for example, who makes money from providing users with access to content. Aggregators and search engines are exploiting content and making money from it by selling ads, but not giving any to publishers.

So the solution, in a similar vein to the blank tape levy of old (popular in some parts of Europe), is to collect money centrally from the businesses which are making it and then distribute it to the deserving content owners.

The reason it makes me uneasy is because it uses collective licensing as a primary revenue stream. You don’t sell your product to anyone, you just sit back and let a collective body go and and sort-of tax them, then bank the cheques when they come in.

That’s fine for secondary revenue streams (people photocopying your newspaper for example) where there is no practical alternative, and it works well in many different guises.

The problem in general with using collective licensing as a primary revenue stream is that doesn’t create many incentives to really innovate or invest. If your money comes rolling in from the levy more-or-less regardless of what you do, what is the incentive to differentiate your product and fight for the most customers and most attractive offer?

If you want to negotiate your own deals with aggregators. operate on different terms with different search engines, play one ISP off against the other, offer more rights in return for more money (and less to someone else) or do a whole range of the things successful businesses do, it is made harder or impossible with centralised, possibly mandatory, certainly regulated, licensing in place.

Now in this case I have a lot of sympathy with the German publishers, and they have clearly made their case well to the government.

The sad truth is that there is no primary revenue stream to fight for – advertising isn’t enough, paid models for newspaper content are notoriously hard to make a success of and few if any search engines or anyone else have any reason to negotiate and share revenue.

So given a choice between two inadequate and seemingly stagnant revenue streams what other options do they have? Securing some sort of revenue from those who financially benefit the most from their content seems a lot better than nothing.

But better yet would be to tackle the real root cause of this problem: the protection unfairly given by law to so many of the internet players. The failure of a true market to emerge for content products and companies online is a consequence, largely, of bad law and until it is tackled things won’t substantially change.

The Digital Millenium Copyright Act, the European E-commerce directive and other laws like them need to be substantially overhauled and re-balanced. Unfortunately that is beyond the scope of national governments, in Europe at least, so the best that can be done is to try to minimise the impact of the bad laws with new, slightly less bad ones.

It’s better than nothing. But a lot worse than a true and vibrant market for content products in the digital realm – and could inhibit that market from emerging if the collective approach becomes too entrenched.

What the Germans have here is a bird in their hand, in place of several thousand in the bush. But they’re all sparrows: not very nourishing either way.

The fact that newspaper publishers will soon be looking longingly at the resulting revenue in Germany is a sign of how bad things have got, not that this is really much of a solution.

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Back to BO.LT

Mar 7, 12 4:48 PM

I wrote before about BO.LT, the startup which is seemingly built on a cynical exploitation of the worst aspects of the Digital Miilennium Copyright Act.

BO.LT emailed me today to tell me about the exciting new features they will be launching soon – apparently it will make it easier to “discover interesting things” and “get lost in millions of pages of content that people liked so much that they had to keep a copy”

Don’t worry, all the old functionality is still there, copying fans! (By the way, leaving aside the obvious copyright issues, does their new approach remind you of anything? They sent a picture with their email showing their new interface – I wouldn’t want to infringe their copyright by posting it here but from what I can tell it’s basically the same as Pinterest. Surely they’re not just jumping on another bandwagon?)

They seem to have brought their site down while they reconfigure but I was able to log in and just noticed on their newly blank homepage the box you see below.

Just a reminder about copyright. It means “the right to copy”. Something which bo.lt clearly does not have in a huge proportion of cases – despite the liberal use of the word “copy” as if it’s generally OK.

The good news is that their initial idea seems to have been a failure. The bad news is it looks like they’re staying in the business of showing contempt for copyright. Lets hope it’s no more successful this time…

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Football DataCo loses again

Mar 7, 12 3:02 PM

Some more good news from the courts.

Football DataCo has lost its latest case in the ECJ relating to their efforts to protect football fixture lists.

This has been going on and on for years, and when it all began I took a close interest due to my job at the time managing IP for a big newspaper group which wanted to use fixture lists but didn’t see why it should pay for providing millions of pounds worth of publicity.

In the original case DataCo was claiming that anybody who wanted to use football fixture lists, or information from them, needed a licence, because the lists were a database and therefore covered by database rights.

The ECJ, in 2004, disagreed and said that database rights did not apply in the way that DataCo claimed. This was important quite broadly because it, quite rightly in my view, effectively set quite a high bar for database rights protection.

This caused some problems for a number of sports who had built their commercial model on being able to licence data to, in particular, betting companies.

Prior to the judgement it was generally accepted that database rights applied to almost anything (at one stage I remember claims that the names and numbers of players were protected and couldn’t be used without a licence).

DataCo, always chipper, decided that despite the ruling the ECJ was still wrong and so they started to start another lawsuit to try to assert their rights again, this time claiming copyright instead of database rights. This always seemed rather tenuous to me, because the amount of creativity and originality involved in writing a list of teams, dates and venues doesn’t seem huge.

They sued a number of people including Yahoo who, to their credit given that this is hardly their core business, saw it through. Amazingly the ECJ took the case for a second time. And last week they rejected it.

There may be many in sport wailing about this because it is the ambition of most sporting bodies to claim a share of any money anybody makes from any activity linked with their sport, and this makes that a lot harder.

Betting, in particular, provides an important revenue stream for many sports which is only possible if the sport can find a legal basis for making a charge (or, of course, by negotiation, since both sides have something to lose as well as gain from the other).

However it’s good news for common sense. If the law makes such small fragments of factual information licensable it is seriously altering the balance of IP laws which have always done quite well at protecting creativity while leaving facts unfettered.

So, three cheers for this ruling and a big pat on the back for the litigants who were dragged through it by DataCo and who saw it through.

 

Disclosure: In my previous role I was responsible for negotiating with Football DataCo on this and other issues. In my current role I have been involved in negotiating with them about different matters on behalf of media groups.

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