Google Talks A Good Game On Copyright

When the Computer and Communications Industry Association (CCIA) drops its missive off at FTC headquarters today, some familiar names will be listed as supporting its listed complaints.

Google and Microsoft rank among the companies backing the complaint, the Wall Street Journal said in a report (free access, because WSJ.com almost always makes a Google-referencing article available outside its subscription firewall):

The group wants the FTC to investigate and order copyright holders to stop wording warnings in what it sees as a misrepresentative way.

“We look forward to receiving their complaint and reviewing it,” said an FTC spokeswoman.

Many warnings “materially misrepresent U.S. copyright law, particularly the fundamental built-in First Amendment accommodations which serve to safeguard the public interest,” the complaint alleges. CCIA President Ed Black said the warnings create a “chilling effect,” dissuading consumers from using portions of the content in ways that are lawful.

The report cited the familiar refrain heard during broadcasts of baseball or football games, where people are told they cannot disseminate accounts or descriptions without written consent. Movies, DVDs, and books all contain similar verbiage.

WebProNews publisher Rich Ord said this was hardly a new issue, based on his similar experience with linking to content over a decade ago:

When I launched NewsLinx in 1996 I was contacted by virtually every major news source claiming that I was infringing on their copyright by linking to their articles … Large old media publishers tend to ignore fair use when claiming copyright infringement … I agree with Google. However, with NewsLinx once I offered to stop linking to their articles, every publisher from the LA Times to the Wall Street Journal relented and gave me permission to link… as if I needed it!

It has been suggested already that the CCIA complaint could be little more than ceremonial chest-puffery. A copyright attorney cited in a CNet report said making copies of copyrighted content for someone else “has never been held to be legal.”

If that is the case, this could be another example of Google talking a good game without putting anything on the floor to back it up. Google already gave itself an out with the 700MHz wireless spectrum auction, and the conditions are in place for them to decline to participate.

As author J.D. Lasica noted in his book, ‘Darknet’, fair use has shrunk dramatically in the print world. Excerpt lengths have been challenged, and lawyers fear to tread too firmly upon the work of others. It’s a radical departure from times gone by.

FTC complaints aren’t the same as groundbreaking court battles. When Google or Microsoft or anyone else wants to really fight it out and secure defined fair use principles, not just concepts, that will be the moment worth watching.

Google, DoubleClick Cast As Net Neutrality Fight

Cleland’s assessment of the merger, freely available from his Googleopoly website, contends the Federal Trade Commission likely has enough reasons to block Google’s DoubleClick purchase.

Citing his experience criticizing a proposed Worldcom/Sprint merger, Cleland said he expected pushback from those in favor of a deal that in his analysis won’t pass an evidence-driven antitrust test.

To illustrate, Cleland showed what a potential Google/DoubleClick rival would need to own in order to compete effectively:

To equal Google-DoubleClick’s level of market concentration in the intermediary online advertising market, one single financial services company would have to own:

•  The top 15 Wall Street banks/asset managers;

•  ~60% of the hedge fund and private equity industries;

•  The New York and London Stock Exchanges;

•  The two leading providers of financial analytical tools: Bloomberg and Factset;

•  Two of the three national providers of credit profiles: Experian and Equifax; and

•  ~60% of the Federal Reserve’s and U.S. Census Bureau’s raw market and consumer data.

The overall impact of the deal lessens competition in the online advertising market, Cleland said in the white paper. His position found little favor with the Computer and Communications Industry Association, whose CEO, Ed Black, penned a press release slamming the Googleopoly report.

Black and CCIA painted Cleland’s analysis as coming from "a coalition of incumbent telecom and cable companies that want to smear Google and its vigorous support for neutral broadband access."

CCIA’s comparison of the Google review by the FTC to past antitrust cases involving IBM, AT&T, and Microsoft differs from the DoubleClick deal, Cleland said in response. "The flaw in their logic is that IBM, AT&T and Microsoft were not merger review cases like Google-DoubleClick," he said.

All three of those companies were attacked for their established monopolies, as those who have followed the tech industry will recall. Google isn’t being hauled before the FTC on those grounds, but the potential for the DoubleClick merger to put the search company into a monopoly position.

Google is on the path to becoming an "enduring monopoly" today, Cleland said in his report. No startup can possibly match the resources required to compete. Google’s closest competitors, Yahoo and Microsoft, can’t offer the same return to a third-party website when it comes to making a search and advertising deal:

Why this matters is that Google’s economics (and market power) directly derive from its overwhelming relative audience size. When Google/Yahoo/Microsoft approach a third party content provider to be the wholesale provider of search and ad-serving services for a high traffic website, they bid on how much revenue they will provide to the third party.

Because Google has 2-3 times the size audience as Yahoo it can afford to bid a dollar amount 2-3 times more than Yahoo can.

Because Google has 5-6 times the size audience as Microsoft, it can afford to bid 5-6 times higher than Microsoft to win that third-party search/ad-serving business.

It’s going to be easy for net neutrality proponents to dismiss Cleland’s message because he is the messenger. But the report merits reading by anyone with an interest in the online advertising market.

His assessment of Yahoo’s failures to make inroads against Google in search – Yahoo is a retailer of content, Google is a wholesaler of technology – said Yahoo’s Panama search ad system will continue to disappoint the marketplace.

Evidence of that came from Yahoo, where profits dropped despite revenue rising. In Cleland’s analysis, Panama’s struggles will be "an excellent case study for antitrust authorities" in weighing the Google/DoubleClick merger.

Indirectly, Yahoo could have a bigger impact on Google in antitrust than it does in search advertising, simply by operating normally. Antitrust considerations just aren’t a net neutrality fight.