Author Dominic Young

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Interested in copyright as the underlying foundation of creativity and culture. Have been involved for a long time in the business and legalities of creating, licensing and managing copyright and copyright dependent businesses. Previously Director of Strategy and Product Development for News International with responsibilities over the previous years spanning copyright, domain names, trademarks, licensing, product development, strategy, digital innovation, libraries and archives, public policy, lobbying, commercial and industry level negotiation. Founder of the News Media Coalition, the Automated Content Access Protocol. Former Chairman of the Newspaper Licensing Agency. 

 Dominic Young

Some “facts” from the myth-busting Europeans

Oct 26, 12 11:38 AM

Here’s an odd press release put out by the European Commission. It contains what it says are ten “facts” about the media and content industries.

Strangely, the release doesn’t back up any of these “facts” with “evidence”, “research” or “sources” (other than a tiny link to this page which in turn puffs a report which says it aims to “offer a reliable set of data and analysis” about the media and content industries).

The recipent of the press release is presumably required to read the 167 page report for themselves in order to understand the basis for the “facts” it contains. Or, more likely, not bother and just accept the “facts” at face value.

That doesn’t mean they’re wrong, although one or two of them seem odd to me based on my own knowledge and experience.

Some seem depressingly plausible (“fact” 3: 70% of music sales are digital, but only 35% of revenues, source unexplained; “fact” 8: power has shifted from production of content to distribution) and should worry anyone who cares about creativity.

Others seem completely vague and strange (“face” 6: In most cases [the decline of the printed press] started earlier due to changing patterns of consumption and may also be the result of a more competitive market with reduced profit margins and decreasing prices) and offer no actual facts to even attempt to verify.

This seems strange coming from the European Commission, an institution so sensitive about inaccurate or mis-interpreted “facts” about itself and its behaviour that its UK office has a prominent “Mythbusters” section on its website to try to rebut such stuff.

I wonder why they thought these “facts” would be helpful and what they are supposed to achieve. Heaven forfend that they might result in vague assertions being presented as actual “facts” as a consequence of having the Comission’s good name attached to them.

Perhaps they might care to update their website with sources of the data they have used to compile their “facts” and remove any which are, in reality, just opinions or assertions.

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Saying no to Google News: common sense or suicide?

Oct 22, 12 11:35 AM

Brazilian newspapers have, en masse, withdrawn their content from Google News.

The response, not least from Google itself, is the usual mix of unhelpful and self-interested grandstanding. Google’s comparison of themselves to a cab driver bringing customers to a restaurant is particularly absurd, since most restaurants want customers who can pay, and aren’t interested in being flooded with people who can’t or won’t.

For me, the best thing about this move is it will create some real evidence which can be used in place of all the posturing and crystal-ball gazing which normally accompanies any discussion of the merits or otherwise of having content in Google search results.

The bald facts are pretty stark for most newspapers.

If they’re ad-funded, the majority of their revenue is generated by a relatively small proportion of their users. More traffic does not mean more money, necessarily.

Traffic from Google, or Google News, is of varying value and in many cases a large proportion of it is close to zero value to the newspaper. It neither delivers a significant direct income from ad sales, because of excess inventory, nor does the user go on to become a loyal and frequent visitor. Often, users are satisfied with the content they see on Google News and don’t visit at all. Even when they do, their next move is straight back out of the site again – so called “drive by” visitors.

Last time I looked at actual logs it was clear that the visitors most likely to become loyal were ones who used your actual newspaper title in their search terms. In other words having your home page in search engines was enough to target the most attractive potential visitors.

So if your goal is to focus on those users who might become loyal and frequent, high-value, visitors (the actual paying restaurant customers, in Google’s analogy), you might want to experiment with trying to control who comes and who exploits your content. In the real world it is called marketing, knowing your customer, having a strategy for targeting the people you’re most interested in. Withdrawing from Google News, given that so little revenue accrues from it, is a low risk thing to do and will potentially deliver much valuable data to help separate fact from speculation.

If, into the bargain, Google values your content enough to really want it, then maybe they will sit down and discuss a deal. If not, nobody has lost anything, and once you have learned enough you can decide if, how and when to put some or all of your content back into search.

I look forward to seeing what happens, and am pleased to see someone actually do something instead of just endlessly talking about it.

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What is a “temporary copy” and who cares?

Oct 17, 12 5:52 PM

An obscure and technical piece of copyright law has been stretched out of recognition by the aspirations of entrepreneurs. What is the “temporary copying exception” to copyright and what was it really supposed to do?

I sometimes wonder whether the history we are taught would be recognised by the people who were actually there.

Recently, perhaps due to age or perhaps due to the pace of change, I have heard people talking authoritatively about things I personally was involved with, and getting it completely wrong.

One such thing is “temporary copies”. This is a concept which exists in copyright law making certain kinds of copying legal even when there is no explicit licence, which featured in the NLA’s web licensing case with Meltwater. The claim that the legal exception for temporary copies covers  paid-for media monitoring was rejected by the courts – and some people are outraged. Browsing has been rendered illegal they say. The internet will break if the law stands.

Of course it’s fine to say that you think the law is wrong and should be changed – and equally fine for people like me to disagree. But to say that the law will destroy the internet is, aside from being self-evidently untrue, also a rather dishonest way of trying to post-rationalise poor business and legal judgements of the past.

The temptation of the entrepreneurs

The legal concept of temporary copies solves a lot of problems for entrepreneurs. Building a business involving copying other peoples work, but without the need to get permission from them, makes otherwise impossible businesses viable. If you can make your idea fit within the scope of “temporary copies” you have a business, if you can’t you don’t. Since some of the biggest businesses on the internet, such as Google, have been built on the idea of making copies without asking first, the prospect is tantalising and it’s easy to lull yourself into thinking you’re covered.

So it’s easy to see why the law on temporary copies has been subject to rather optimistic interpretation by those who need to stretch it to cover their business, and rather narrower interpretation by those who would rather avoid loopholes which reduce the control they have over their content. I come from the narrow interpretation side of that argument, and I actually had a small involvement in the process which led up to the law in question being enacted.

The rather less tantalising reality

But back to the law. What, according to it, are temporary copies?

Here’s what article 5.1 of the Copyright Directive (officially and pithily known as “Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society”) says:

1. Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2.

This is the clause whose drafting I got peripherally involved with, the little bit of history I glimpsed in the making. It is transposed, more or less word-for-word, into section 28A of the UK Copyright Designs and Patents Act.

I guess it’s easy to see how, by simply glancing at this wording, you could persuade yourself that your service – for example your media monitoring service – might fall within it.

It’s a little harder if you look at the wording carefully. Even if you can persuade yourself that “transient and incidental” applies to you, and that because your business depends on technology anything you do is automatically “an integral and essential part of a technological process” (and I would say neither applies to a business like media monitoring), it’s kind of tricky to get past the overarching stipulation that your activity has “no independent economic significance” when your whole business depends on it.

But what was the intention of the law?

Even if you do manage to convince yourself it’s all OK looking at the text, the Directive provides some explanations in the form of recitals which are designed to help interpretation.

Recital 33 says:

The exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, which are transient or incidental reproductions, forming an integral and essential part of a technological process and carried out for the sole purpose of enabling either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject-matter to be made. The acts of reproduction concerned should have no separate economic value on their own. To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently, provided that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information. A use should be considered lawful where it is authorised by the rightholder or not restricted by law.

This makes things a little trickier. It’s more explicit that the exception is designed to cover only very low-level technical things rather than whole business processes. It reminds us that anything with “separate economic value on [its] own” isn’t covered. It specifically states that acts which enable browsing ARE included, making any hyperbolic claims that this law outlaws browsing rather feeble. And it points out that if something isn’t authorised then it isn’t covered either, which makes it hard to depend on this law if you haven’t asked permission and harder still if you have actually been asked to stop.

If you (or your lawyers) thought hard about it, you would probably conclude that a court is the last place you want to have this argument. But it has been forced into court anyway, and it’s hard to see how they could have reached any different conclusions, given that courts decide cases based on what the law actually says rather than what people wish it would say.

How did it get written that way?

As it happens, this particular clause was subject to an incredibly long-winded and arduous process of negotiation, discussion and debate before it was finalised. One thing it is not is ill-considered. My small part was on the side of content owners; I worked for a newspaper company and participated in some meetings on behalf of them and a media industry trade group.

The heart of the issue as I remember it was a tension between ISPs (mostly at the time dial-up providers and the large telcos who provided the bandwidth and interconnections for them) and content owners.

Content owners were keen to maintain control over content and ensure that the law didn’t create loopholes for infringement to take place.

The telcos were worried that very often copies were made as an unavoidable part of the technical process of sending data around the internet – such as in routers, where technically data is copied, forwarded and then instantly deleted – should not be regarded by the law as infringing copies just because they weren’t specifically licenced.

Everyone was sympathetic to each others’ concerns, the question was how to get it worded in such a way that it didn’t create huge loopholes or unintended barriers. In other words, turning a clear understanding about the intention into workable language. Equally, using language which was too specific to the technical issues of the day would quickly make the wording obsolescent, along with the technology it referred to, so it had to try to find generic language which would still be relevant in the future.

The important thing to note is that this clause was intended to address a very small and narrow issue. This is reflected in the wording. Read it again, but now think about data packets passing through routers and switches, or caches being created by ISPs rather than media monitoring services being set up without the irritating need to ask permission to exploit peoples stuff.

It was a long time ago but I have some memories of some of the discussion of some of these phrases

“transient and incidental”. This was really about the copies made in routers. Technically speaking, data is copied, but only for as long as needed for the router to function. The copy is really an irrelevance, fleeting in duration and nobody ever sees it. It can also apply to cached copies which hang around a little longer but are not necessarily infringing (see below).

“an integral and essential part of a technological process”. There was a big discussion about caching here (among other things). At the time most internet access was dial-up and the biggest players provided services for free to users. To save money some of them operated large caches of popular content, serving their users directly from the cache rather than fetching the content from the original site’s servers. This caused some consternation, because it meant the owners of the sites never knew their content had been accessed, couldn’t charge for ads, sometimes old content was served instead of newer updates and so on. However, there is a technical way to control caching, using a setting in the (invisible) http headers which are served along with content. As long as ISPs respected these settings (which were integral to the technological process of serving web pages) then their caches were fine, as soon as they started ignoring them they weren’t. In other words the site owner should always have control.

“whose sole purpose is to enable a transmission in a network between third parties by an intermediary”. I email a file to you. The file goes from me to my ISP, my ISP to any number of routers operated by any number of third parties, then to your ISP and finally to you. Lots of copies are created, most of them in systems which have no direct relationship with either of us. These copies should not need their own licence so the law creates an exception for them.

“whose sole purposes is to enable a lawful use”. I look at a webpage. My computer creates a copy in memory and maybe on my hard disk. These copies are just allowing me to look at the webpage and so should not need their own separate licence (although I think it’s implied in any case). So the law created an exception for them.

“which have no independent economic significance”. This one seems to be one of the most wilfully misinterpreted. I have heard the argument made, with a straight face, that a company which keeps complete copies of entire websites in their servers in order to use them for their business is covered by this exception. The logic seems to be that although they keep copies of the entire content, and they depend on them to do business, they don’t make more than small snippets available to their users and so the copies in their servers have no economic significance. Since this is self-evidently asinine and self-justifying I don’t think it needs a lengthy deconstruction – it’s obviously absurd.

The legalities drag expensively on…

The NLA and Meltwater litigation rumbles pointlessly on, and so all this will be subject to even more scrutiny by the courts.

Fortunately for them, they have copious sources which can help them understand the process which led up to the wording. As well as the law in its final form, and the recitals explaining some of the intent,.the whole official and political process was documented as it went along. There are also plenty of people who participated who can help round out the picture if necessary. The courts won’t need to use the forensic skill of the ancient historian to determine what the law was intended to achieve – they can get the first-hand version. I find it hard to see how they could change the conclusion of the lower courts whose judgement, in my view, reflects the letter and intent of the law.

Meanwhile back in the real world, more sensible things are happening. Meltwater has agreed a licence with the NLA. They’re doing business, their clients are getting a service, so are the clients of their rivals who are on a level playing field. The internet is still there, it’s not broken. Browsing is still legal. A few angry businessmen, put out by the idea that someone else’s property isn’t available as a free resource for them, continue to scream and shout and look foolish.

Move along now, nothing to see. Time for a nice cup of tea.

DIsclosure: I am a former chairman of the NLA and still do occasional freelance work with them and their members

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That’s not the answer; now, what’s the question?

Oct 12, 12 11:15 PM

David Leigh came up with an idea to “save newspapers”. Every broadband customer would be forced to pay £2 per month to fund newspapers. Lots was subsequently written about it, most of it contemptuous.

The problems with this idea are so obvious and numerous that I didn’t bother writing anything about it to add to the cacophony of derisive comments (the only person I noticed having something nice to say about it was Leigh’s Guardian colleague Roy Greenslade). He is by no means the first to have thought of it, just the first to have not immediately realised that it could never and should never work.

The obvious unfairness inherent in picking out a particular sub-sector of the media to benefit. The lazy complacency which would inevitably result from guaranteed, unearned income rolling in every year. The perverse incentives which a traffic-based method for dividing up the money would create, not to mention the barriers to entry. The admission of defeat inherent in the whole proposal. The obvious challenge of forcing users to pay a new tax whether or not they like it. The conflict between a press beholden to government subsidy and a free press which holds politics to account.

The more you think about it, the longer the list of objections gets.

But lurking within it are two questions which are actually more relevant and interesting.

How can a newspaper like the Guardian (or any creative endeavour for that matter) which succeeds online be rewarded for its success? Answering this conundrum answers all of the challenges the internet currently poses for professional creativity.

Obviously, not adopting a model which abandons not just revenue but any prospect of achieving revenue would be a start. Nothing can stand in the way of a company hell-bent on oblivion, and spending a fortune to make a product which you give away to everyone is pretty much the definition of a business which will fail.

But the second question is the one David Leigh and others should really be posing for legislators.

Why is it actually impossible right now for a business model which rewards popular success to be found?

If you’re going to ask politicians to help solve your problems, this is a better one for them to get their teeth into rather than simply asking them to write you a cheque.

Copyright lies at the heart of answering this conundrum. Where copyright is weak we see hyper-inflation of copying (so its easy to feel successful due to the illusion of popularity) but a complete collapse in value. This is what is happening online and it prevents viable business models even being imagined. Where copyright is strong, as we have seen from the last few hundred years of analogue media, we create wealth, choice and diversity.

It doesn’t have to be this way, and a more sustainable solution can be found by looking at the generic issue rather than making special pleadings for businesses and products which might just be dying of natural causes.

Once it’s possible to have a good newspaper business online, it will be up to the skills and ingenuity of The Guardian and others to actually run one. If they succeed they will be rewarded with a viable product generating lots of revenue and which has no need for taxpayer support. If they fail it will be their own fault, but someone will take their place.

The first thing the politicians need to do is get a grip on copyright.

The first thing the Guardian needs to do is just get a grip.

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Content farms: slave labour or green shoots of hope?

Oct 12, 12 5:24 PM

Several people have drawn my attention to this article on GigaOm talking about content farms as a democratising force for journalism.

Content farms have been criticised for turning content into a commodity, where quantity and optimisation matter more than quality. I think this is, to quite a large extent, right. Anyone can churn out articles and see them appear in various places as long as they’re prepared to write about whatever the algorithms say they should and accept very low remuneration.

The article highlights an interesting flip-side to this though. Content farms can lead to as what the article rather grandly calls “the democatisation” of journalism. Where talent shines through and is spotted, the content farms can act as a sort of talent pool.

To me this is what the media business has always done. In various ways it has found and promoted those with talent and rejected those without it. It has done so imperfectly and unfairly in many cases, but it’s obvious that the people who float to the top of the old-media ecosystem are there for a reason. It is an effective talent-filter.

However getting your foot on the first rung of the ladder is very very hard and many people give up before they have even done it. One hope we might all have for the internet is that it makes that first rung easier to reach. Another hope, so far thwarted, is that the rewards for reaching the very highest levels are greater too.

Surely that matters most. Without greater opportunity, which can support more professional creators. where will that first rung lead to? Where will Matt Miller, highlighted in the article as having been plucked from the ranks of zero experience would-be sports writers to a paid staff job, go next?

It would be great if the answer was that he could reasonably expect a long and lucrative career in online journalism which lasts as long as his talent and enthusiasm. Even better if the same could be said for thousands of other would-be writers. Better yet if a healthy and competitive marketplace made them valued superstars by their employers.

If that were true then the undoubted and hugely valuable potential the internet has to reduce the lowest rung of the ladder and allow talent to shine would be all the more exciting.

As it is, though, it’s hard to get excited about the “democratisation” of journalism. The article in GigaOm, in defending content farms, makes a good point about creating opportunity. But at the moment those opportunities are few and far between, and if democratising journalism means displacing overpaid old-guard journalists with newer, cheaper, version (however talented) it’s not a very compelling vision of the future.

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Copyright and money: spot the difference

Oct 10, 12 12:43 PM

By me in City AM…
I’ll post it here later but in the meantime head over there

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The Times and Google: what changed?

Oct 9, 12 3:44 PM

Quite a lot has been written recently about The Times allowing Google to index some of its content. Some of the coverage has suggested this is a capitulation by The Times which had previously taken allowed very little indexing.

I think they’re missing the point. The most interesting part of this story is that The Times “will begin showing articles’ first two sentences to search engines” (according to Paid Content).

This is a big change of stance by Google. Back when I was involved in the ACAP project they resolutely refused to contemplate anything which would allow a site owner to determine what part of an article might be visible in search results (the so-called snippet). Nothing in the robots.txt protocol gave site owners the ability to specify their preferences to this level of detail and, although ACAP did, Google refused to engage with it.

So the story here is not about The Times capitulating, mainly because they clearly have not. The story is that Google have met them in the middle and agreed on a way of indexing which is agreeable to both of them.

This is exactly the sort of thing which ACAP was meant to achieve, and if Google have softened their rigid approach to the way they’re prepared to operate, it is only a good thing.

For The Times it means they can use Google to help, not hinder, their business strategy. For Google it means their users see a large and visible gap in search results being filled.

I think that’s what you call a good outcome.

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The Guardian: a dating site which runs a newspaper on the side

Jul 18, 12 6:28 PM

Digital first, redundancies second, profits last

Just over a year ago The Guardian announced its new strategy to go “digital first” and move its efforts away from print towards the internet. My post about it at the time was titled, perhaps a little cynically, “throwing in the towel”.

Their plan was to increase digital revenues to £91m in five years, and manage the decline in print revenues along the way.

So, how’s it going?

They announced some figures the other day and they are bleak. Operating losses have increased to £44.2m – a massive 42% increase since they announced their digital first strategy. Newspaper sales are in freefall (down 10% in a single year).

They are responding by reducing editorial budgets and laying off journalists.

Digital advertising revenue is a little ray of light; it has grown by 26% since last year. That sounds impressive until you notice that the new total is just £14.7m. Annually. From a weekly audience of 5.8m people. The surprise isn’t how much they are making but how little – last year it would have been just over £11.5m.

The total digital revenue is a much less awful £45m (up 16.3% but still a long way off their goal of more than double that). The extra money comes from sites like their weirdly successful Soulmates dating service, as well as other unspecified revenues.

Not much of those “other” revenues appear to be from people actually paying for their content – they have only managed to find 17,000 people willing to pay £9.99 a month for their iPad app. Hardly surprising when the same stuff is available for free on your iPad using the built-in web browser.

So it would seem that on the digital side, they make more than twice as much from other services than they do from their editorial websites. Which makes the newspaper website seem like a rather expensive loss-leader for a profitable dating site.

No wonder they’re responding by cutting editorial jobs – how many dating subscribers does a war correspondent persuade to sign up?

Sadly, all this is obvious and predictable, except, it seems, to the Guardian. If they want to be a newspaper, a journalism business, a crusading power and influential voice, then making journalism profitable is key.

The fact is that if you keep making huge losses and have no source of income to pay for them, you’re doomed.

Even if you have the special status of the Guardian, and so can ignore normal commercial realities and make irrational investments in your least profitable products, at some point simple maths will catch up with you. Other newspapers making similarly irrational decisions at least have people with deep pockets backing them.

So the Guardian’s plan seems, still, to be to hang on and hope that at some point their huge online audience turns into a decent business.

Perhaps they’re hoping the hundreds of millions of pounds of content they give for free to millions of commercially worthless readers will result in an exponential rise in lonely hearts reaching out across cyberspace using their peculiarly out of place dating service (certainly a new twist on the idea of “freemium”).

History and common sense suggest that neither thing is very likely. Anyone building a turnaround plan on simple blind hope has, by definition, to be prepared to suspend their rational faculties before they can pursue their plan with gusto.

That’s what they did when they announced their new strategy last year. As the results become clear, though, they need to perhaps try to relocate a few rational thinkers and start making sensible decisions.

They don’t have long. Their figures state that they will shortly have £300m in the bank, having disposed of some assets such as radio at a considerable discount to their book value.

Even if things stay the same for the next few years, unlikely given the unbroken and decades-long failure of the free content model for newspapers, it means they have a little under seven years before they run out of money.

If they keep increasing losses at the current rate, it will much much sooner. And if they think that online advertising is going to cover the £44m gap to get them back to at least breaking even then I’m afraid the fantasists are still running the company strategy.

If things do start to turn around it’s still going to be a race against a dwindling cash pile before anyone can say the problem is fixed, all the more so if they continue to rule out the seemingly innocuous idea of asking people to pay for their most expensive and valuable asset – their content and product.

In the meantime, redundancies all round. Which, with 650 journalists, might not be a bad idea anyway.

But one simple bellwether of success for newspaper companies is their ability to invest in journalism. It is their raison d’être, a simple expression of their success and mission.

When they start to cut this investment merely to try to flatter the bottom line it’s a sure sign that the end is nigh.

Lets hope a bunch of lonely people turn up soon to save the day!

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Debating copyright changes? How inconvenient! Lets not bother.

Jun 22, 12 10:25 AM

Wherever we stand on the issue, one thing we all know is that copyright law is subject to intense and extended debate. Some say it should be relaxed, some say it should be tightened up, but the law doesn’t actually change without a big debate.

But what is this?

“28ZA Power to add or remove exceptions to copyright

(1) The Secretary of State may by regulations amend this Chapter to
provide that any act is or is not an act which may be done in relation to
copyright works notwithstanding the subsistence of copyright.

(2) Regulations under this section may—

(a) make supplementary or transitional provision;

(b) make consequential provision, including provision amending
any enactment or subordinate legislation passed or made before
this section comes into force.

(3) The power to make regulations under this section is exercisable by
statutory instrument.

The UK is proposing that the Secretary of State (aka a here-today-gone-tomorrow politician) should be able to alter copyright law whimsically, adding or removing exceptions to copyright by means of a Statutory Instrument. These are a mechanism in UK lawmaking whereby changes can be made without a full debate and vote in Parliament.

There are lots of circumstances where SIs are the best way of achieving things, especially when things need to be done fast, but copyright law is not one of them.

Copyright exceptions are compulsory requisitions of property. Unlike compulsory purchase orders, if the government decides to give your content away via an exception, you’re unlikely to get paid anything at all. Your ability to stop people using your stuff in ways you don’t like is reduced and if the exception happens to cover something your business depends on, you’re stuffed.

In other words, exceptions need very careful consideration, not a rubber-stamp from a minister who, on recent form, is extremely unlikely to have a clue about the issues.

If that sounds dramatic, consider recent form. Exceptions have been proposed for “data mining” (which involves copying and processing vast quantities of other peoples stuff and which is well served commercial market). And for education, which as well as being an important social function is also a thriving market. The recent Hargreaves review was prompted, according to David Cameron, by Google telling him our laws are too strict. And according to copious recent evidence, as well as many people close to the process, the Intellectual Property Office, which is supposed to advise ministers on IP law, has become the vehicle for the personal ideological views of some of its civil servants.

Now someone (a civil servant no doubt) has tried to sneak a massive and hugely impactful new power for ministers into, er, the Enterprise and Regulatory Reform Bill – that well known home of copyright legislation.

Copyright isn’t a thing for ministers to dish up as a sort of free gift to companies and causes which they want to help. It is someone else’s property, and exceptions should be as narrow and sparing as possible. They should always be subject to a full debate and the onus should be on the government to prove the overwhelming benefit to society which justifies robbing people of their property.

I’m not saying that the case for exceptions can’t be made, I am saying that it needs to be done openly and subjected to a full debate and scrutiny. Something which Statutory Instruments are specifically designed to avoid and parliamentary democracy is supposed to achieve.

Sneaking this in to an unrelated bill is just a way to side-step debate and discussion – not only about exceptions to copyright but about this change too.

There’s democracy in action!

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In the domain of the daft

Jun 13, 12 9:00 PM

Many moons ago I was responsible for internet domains for the bit of News Corp I worked in. This was more accident than design: I suggested we needed to register a few domains defensively and they told me to get on with it.

Because of this I couldn’t avoid getting embroiled, until I gratefully handed the job over to someone else a few years later, in the outer edges of the quite politicised world of domains, and as my involvement straddled the creation of ICANN I saw the whole thing descend into a horrible mess of vested interests and an almost total absence of any focus on what users and customers actually need and want.

This is exemplified by the creation of new Top Level Domains. In the beginning (at least when I was doing it) there were really only three “generic” ones – .com .net and .org (and a few others like .edu .gov and .mil which were only available to very limited categories of organisation).

These carried with them some guidelines about what they were supposed to be used for, all of which were routinely ignored. There were and are also “country code” domains – .uk .fr .de and so on – allocated to individual countries and administered however they fancied.

The thing which brands owners realised, in my case early enough to avoid major problems, was that in order to prevent someone else registering a domain which could be used to damage your brand or which you might want to use in the future, you needed to register it yourself. This was far cheaper than trying to sort out problems later. So most companies and brands have lots of domains registered, including common mis-typed spellings, very few of which they actually use other than to re-direct to their actual websites.

The birth of a scam (aka new gTLDs)

Since domain name registration is a commercial business, those in it realised they were on to a good thing here. If customers are forced to massively over-buy the thing that you’re selling, you’re on to a winner. Conversely, if you can register a domains which you think someone might be interested in later, you can sell them on for a massive markup. So domain speculation became an industry too.

The disconnect between what’s good for domain owners, users and the domain business is becoming obvious already.

The problem was that with so few “generic” TLDs (only one of which – .com – really matters) the opportunity to keep on selling hits a wall at some point. Supply is constrained. This created a nice secondary market – even mundane domains these days have to be purchased from speculators at massive mark-ups. But it doesn’t sustain forever.

So ICANN, the body which oversees such things, started to create new TLDs. You might have heard of some of them – .info maybe, or .name? .mobi, conceivably? .xxx but you wouldn’t admit it? But probably rarely used one knowingly. Especially not the last one. If you register domains for any brand, you probably have a few kicking around, doing nothing and costing money.

Of course someone trying to protect their brands needs to give serious thought to registering every time a new gTLD is issued, just for the sake of an easy life and to avoid nasty problems. Ker-ching! Good news for domain registrars (they have also developed a variation on the scam whereby brand owners can get first chance to register, for an inflated fee of course, when a new domain is launched). Good news for the small number of people and companies who need a domain and genuinely can’t get hold of any version of it for their use. Terrible news for brand owners and everyone else, for whom the change makes no difference at all except increasing costs.

ICANN, pushed along by the vested interests of the domain registration industry (and their own need to continue to exist and charge fees, no doubt) has been slowly issuing new gTLDs for a few years. But it’s still a pretty small list – only 22, some of which are restricted to certain industries.

A wizzard wheeze

So they came up with the excellent wheeze of opening it up much more radically, letting anyone apply to register any word as a gTLD. The fee is steep – $185,000 just to apply versus a few dollars for a standard domain (ker-ching! – they got 1,930 applications bringing in a cool $241,250,000). The ongoing fee is at least $25,000 per year (ker-ching!). And the cost to anyone wanting to protect their brands is whatever the new registrars want to charge (ker-ching x 1,930!).

They announced the list of applicants today and it makes for depressing reading. Far from opening the market up and removing bottlenecks, it reads like a series of land-grabs by speculators and over-ambitious mega-corporations with way more money than sense.

Here we have Google, staking its claim to 101 new gTLDs – at a cost of over $18m (ker-ching!) including such core Googley ones as .love .boo and .gmbh.

Amazon would claim to own .news .wow and .you among a total of 76 ($14m – ker-ching!).

And who is this? Top Level Domains Holdings Ltd – a listed company focused on exploiting this space. 92 domains ($17m – ker-ching!). Have you ever heard of Donuts? They made 307 applications ($56m – ker-ching!) via a series of subsidiaries and have raised $100m to exploit this new market. They clearly see gold in them there domains. It’s a goldrush!

Who wins?

So how is this good?

Well, one good thing is that domains are finally now available in chinese and other non-roman alphabets. Definitely a good thing – the internet is global after all.

Other than that, it’s kind of hard to see much to be happy about. I’m not sure the average internet user will be rejoicing at the plethora of new sites and services on offer (not least because this will create new addresses for sites, not new sites), and as now will probably barely notice the domain having clicked through from a search engine.

Some claim that this is a huge opportunity with “limitless” opportunities but I can’t see how any of them are enabled by the new gTLDs (Canon, for example, could give all their customers a website just as easily on a canon.com domain if they really wanted to). Maybe a few new ideas will emerge, but it seems unlikely that this will herald a new age of wonderousness and expansion for the internet.

Let’s hope this fails

To me this is just the perpetuation of a scam. The domain name registration system went very badly wrong at an early stage, and it can be traced back pretty directly to the inception of ICANN which totally failed to bring any sensible oversight and allowed this mess to develop (but, hey, they got sent nearly a quarter of a billion dollars today, so they will doubtless be able to smile through the pain).

I only hope that this whole fandango is a disaster and most of the money spent will be lost. A massive oversupply doesn’t usually do much for markets which have thrived on (relative) scarcity, so perhaps the best we could have hoped for is what has happened – so many new TLDs that they all become worthless.

Sensible companies will now increasingly decide that rather than trying to protect their brands by registering in every TLD, they should just ignore most of them. Just like many of the existing 22 TLDs, if they’re not used they will just not be relevant. If they become the homes of cyber-squatters and scam artists then they will become a badge of caution and users will avoid them.

What on earth ICANN will do with a quarter of a billion dollars remains a  mystery. But I’m sure they’ll have fun doing it.

The best outcome, I’m afraid to say, is that most of the money spent today turns out to have been wasted, the companies who wasted it will collapse or lick their wounds and move on, and we’ll stop the absurdity of having a centrally sanctioned and organised scam at the heart of the internet’s infrastructure.

And I’m very glad I don’t manage domains any more.

(With apologies for drifting a bit off the subject of copyright)

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