Disney, WB Claim Ad Firm Working With Pirate Sites Is Guilty Of Contributory Infringement

from the a-new-mole-to-wac dept

Apparently the folks in Hollywood are trying a slightly different tactic than directly wac'ing file sharing site/service moles, and are trying to go after other third parties. Disney and Warner Bros. have sued an ad firm called Triton Media for providing advertising services to a series of sites that the studios feel facilitate copyright infringement. Note the degrees of separation here. The sites in question do not host or transmit any copyrighted material. As the legal complaint notes:

Specifically, the Websites, have posted, organized, searched for, identified, collected and indexed links to infringing material that is available on third-party websites, otherwise provided access to infringing material, and/or hosted infringing material.

So, the websites themselves are already pretty far removed from the actual infringement. The files are hosted on other sites. They're shared by other people. These sites just allow users to post links. And... then on top of that the studios aren't even suing these sites, which are a few steps away from the actual infringement: they're suing this ad firm, which is another degree of separation away. Wow.

The complaint itself is pretty stunning too when you realize that it never actually shows what Triton did that would qualify as contributory infringement. It just focuses on these nine websites instead. Perhaps there's more to this lawsuit than is in the filing, but it seems like a huge reach. If advertising firms are liable for infringement that happens on a totally different website than the one they're working with because someone clicked a link... that seems like it could create massive liability for anyone offering services on any website.

Filed Under: advertising, contributory infringement, copyright
Companies: disney, triton media, warner bros.

Compare And Contrast Google To Microsoft On The Privacy vs. Ads Question

from the which-one-is-more-trustworthy? dept

Last week, we wrote about a WSJ article that discussed some of the tensions inside Microsoft over whether to side with advertisers or consumers when it came to privacy features in Internet Explorer. This week, the WSJ appears to have a similar article, about a similar debate within Google. I actually expected the story to be quite similar to the Microsoft story, but, honestly, I was pretty surprised at the lack of any "there" there in this latest article. It appears to take a single document by a mid-level staffer, who tossed out a bunch of random ideas for brainstorming purposes -- many of which, it appears, everyone at the company knew were non-starters -- to suggest that the company was "agonizing" over competing privacy and advertiser interests. These sorts of documents get created all the time, and don't mean anything really.

There are some interesting nuggets in the piece, which suggest that the real struggle over privacy issues and Google will come down the road after Sergey and Larry leave the company. As it stands, those two still appear to have pretty strong views on protecting users' privacy, correctly realizing that not doing so will actually do more long term harm to both consumers and Google itself. But, not everyone is good at recognizing the long term impact of profitable, but short-sighted, short term decisions.

If anything, the article does serve as a reasonable reminder that for most of us, Google really does have access to a tremendous amount of potentially sensitive material, and basically everyone has put their trust in the fact that the company won't abuse this access to data. To date, the company has actually been quite good about all of this, but there's certainly no guarantee that will always be the case. If anything, the increased scrutiny on Google should have the company looking to put in place a framework now to "forward protect" people's data, in case future Google execs change tactics. I think that could go a long way towards retaining people's trust.

Filed Under: advertising, privacy
Companies: google, microsoft

Ad Scammers Getting Harder To Spot

from the reasons-to-use-adblock dept

When we've discussed adblockers in the past, one important point that many people have raised is the growing likelihood of scammers "buying" ads as a method of distributing malware through popular sites. Apparently, that business of "malvertising" is getting more and more popular... and more and more sophisticated. Joshin4colours points us to a story about a super sophisticated "malvertiser" who went to great lengths to appear legit. In another discussion about that case, it's suggested that somewhere around 50% of "self-service" advertising setups may be part of some kind of scam. I'm not sure I quite believe that number, but if the number is even half of that, it does raise questions about how online ad buying and ad placement works, and how it will work in the future. Perhaps this will finally drive companies who insist on banner ads, rather than more effective forms of advertising/marketing, to rethink their position.

Filed Under: advertising, malvertising, malware, scams

Is Google Required To Carry Anyone's Advertising? French Regulators Seem To Think So

from the huh? dept

We've seen a series of similar claims from companies related to the entirely bogus concept of "search neutrality," which seems to suggest that search engines have some sort of moral requirement to include links or ads from certain companies even if the search engines don't believe those links or ads add any value to its users. And, now, it appears, French regulators are agreeing with that nonsensical result. Apparently, a French GPS company named Navx complained to the government that Google had stopped including its ads, and French regulators have sided with Navx over Google.

The regulators seem to think that Google is somehow required to help Navx's business:

"Google's practices have suddenly and significantly affected Navx's income, but also and essentially its growth potential," it said as it granted Navx's request for interim measures.

Well, gee, Google doesn't display Techdirt as the top result for stuff we write about. That seems to significantly affect our income as well as our growth potential. But you don't see us running to the government to force Google to do so.

The key part of the complaint appears to be that Google's algorithm and policies are not publicly available, but again it's not clear why it needs to be. I actually do agree that Google's policies probably should be a lot more open and transparent, but that doesn't mean the government should force them to be. Instead, if anything, this actually seems like a potential opening for a competitor to come in and hit Google. I've always felt that certain aspects of Google's closed nature are an achilles heel for the company that no one has yet exploited.

Just because Google made a business decision to keep that information closed, and one company relied too much on Google for its business model, doesn't mean that a government should step in and force Google to change how it does business.

Filed Under: advertising, france, neutrality
Companies: google

A Recommendation Is Not The Same As Corruption

from the a-mind-is-a-terrible-thing-to-waste dept

I recently wrote about what a joke the concept of "search neutrality" is, because, by their very nature, search results are supposed to be a ranking of what the site thinks the user wants most. It appears that the folks who are paid handsomely to push this "search neutrality" meme aren't too happy that someone has called them out for making something out of nothing. Scott Cleland, who is famously paid to blog anything that will make Google look bad, took issue with my statements, and sought to debunk what I had to say. To those pushing search "search neutrality," I would suggest coming up with better arguments (or finding someone who can actually argue logically), because Cleland's points don't cut it. Basically, he pretended I said something I didn't say and then ran with it.

Specifically, he pretends that when I say that search is inherently non-neutral, I mean that it's okay for Google to give higher ranking results to advertisers. I neither said nor implied any such thing. What I said (I thought clearly, but it's easier for Cleland to knock over a strawman) was that there's no such thing as "neutrality" in search, because any ranking is biased by what the search engine thinks is best. A "neutral" search engine doesn't exist, because it could never recommend any links. A recommendation is bias, but that's not the same as corruption or undue influence. It just means bias towards recommending what the search engine thinks is best.

However, Cleland jumps off on that to point out that even Google has said that paid search can impact quality. But Cleland is (in his usual manner) taking things totally out of context. The quotes he's discussing were about sites that mix paid search in their organic listings. To date, no one has shown convincing proof that Google has actually done this. If there were proof, then it would suggest that Google was doing something misleading, which would be an issue for the FTC to look at (as it has with other paid search listings in the past). However, that's hardly a call for "search neutrality." Mixing ads into the organic listings is one thing, but that's not what we were discussing. It's just the strawman Cleland tossed out there since he can't let that "search neutrality" thing die.

Second, he quotes Google saying that it doesn't "manipulate rankings to put partners higher," as proof that I'm wrong that the "whole point of search is to be biased." Again, he is arguing something I did not say. I said (again, clearly, though Cleland ignores it) that the bias is to put the results that it feels make the most sense out there. Saying that "the whole point of search is biased" does not mean "it's okay to mix paid search in organic results without telling people" as Cleland seems to think. It's almost as if Cleland doesn't even understand how search works.

Finally, Cleland links to a series of recent antitrust lawsuits against Google, which all seem to be based on the same ridiculous misinterpretations of how search engines work, and claims these are "documented charges of fraud, mis-representation, anti-competitive behavior." Except, they are no such thing. They are claims from a few small companies, bankrolled by Google's competitors, to misrepresent what Google is doing -- sort of like Cleland himself. None of those lawsuits have been decided, but I would be amazed if any of them came out with Google on the losing side. And, finally, on that, I never said that those lawsuits shouldn't move forward (as Cleland implies). I just pointed out that the claim of "search neutrality" being an issue is bogus. But none of these lawsuits are actually about "search neutrality." They're about claims that Google somehow took anti-competitive actions against these sites.

Most importantly, however, the reason people ask for "net neutrality" is because when you have an ISP, you have to go through that ISP to get anywhere. So if it's not "neutral" you can get locked into an experience you don't want. That's not the case with search. If you don't like your search experience, and if you find that the search engine of your choice has polluted its links with paid partners, then you can immediately go elsewhere. That's the key point, but it's never one that Cleland will address. Because he can't.

Filed Under: advertising, bias, scott cleland, search, search neutrality

Entertainment Industry Gets Politicians To Advertise File Sharing Sites

from the what-are-they-thinking? dept

Just a few weeks ago, the USTR put out its infamous Special 301 report that tries to shame countries that don't respect US intellectual property laws, but is put together using the rather scientific method of "what countries are the entertainment and pharmaceutical industries complaining about now?" to generate the list. Around the world -- and even in the US gov't -- the list is mostly seen as a joke. No one takes it seriously.

But, apparently one ridiculous list isn't enough. The RIAA and MPAA have convinced a group of US elected officials, who have dubbed themselves the "International Anti-Piracy Caucus" to put out a list of file sharing websites that it hates... and with it, an attempt to shame the companies where those websites are hosted. The timing on this is amusing, because, of course, just last week, you would have needed to put the US on the list, as LimeWire would have likely been seen as just as widely used for unauthorized file sharing as some of those sites.

But the larger point is that this list is effectively advertising these five sites as the best place to go to get unauthorized content:

China's Baidu, Canada's IsoHunt, Ukraine's Mp3fiesta, Germany's RapidShare, Luxembourg's RMX4U.com, and Sweden's The Pirate Bay.

You would think that, by now, the RIAA and MPAA would have recognized that every single time they've targeted a particular service for file sharing, the end result is to get that site significantly more publicity, so that its userbase increases rapidly. It happened when they sued Napster. It happened when they sued Grokster. It happened when they got the police to raid The Pirate Bay. It happened when they filed the lawsuit against IsoHunt. Putting out this list basically just pointed a bunch of people at these particular services as a good place to go to get access to content. Nice work by the caucus, who is made up of Reps. Adam Schiff and Bob Goodlatte along with Sens. Sheldon Whitehouse and Orrin Hatch.

And, of course, the RIAA put out a statement supporting this free advertising for those sites. Honestly, people keep telling me that the RIAA really knows what it's doing, but how can they possibly think that this is a good idea?

As a parallel, reader Hephaestus points out this historical bit:

"From 1559 to 1966 the catholic church had a list of prohibited books aptly named the Index Librorum Prohibitorum. One historical note about this list is that a very large number of the books on this list had an increase in sales and reading when they were placed on the list. The International Anti-Piracy Caucus seems to have not learned the simple historical lesson, To list or expose inappropriate subject matter shines a light on it and exposes it to a larger audience. This will undoubtedly lead to more people visiting this "list of notorious sites" quite the opposite of what they seem to be aiming for.

Nice work, RIAA and MPAA. You just boosted traffic to those sites.

Filed Under: advertising, anti-piracy caucus, file sharing
Companies: mpaa, riaa

FTC Gives Ann Taylor A Pass In First 'Blog Disclosure' Investigation

from the disclose-everything dept

We expressed some serious concerns with the somewhat ambiguous FTC disclosure rules directed at blogs and new media that went into effect last year, and we've been waiting to see how the FTC enforces those rules. We found it odd that the FTC apparently felt that celebrities could be held to different standards. There have been some questions about different activities -- for example, Viacom's actions in trying to make authorized uploads look as if they were bootlegs certainly appears to run afoul of the rules. And, more recently, there were some concerns over the NY Times' lack of disclosure concerning its relationship with Apple when reporting on the iPad.

However, back in February, some were wondering if retailer Ann Taylor's offer of gift cards to bloggers who covered their new line of clothing violated the rules. Apparently, the FTC did take notice, and Michael Scott points us to the news that last month, the FTC decided to give Ann Taylor a one-time pass, though it did express some concerns about the program: What strikes me as interesting here is that the FTC investigation focuses on the advertiser's actions, rather than the bloggers'. That is, most of the concerns about the program were about whether the FTC would take action against bloggers. But, here, it was focused on the advertiser and its actions. That does make more sense, but does leave open a questionable loophole: if an advertiser tells a blogger to disclose some information and then the blogger does not do so... is the advertiser still liable? In this case, the FTC even mentions that one of the reasons it's not taking action is because many (though not all) of the bloggers, who wrote about the event, disclosed the gift cards. But if they had not -- even though Ann Taylor had told them to -- then is Ann Taylor to blame?

Filed Under: advertising, blogs, disclosure, ftc
Companies: ann taylor, ftc

Forbes Recognizes That There Are Better Business Models Than Pure Advertising

from the about-time dept

We've been making this point for years (and living it with our Insight Community offering), but it appears that other media providers are finally recognizing that there really are other business models than "advertising" or "subscriptions." There's been this theory out there for the longest time that those were the only possible ways to make money in the publication space. Thankfully, it looks like more and more publications are recognizing there are other options as well. A few folks sent over news that Forbes appears to be making the same point, noting that advertising is a commodity, but services are not. Thus, they're launching a "reputation tracker" for companies.

While Jay Rosen was kind enough to compare Forbes' new offering to our Insight Community, I'm not sure it's quite there yet. It looks like Forbes' offering is more just about getting feedback from people, rather than really leveraging the strengths of the community. Frankly, it still amazes me that more media publications don't do more for their community (and in some cases, actively fight their own community). The whole reason media works as a business is because it brings together a community, and then does something with that community. The traditional model was to just sell their eyeballs -- which only gets you so far. I think models that focus on actually using the intelligence in that community to do something useful seems a lot more powerful. Hopefully, Forbes' step in that direction is an indicator that more media publications are realizing there's more to a business model than advertising and subscriptions.

Filed Under: advertising, business models, journalism, services, subscriptions
Companies: forbes

Video Professor Loses Lawsuit Against Amazon Over Keyword Advertising

from the contracts-and-trademarks dept

The Video Professor is the company that is notoriously litigious over critics of its marketing practices -- and just a few months ago even sent us a threatening email after we wrote a post about some of the company's actions. After a quick discussion between lawyers, the company agreed that it would not take action against us. But its lawyers have still been busy elsewhere -- though, the company also seems to lose a lot of lawsuits. This particular one involved Amazon.com, and The Video Professor's annoyance that Amazon had bid on the keywords "video professor" on various ad platforms. Of course, given that Amazon might be selling either products from The Video Professor or some of its competitors, that's a perfectly reasonable (and lawful) use of keyword advertising. The trademark does not give the trademark holder complete control over the mark.

Either way, it looks like the Video Professor has lost again on this one, even if the trademark analysis didn't even come into play. It turns out that way back whenever the company had signed an earlier deal with Amazon to be a vendor on Amazon, it had also signed a vendor agreement that included a "perpetual trademark license." Summary judgment, case closed.

Filed Under: advertising, keyword, lawsuit
Companies: amazon, video professor

How To Get People To Watch TV Ads: Don't Stop The Program While You Show Them

from the good-luck-with-that dept

TV broadcasters have long struggled with how to deal with DVRs and how they allow users to skip over commercials. Perhaps the favored approach has been to come up with technological responses to try and prevent people from fast-forwarding; fewer companies have figured out that advertising is content, and needs to be treated as such. Viewers need to be given a reason to watch ads, whether it's simply entertainment or because the content offers some other value. Another idea that's being tested: not stopping the show during ad breaks. On one show on CNN, when the ads start, the studio cameras keep rolling, showing "behind-the-scenes" footage in a small box in the corner. The belief is that if there's still some bit of "program content" going, it will be enough to keep people from flipping channels or skipping ahead, even if it is just paper shuffling and makeup being touched up. It's an interesting proposition, but once viewers realize they're not missing anything of value, won't they switch away or fast-forward? And if the program content actually is valuable, won't people just not pay attention to the ads? The problem here seems to be that this is just an effort to recreate a captive audience. But without offering anything of value to the viewer -- whether it's the ads themselves or this "program content" -- they're not going to stick around and suck up the ads.

Filed Under: advertising, dvrs, tv
Companies: cnn