Month: June 2008

My favourite billionaire sports-team-owning blogger, “Megaphone” Mark Cuban, had a blog post yesterday about how Hulu — the streaming video site from NBC — is “kicking YouTube’s ass,” a theory that has been getting some reaction from various places in the blogosphere today. The reason for the post would be fairly obvious to regular readers of Blog Maverick even if Mark didn’t point it out, but to give him credit, he has put it right there in the lede of his post:

“It is coming up on 2 years post my declaration that only a moron would buy Youtube and that Google was crazy for actually going through with it.”

In a nutshell, Mark argues that “the Youtube business model is broken, and there is no light at the end of the tunnel as they are currently constructed.” Why? Because they can’t sell ads, and never will be able to, and therefore YouTube “has become the poster child for the old saying ‘we are losing money on every sale, but we will make it up in volume’.” Meanwhile, he says, Hulu is selling pre-roll and post-roll and every-other-kind-of-roll ads on their clips at YouTube, which drive traffic to their site, on which they sell ads — and so on. RIP, YouTube.

I think Mark has a point as far as YouTube’s monetization goes — but it’s a very small point. Yes, YouTube may have difficulty selling as many pre-roll and post-roll and other kinds of ads as Hulu can, since Hulu has the kind of mainstream, TV-style content that advertisers love. At the same time, however, pre-roll and post-roll aren’t the only kinds of video monetization, especially when you’re Google. And YouTube looks to be branching out as well.

I also think that Ashkan Karbasfrooshan of WatchMojo has a point when he says that to some extent YouTube and Hulu are apples and oranges. In other words, they are kicking different asses, so to speak. People go to Hulu to watch episodes of House or The Sarah Connor Chronicles or whatever, and people go to YouTube to see the latest funny cat video or something equivalent — those are two very different needs, and both valuable. Terry Heaton makes a similiar point on his blog.

In most cases, I’m all for a dose of rationality and common sense amid the short-attention-span Drama 2.0 that makes up much of the blogosphere. That’s exactly what New York Times blogger Saul Hansell is selling in his latest post at the Bits blog, in which he argues that the Associated Press copyright kerfuffle is just a silly misunderstanding. In effect, Hansell argues that Mike Arrington and Jeff Jarvis should quit whining and work with the AP to figure out how much of their newswire copy bloggers can reference without getting a “cease and desist” letter (if you need help with the background, see this post and also this post).

“What the A.P. is offering has the potential to be a great deal more constructive than Mr. Arrington and Mr. Jarvis suggest.”

Does it really though? I don’t want to be accused of succumbing to Godwin’s Law, but I would argue that a dialogue with the AP has about as much chance of being “constructive” as Chamberlain’s discussions with Hitler over the fate of eastern Europe. Just as that dialogue resulted in the loss of much of Czechoslovakia, I think a discussion with AP about how much bloggers can quote and under what circumstances is a mistake — and as Mike Masnick of Techdirt notes in a comment on Saul’s post, the AP hasn’t exactly shown itself to be open to a discussion. It seems to want to dictate terms. Saul says in his post:

“More important, the A.P. could well offer bloggers a safe harbor to use its content under certain circumstances without asserting a claim that every use beyond that line is copyright infringement.”

But that’s kind of the point: the AP doesn’t have to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

As I’ve said before — both in my posts and in the back-and-forth I had with Cyndy Aleo-Carreira of Profy on her post — I have no issue with the AP sending C&D notices to sites that re-publish their content holus bolus, or fail to give attribution, or are in competition with the news service and therefore threaten their business model. But I don’t think The Drudge Retort falls into any of those categories, and I agree with Techmeme’s Gabe Rivera that AP’s attempt to extend its reach to that and other blogs or social media sites is a dangerous move.

Update:

Dan Lewis of Wikia and ArmchairGM has a guest post at Centernetworks in which he argues that AP’s case is better than some might allow, and David Ardia (director of Harvard’s Citizen Media project) has a counter-argument at MediaShift. Meanwhile, the Associated Press has a web form up where you can click to pay $12.50 for the right to quote five words from an AP story. Yes, that’s right — five words. I am not making this up.

Not content to just distribute DMCA “notice and takedown” letters to unsuspecting websites like The Drudge Retort — a community news blog that is about as far from a commercial media entity as you can get — for excerpting its news stories, Associated Press has decided to create new rules about how much of their content blogs and other websites can quote. No doubt the newswire thinks this is being helpful, but Mike Arrington has taken it as an all-out declaration of war, and he is taking no prisoners. No more linking to or referencing any more AP stories, says TechCrunch. They don’t exist, says Mike.

“The A.P. doesn’t get to make its own rules around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it’s clear that, like the RIAA and MPAA, they are trying to claw their way to a set of property rights that don’t exist today and that they are not legally entitled to.”

In the New York Times piece about this move, AP vice-president Jim Kennedy — the same one whose statement was pasted into the comment section of multiple blog posts on the Drudge Retort story, including mine — says the newswire has backed off its original approach after criticism, and admits that it was “heavy-handed.” The language he uses is one of reconciliation and compromise:

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

And yet, AP hasn’t retracted its notice to Drudge Retort or its demands that the site remove excerpts, which in some cases amount to as little as a few sentences. According to the NYT story, the news service “still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.” In other words, the Associated Press would rather that you don’t use any excerpts whatsoever from an AP story, but instead rewrite a brief summary. As Scott Rosenberg of Salon correctly notes, this is absurd — fair use principles should apply to short excerpts, especially if they link to the original source. Trying to ban any excerpting at all is ridiculous.

Kennedy tells the Times that the AP is “not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.” And yet, that is very clearly the road that the newswire is going down — and it is a fool’s game, as the record industry has discovered in spades. If nothing else, it will help to demonstrate just how irrelevant the AP is. It is trying to make its content more valuable, but instead it is making it less so.

Update:

The boycott is a lot wider than just Mike Arrington and TechCrunch — a grassroots anti-AP campaign has swung into action, and Richard Kastelein of Atlantic Free Press has set up a website called unassociatedpress.net with a petition people can sign, as well as a number of “boycott Associated Press” badges for websites and blogs. Jeff Jarvis says that AP has “declared war” on bloggers.

My friend Kara Swisher at All Things D seems convinced that Microsoft has shelved its offer for Yahoo for the last time, since a number of senior Microsoft executives “close to the dealmaking” told her they have walked away from the table for good, and have no interest in acquiring the troubled Internet giant — not even if Jerry Yang is ousted as CEO, or the stock drops below $20. I have no doubt that sources told Kara that, since her contacts are usually impeccable. But I think they (even this guy) are still bluffing, and are ready to pull the trigger on a Yahoo deal.

Why do I think that? Unlike Kara, I have no inside sources at Microsoft with knowledge of a deal. But I can’t help but think that if an acquisition of Yahoo made any sense whatsoever at $33 a share, how could it not make even more sense at $23 a share? (I’m not the only one who thinks so) Presumably Microsoft saw synergies between Yahoo’s search business and its own that made a takeover look worthwhile, or it wouldn’t have pressed so hard to get a deal done. So what has changed? Not much — except that Yahoo’s stock has tanked and the company needs Microsoft more than ever.

Yes, Yahoo has cozied up to Google and sold the soul of its search business. But the Google search deal isn’t exclusive, and there isn’t even a “kill fee” if Microsoft acquires Yahoo and then tells Google to take a hike. And I have to think that seeing Google get its hooks into Yahoo has to make Microsoft want the company even more.

In what I hope has (or will) become a tradition of providing more thoughtful topics to chew on over the weekend (if there aren’t any bitchmemes to kick around, that is), I wanted to point to a fascinating debate underway at the Cato Institute’s blog Cato Unbound. It’s about copyright — an issue that I think is at the heart of many disputes involving new media, with the recent Associated Press flap being just the latest example (for info on some others — including the recently proposed Canadian copyright law — you can check here).

The Cato Institute is a libertarian-oriented (or “classically liberal”) think tank, and it describes Cato Unbound as “a state-of-the-art virtual trading floor in the intellectual marketplace, specializing in the exchange of big ideas.” The first shot in the copyright debate was fired by Rasmus Fleischer, a Swedish historian and writer most notable for being a co-founder of the Piracy Bureau, an organization aimed at abolishing (or at least heavily modifying) copyright, and one that is loosely affiliated with The Pirate Bay. Among other things, The Pirate Bay maintains one of the largest indexes of copyright-infringing material in the world, and is currently the subject of a massive lawsuit by the record and movie industries. Fleischer begins with a question:

“How relevant is it to declare oneself to be “for” or “against” copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted.”

Fleischer goes on to talk about how “every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last” and says that copyright law in the 21st century “tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses” — something that Canada’s proposed legislation demonstrates in spades, as Michael Geist notes. Fleischer also quotes Kevin Kelly, saying: “When copies are superabundant, they become worthless, while things which can’t be copied become scarce and valuable. What counts in the end are ‘uncopyable values,’ qualities which are ‘better than free.'” Mike Masnick of Techdirt made similar comments during his recent mesh 2008 presentation about “the economics of abundance.”

Continue reading “Copyright: a debate at Cato Unbound”

Sometimes a news item comes out of nowhere, and it feels like a press release went through a time warp and just arrived from a decade ago. Rogers Cadenhead is a programmer and writer who set up a site called the Drudge Retort about 10 years ago, as an alternative to the right-wing Drudge Report. He says the Associated Press news agency has filed DMCA takedown requests for several items on the site, alleging that excerpts and links constitute an infringement of copyright and “a misappropriation of ‘hot news’ under New York State law.” This (as the philosopher Jeremy Bentham once put it) is nonsense on stilts.

The AP case is similar to a number of other cases the agency has launched over the past year or so, including one against the headline news service Moreover (which was started by Nick Denton of Gawker fame), and another against a service called All Headline News. But those cases involve companies whose sole business is distributing headline news to a variety of other sites — something the AP theoretically has an interest in curbing (or at least being compensated for).

The Drudge Retort, as far as I can tell, isn’t anything like that. Rogers Cadenhead doesn’t even put together the content on the site — it’s an aggregation of links and comments from a community of users. To me, that puts it even farther out of the range of the AP’s professional concerns, especially since the headlines and brief excerpts are linked back to the original source, just like Google News does. The bottom line is that the press agency’s case constitutes yet another in a series of creeping assaults on the idea of ‘fair use,’ as can be seen by the comments of the AP’s lawyer in a letter to Cadenhead:

Continue reading “Someone please buy AP a clue”

If you smell anything wafting from Yahoo’s headquarters in Sunnyvale, it could be the rising stench of desperation. Unable to conclude a deal with Microsoft — for a variety of reasons that range from bizarre to ridiculous — the faded Internet giant has been reduced to signing a deal with Google to take over some of the advertising on its Web properties. As someone mentioned in one of the comments I saw, this is like Ford signing a deal to have its cars built by Honda (or like this). It is, effectively, an admission of failure — a failure to monetize its own assets properly, and ultimately a failure to compete in search period.

Google’s blog post about the deal takes pains to point out that this “does not remove a competitor” from search, and “does not allow Google to raise prices for advertisers,” and so on — in a commentary that is so obviously designed to placate the U.S. government that it might as well start out with the words “Dear Anti-Trust Investigators” — but the fact is that Yahoo doing such a deal means its search will inevitably wither even faster than it already was. It would be almost cruelly ironic if Microsoft, which has been on the receiving end of so many anti-trust machinations in the past, were to use anti-competitive issues as a cudgel with which to beat Yahoo into accpepting a low-ball takeover.

For more details on the deal, you can see live notes from the conference call at Silicon Alley Insider and Erick Schonfeld over at TechCrunch has put together some as well. I know I should care, but I confess that I have virtually no interest in this deal whatsoever.

Update:

TechCrunch has the text of the agreement between Yahoo and Google, which was filed with the SEC. Interestingly enough, it describes a $250-million “kill fee” that has to be paid if the deal is severed due to a takeover of Yahoo — unless that takeover is an acquisition by Microsoft.

Six months after it was first scheduled to hit the legislature, the government’s proposed copyright law was tabled in the House this morning, giving critics a first look at the law that they have been rallying against for the better part of two years. Although Industry Minister Jim Prentice is trying to rally support for the bill by calling it a “made-in-Canada” solution, prominent opponents such as law professor Michael Geist have made it clear they believe most of the new law’s features have been dictated by outside interests — including the global record industry, U.S. movie studios and other foreign content industries — and have called it “a carbon copy of the DMCA.”

The truth is that the proposed legislation is somewhere in between — in good and bad ways. There are areas in which the Canadian law differs dramatically from the U.S. DMCA — most notably, the use of a so-called “notice and notice” approach when it comes to the liability of Internet service providers for copyright-infringing content, as opposed to the U.S. “notice and takedown” approach. The U.S. law has been criticized by many for effectively forcing services such as YouTube to remove content even when it’s not clear whether it actually infringes copyright, such as when it could fall under the “fair use” exception in the law (Canada has a similar, but more restrictive, concept called “fair dealing”).

Another element of the proposed Canadian law is that the personal (or “non-commercial”) liability for infringement has been reduced from $20,000 per infringement to just $500 — and that’s for each case brought by a copyright holder, even if it involves multiple offences; the existing legislation provides for damages of $20,000 per file. It’s important to note, however, that the reduction doesn’t apply if the person doing the infringing has cracked, broken or otherwise gotten around any digital-rights management controls on the content. Those cases would still be open to the $20,000 per infringement damages that are in the current law.

Continue reading “Canadian copyright bill: Good and bad”

Some very perceptive thoughts from Upendra Shardanand — co-founder and CEO of media site Daylife.com — in this post on his personal blog about “the new architecture of news.” It’s been out there for a little while, but I only just got around to reading it now (hat tip to my colleague Greg MacGregor for the link). As he describes it, the media industry as we know it is evolving and being disrupted in ways that we’re only just beginning to contemplate or understand:

“The reality is that some of the news organizations we love are going to go away. Others will shrink. Still others will flourish, and new ones will be born. And some online services that you would never expect to be a news outlet will add to their offering news from other content creators.”

I think Upendra is right when he says that the actual consumption of news (broadly defined, of course) has been increasing, but the ways in which people consume that news have been splintered and atomized by the arrival of the Web. All the Web has really done, he says, is to expose some of the inefficiency and low-quality content that was easier to disguise (or get away with) when publishers and other content creators controlled the means of distribution.

“Controlling offline distribution meant controlling the physical delivery of the content. Online, it’s all about offering superior navigation to the content.”

That’s an important point: It’s all about navigation — helping your readers find the content that they want. And that content doesn’t always have to be original content generated by the staff of a publisher, Upendra says (and I agree). It could be from anywhere — and by linking to it, you help to create a bond of trust with your audience, as they come to believe that you will have the best content even if it’s not your own. That has value. At the same time, publishers have to also focus on what they do best, and turn that to their advantage.

“More than ever, publishers need something unique – in voice, brand, content – around which to build. If people sometimes feel that the traditional news organizations all feel a bit same-same, a bit whitewashed and stale, well… maybe they sometimes are. Increased competition means even more need for differentiation.”

Well said. I encourage you to read the whole thing.

I noticed a post by Mashable writer Mark “Rizzn” Hopkins on his personal blog about Omnidrive — the troubled “cloud storage” company founded and run by Aussie entrepeneur Nik Cubrilovic — that seemed to have been jump-started by a post at Duncan Riley’s Inquisitr, after someone at TechCrunch put Omnidrive into the CrunchBase deadpool. After some back and forth between Duncan and Nik in the comments at the Inquisitr post, the deadpool reference was removed; Nik, who has been writing for TechCrunch for awhile now (and who counts Mike Arrington as an investor in Omnidrive) said it was a mistake by an intern.

For anyone who is just joining this story, Omnidrive was a highly touted “Internet hard drive” service that launched in 2007, but late last year it started having some serious problems — users reported that they couldn’t access their files on the service for days at a time, that support requests went unanswered, and so on. In December, a post at Read/Write Web said that the chief technology officer had left the company; in a comment on the post, Nik said that everything was fine, but a subsequent comment from the CTO said that the company had run out of money and laid its entire staff.

From there, the story quickly descended into soap-opera territory: the company’s website, blog and user-support forums disappeared from the Web, then came back, then disappeared again. Finally, Omnidrive.com redirected to a static Network Solutions landing page and it appeared the company had in fact entered the deadpool. To add insult to injury, a prominent investor in the company said that he had been promised his money back, but that Nik had reneged on the deal. The Omnidrive founder then responded to an email from fellow Aussie Richard MacManus at Read/Write Web and said the company was still in good health and was over its problems, etc.

For what it’s worth, Omnidrive.com is back up and appears to be working — although when I tried to log in I got an error that said the site’s security certificate had expired, and I got a similar error when I tried to reach the support forums. I can’t vouch for the actual service itself because I don’t use it (I use Amazon’s S3). A couple of weeks ago, after I saw Nik’s byline start to show up on stories at TechCrunch, I wrote him and asked if he had any comment on the various allegations and the state of things at the company, and here is what he said:

“Hi Mathew, we are still working on it, back to a small team of us – we recently rolled out a new backend and we will be rolling new frontend stuff out over the next two months (starting this week). We shifted direction based on what we learnt over the past 2 years and we are focusing on the API and developer tools (authentication, storage and contacts).”

It sounds as though Nik is trying to incorporate some of the lessons he has learned over the past year and a half and turn Omnidrive into a functioning company again — but there are still some pretty big skeletons wandering around, to judge by posts like this one. For some extra insight into Nik’s viewpoint on the whole mess, and that of some of his critics, pay particular attention to the comments.