Study Of Spain's 'Google Tax' On News Shows How Much Damage It Has Done

from the ancillary-copyright-is-a-bad-idea dept

As you may recall, governments across Europe, generally at the behest of traditional newspaper publishers, have been pushing for what they call an “ancillary copyright,” but which is much better referred to as a “snippet tax” or a “link tax.” Or, if people are being honest: a Google News tax. The idea is that any aggregator site that is linking out to other sources with little snippets telling people what’s at the link, has to pay the original publication to link to them. If you think this goes against the entire concept of the internet, you’re not wrong. Belgium was the first country to try it, and Google responded by removing complaining publications from Google News. In response, the publications then complained that Google News was being mean to them, even though they were the ones complaining. In Germany, a similar thing happened, whereby Google left the complaining publications in Google News, but without snippets since that was a key aspect of the law. Again, the publishers screamed “unfair” even though they were the ones who had pushed for the law in the first place.

When it came time for Spain to try to appease its misguided and angry publishers, the government sought to avoid the tactics that Google had done in the past and thus made it mandatory to pay, saying that sites themselves couldn’t even opt-out of getting payments, even if they didn’t want them. In response to this, Google broke out the somewhat surprising “nuclear option” and shut down Google News in Spain entirely. It seemed quite obvious that this move would create huge problems for media properties that wanted to be open and wanted people to link to them.

After the law went into effect, the Spanish Association of Publishers of Periodical Publications (AEEPP) commissioned an economic study about the impact of the new Spanish ancillary copyright law — and found (not surprisingly) that the legal change (and the shuttering of Google News and other aggregators) was absolutely harmful to the Spanish news media and innovation in general. It also found strong evidence that, contrary to what those fighting against Google News have claimed, aggregators expand the market for the original sources, rather than shrink it by acting as a substitute. The latter is based on a “study of studies” basically, looking at all of the academic literature in terms of the impact of aggregators — all of which shows that it increases the overall size of the market, rather than shrinks it.

However, the really telling part of the report is that this law that was passed in the name of helping news publications, ended up doing tremendous harm to many online publications — especially smaller sites that frequently (and happily) relied on Google News and other aggregators for a significant amount of traffic. The report points out that it wasn’t just Google News that shut down because of this law: a whole bunch of local Spanish aggregators shut down themselves, switched business models entirely, or similarly left the Spanish market entirely. The report notes that sites like Planeta Ludico, NiagaRank, InfoAliment and Multifriki shut down entirely, as they were scared of the economic and legal liability from the new law. The report notes the case of NiagaRank is particularly troubling as it has a wider impact on innovation in Spain:

NiagaRank: ignoring the extent, quantity and methods followed to determine whether they should pay the fee, they preferred to close down. This case is remarkable because NiagaRank was not a ?traditional? aggregator, but it analysed social networks to draw up lists with the most relevant news (?active listening?, as they used to call it). However, it is an example of the legal uncertainty that the lack of definition of key aspects of the act has caused.

[….]

For example, and as already pointed out, currently there are several services focused on the aggregation of content for mobile phones, such as the mobile applications Zite and Flipboard. The amendment to the act will discourage the introduction of this sort of services in Spain, as well as the potential development of new models. A clear example of this situation is the portal NiagaRank, an innovative aggregator based on the analysis of the content published on social networks (similar to News360 or Prismatic) which, as mentioned before, also closed down as a direct result of the law amendment.

And all of this has had a tremendous negative impact on the press, rather than a positive one as those behind the law insisted.

The negative impact on the online press sector is also very clear, since a very important channel to attract readers disappears, resulting in lower revenues from advertising. In addition, the new fee is also a barrier to the expansion of small publications with little-known brands, and an entry barrier for new competitors, since they will be unable to count on these platforms to increase their readers? base.

The evidence available so far shows that the impact on traffic has been negative and that less consolidated publishing titles, such as digital native newspapers, have been the worst affected. This is not only because the total number of publication readers has been reduced but, in the case of online readers that would be attracted anyway (that is, who would visit the publications web sites in some other way), they will surely end up visiting known publications with established brands, to the detriment of small and new publications, in line with the evidence in the literature analysed above

Of course, for the major newspaper publishers, maybe that’s what they really wanted all along: less competition. But it’s difficult to see how that’s a legitimate public policy strategy.

And, not surprisingly, looking at multiple different ways of measuring these things, traffic to all Spanish news sites dropped after the law went into effect:

A simple traffic analysis of Spanish digital newspapers in the first three months of 2015 based on data from ComScore also suggests results in line with the aforementioned. The impact of the closing down of Google News and some other aggregators has generated a decline of visitors to the 84 major Spanish online newspapers…

The report notes that this is even more stunning given that overall internet traffic and usage in Spain has been increasing, so even the percentage drop in traffic undercounts the real impact, as it likely would have been growing.

The data, not surprisingly, shows that the impact on smaller news publishers has been the worst — again consistent with the idea that all this law really does is lock out competition for the larger players:

A more detailed analysis, breaking down traffic depending on the newspaper size, also confirms that the effect has been uneven. Thus, for the sample of online newspapers in Spain, it appears that smaller newspapers have been the worst affected ones.

All of this should really raise serious questions about just what is the intent of the Spanish government in passing this law. It does not appear to serve any legitimate public policy. At best, it appears to have damaged small news publications, making it more difficult for them to compete against larger publications, though it has also served to damage those larger publications’ traffic as well.

Filed Under: aggregation, ancillary copyright, copyright, google tax, innovation, snippet tax, snippets, spain
Companies: google, niagarank

Smoking Gun: MPAA Emails Reveal Plan To Run Anti-Google Smear Campaign Via Today Show And WSJ

from the editorial-independence? dept

If you talk to the reporters who work for various big media companies, they insist that they have true editorial independence from the business side of their companies. They insist that the news coverage isn’t designed to reflect the business interests of their owners. Of course, most people have always suspected this was bullshit — and you could see evidence of this in things like the fact that the big TV networks refused to cover the SOPA protests. But — until now — there’s never necessarily been a smoking gun with evidence of how such business interests influences the editorial side.

Earlier this month, we noted that the Hollywood studios were all resisting subpoenas from Google concerning their super cozy relationship with Mississippi Attorney General Jim Hood, whose highly questionable “investigation” of Google appeared to actually be run by the MPAA and the studios themselves. The entire “investigation” seemed to clearly be an attempt to mislead the public into believing that it was somehow illegal for Google’s search engine to find stuff that people didn’t like online. A court has already ruled that Hood pretty clearly acted in bad faith to deprive Google of its First Amendment rights. As the case has continued, Google has sought much more detail on just how much of the investigation was run by the MPAA and the studios — and Hollywood has vigorously resisted, claiming that they really had nothing to do with all of this, which was a laughable assertion.

However, in a filing on Thursday, Google revealed one of the few emails that they have been able to get access to so far, and it’s stunning. It’s an email between the MPAA and two of Jim Hood’s top lawyers in the Mississippi AG’s office, discussing the big plan to “hurt” Google. Beyond influencing other Attorneys General (using misleading fake “setups” of searches for “bad” material) and paying for fake anti-Google research, the lawyers from Hood’s office flat out admit that they’re expecting the MPAA and the major studios to have its media arms run a coordinated propaganda campaign of bogus anti-Google stories:

Media: We want to make sure that the media is at the NAAG meeting. We propose working with MPAA (Vans), Comcast, and NewsCorp (Bill Guidera) to see about working with a PR firm to create an attack on Google (and others who are resisting AG efforts to address online piracy). This PR firm can be funded through a nonprofit dedicated to IP issues. The “live buys” should be available for the media to see, followed by a segment the next day on the Today Show (David green can help with this). After the Today Show segment, you want to have a large investor of Google (George can help us determine that) come forward and say that Google needs to change its behavior/demand reform. Next, you want NewsCorp to develop and place an editorial in the WSJ emphasizing that Google’s stock will lose value in the face of a sustained attack by AGs and noting some of the possible causes of action we have developed.

In other words, Jim Hood and the MPAA were out and out planning a coordinated media attack on Google using the editorial properties that supposedly claim to have editorial independence from the business side. Notice that with the WSJ piece, they flat out admit that the editorial will be based on the ideas that “we” have developed. If you work for the WSJ, your editorial independence just got shot down. Remember when CBS stepped in and interfered editorially with CNET for giving an award to Dish at the same time that CBS was in a legal fight over that same device? That resulted in reporters quitting.

This is worse.

This is an out and out case where the MPAA is admitting to a plan whereby it will use mainstream media properties to run bogus and misleading stories to “attack” Google, to further the MPAA’s (believed, but misleadingly so) business interests. Is this really how the Today Show and the WSJ pick their editorial topics?

The “plan” goes even further after that, getting the MPAA to find (and almost certainly pay for) a lawyer to work with the “shareholder” previously identified to file legal filings against Google.

Following the media blitz, you want Bill Guidera and Rick Smotkin to work with the PR firm to identify a lawyer specializing in SEC matters to work with a stockholder. This lawyer should be able to the [sic] identify the appropriate regulatory filing to be made against Google.

As Google notes in its legal filing about this email, the “plan” states that if this effort fails, then the next step will be to file the subpoena (technically a CID or “civil investigatory demand”) on Google, written by the MPAA but signed by Hood. As Google points out, this makes it pretty clear (1) that the MPAA, studios and Hood were working hand in hand in all of this and (2) that the subpoena had no legitimate purpose behind it, but rather was the final step in a coordinated media campaign to pressure Google to change the way its search engine works. It’s pretty damning:

The document thus shows that the CID was not the foundation of a legitimate investigation?rather, it was a ?final step? that would be issued only ?if necessary? to further pressure Google to capitulate to the demands of AG Hood and his supporters.

The court has yet to rule on what else Hollywood needs to turn over, but just from what’s coming out already, serious questions are being raised (1) about Jim Hood and his office and what they were up to as well as (2) the editorial independence of the media arms of the MPAA studios, including both NBCUniversal (“the Today Show”) and NewsCorp. (the Wall Street Journal).

Filed Under: editorial independence, jim hood, media, mississippi, news, smear campaign, today show, wsj
Companies: comcast, google, mpaa, nbc universal, newscorp

Google Giving Away Some Of Its Patents To Startups To Help Protect Startups From Trolls

from the good-move dept

A year ago, we wrote about the launch of a new program from a bunch of bigger tech companies who were sick of patent trolls: the “License On Transfer” network (LOT). The program, set up by Google, NewEgg, Dropbox, SAP, Asana and Canon was pretty simple in concept. It’s a royalty-free patent cross-licensing program. If any patent held by a member of LOT is transferred to another company, a license is automatically granted to every member of LOT. This serves to avoid patents eventually falling into the hands of trolls and being used against members. A bunch of other companies have joined since it launched, including Redhat, GitHub, Ford, JPMorganChase, Mazda, Khan Academy, Pandora and more. It certainly doesn’t solve all the patent trolling problems, but it is a nice way to make sure that patents from these organizations are less likely to be used for trolling and has a really nice incentive structure in that to protect yourself from patent trolling you basically have to make sure your patents are less likely to be used by trolls as well.

LOT is still trying to expand, and it appears that Google is taking a step to make it even more attractive, especially for startups: the company is going to start giving away some of its patents to startups, for free, if they meet a few conditions — including joining LOT (though the membership fees for the first two years will be waived). The program is only available to the first 50 eligible participants who sign up — and to be eligible, you need to have 2014 revenue between $500k and $20 million. Then Google will offer specific “patent families” from which the startups can choose to take. These patents will not be ones developed by Google itself, but rather ones that it has bought from others. And, of course, the startups agree to issue a license back to Google. And, most importantly, they must agree to only use the patents defensively. If used offensively, the patents go back to Google.

In other words, it’s another win-win setup. Startups can get some decent patents for free that they can use for defensive purposes, and LOT gets more members from the startup community. The only ones who “lose” are the trolls and their lawyers, but I can’t fathom any reason to be upset about that.

Of course, if we just fixed the damn patent system so that low quality patents and patent trolling were stopped, none of this would be needed. So, in some sense, it’s a bit depressing that all of this is really an economic dead weight loss on society created by a broken patent system. But, at the very least, it’s nice to see companies proactively looking for non-regulatory/non-legislative ways to minimize the damage created by a broken system.

Filed Under: license on transfer, patent trolls, patents, startups
Companies: google, lot network

Geniuses Representing Universal Pictures Ask Google To Delist 127.0.0.1 For Piracy

from the furiously-dumb dept

We recently wrote about a German film distributor that went on a DMCA takedown blitz and managed to send notices for sites that had nothing to do with infringing files (such as IMDB and, er, Techdirt). In a somewhat related story, we learn that representatives of Universal Pictures have likewise gone DMCA happy over infringing versions of movies like Furious 7 and Jurassic World — even to the point of issuing takedowns not only for the film’s IMDB page (for Furious 7), but for “127.0.0.1” for Jurassic World.

And while we’re on the topic of self censorship, it’s worth noting that Universal Pictures also asked Google, in a separate notice, to remove http://127.0.0.1 from the search results. The mistakes were made by the French branch of the movie studio, which only recently began sending takedown notices to Google. The company has reported less than 200 URLs thus far including the mistakes above.

You can see the notice here.

127.0.0.1 is, of course, the IP address a machine uses to refer to itself. It’s also known as “localhost.” In other words, it basically means “home.”
…Should we delist this house from the address books? This is obviously a case of these companies setting up some kind of automated system, working off of an obviously flawed algorithm, that is causing these errors, rather than having real people going through to see if the targets for these takedown notices are actually infringing. Why do we allow this kind of collateral damage in the DMCA system?

Even more ridiculous? The organization representing Universal who sent this notice is TMG, or Trident Media Guard, which is the company that is officially working with the French government on its Hadopi copyright enforcement program. You’d think that a company so closely involved in such issues, working with a major movie studio, might try to be a little more careful about these things. But, of course, when have copyright defenders ever cared about collateral damage like this?

And here’s the really crazy part: it’s not like this is even particularly rare. Chilling Effects has long lists of DMCA complaints that point to 127.0.0.1. We’re talking about a whole lot of armed militias running around utilizing a targeting system that wouldn’t be trusted in a snowball fight, never mind in the realm of something as important as speech and communication via the internet. Here are just some of the most recent (many filed by NBC Universal):

If we have to live with the DMCA, filers ought at least be forced to take responsibility for their own notices. Pointing back to their own flawed algorithms shouldn’t be an excuse — especially when the requests are so obviously wrong.

Filed Under: 127.0.0.1, copyright, dmca, france, hadopi, localhost, takedown
Companies: google, tmg, universal, universal pictures

German Film Distributor Issues Takedown Request Falsely Targeting IMDb, Reddit And Techdirt

from the HOW-DO-I-ANTIPIRACY dept

You’d think it wouldn’t be too hard to vet a DMCA takedown request for false positives, especially when the request only includes 28 URLs. You’d be wrong.

TMG (Germany’s Tele Munchen Group, which acts as a European distributor for several motion picture studios) issued a takedown request on behalf of Universal Pictures France, hoping to delist links to a few movies. But its algorithm is obviously flawed.

To start with, it listed our article on the Hacking Team hack under its list of supposedly infringing URLs for the movie “Hacker.”

Now, Hacking Team itself announced shortly after the data dump that “law enforcement was involved” and that orders were being sent out to have their leaked documents and emails removed from the web. Without a doubt, Hacking Team does have law enforcement involved somewhere, but takedown notices from the company itself have yet to arrive. (Third parties seem to be a bit more active on that front.) And with the documents stashed multiple places around the web, any takedown requests will be little more than symbolic.

I doubt it’s using distant third parties to achieve its takedown goals, but clumsy, automated, Googling, “content protection” companies and rights holders are perfectly capable of inadvertently achieving the same aim.

It appears TMG’s search for infringing URLs includes little more than the title, as this same request also targets a Reddit post that has nothing to do with its “Hacker” movie.

Instead, this links to a twitch.tv account of a gamer allegedly using hacks to get an edge in DotA 2 (Defense of the Ancients 2). Obviously, this has nothing to do with copyright infringement.

And, for good measure, TMG’s efforts on behalf of Furious 7 in the same takedown request targets the movie’s IMDb page. Because why not take down a wholly legitimate page on a wholly legitimate site that not only offers a wealth of information on the movie itself, but also acts as an unpaid promotional platform, what with its ample supply of trailers and links to retailers.

And, yes, some people will point out that most of what is targeted appears to be infringing content (or links to it). But here’s the thing. It doesn’t take long to vet small requests like these for false positives. At the very least, TMG owes it to the rights holders that pay for these services to issue legitimate takedown requests. Something like this making its way to Google makes TMG look, at best, clumsy, and at worst, incompetent and censorious. And while it’s rarely a concern for rights holders and content protection companies, they also owe it to the rest of the internet to do their best to avoid targeting legitimate URLs — especially those that have absolutely nothing to do with the content being “protected” and are, as in the case of IMDb, sites that can actually increase sales.

Filed Under: dmca, hacker, takedown
Companies: google, tele munchen group, tmg, universal, universal pictures

Google Follows Newegg In Going Over East Texas Court's Head To Ask Court Be Ordered To Do Its Damn Job

from the issue-the-ruling-already dept

So we had just written about Newegg — after waiting 20 months for a ruling in a patent case — going to the Court of Appeals for the Federal Circuit (CAFC) to ask for an order telling the district court in East Texas to actually do its job. The move worked, getting Judge Rodney Gilstrap to finally issue the order (overturning a jury award on a bogus patent), but still taking the time to scold Newegg for daring to go above his head. We quoted Newegg’s top lawyer Lee Cheng pointing out that if, as Gilstrap stated, part of the issue was his overwhelming schedule, then Gilstrap and other East Texas judges should be much more willing to grant transfer requests to courts outside of East Texas. As has been known for the better part of a decade, patent trolls love to file in East Texas because the courts there are super friendly to trolls. There is no legitimate reason for them to be in Texas, though some of the trolls set up fake empty offices in Texas just to pretend.

Either way, it looks like Google took Newegg’s idea and decided to run with it as well. It, too, has now gone to CAFC to seek a writ of mandamus telling the East Texas court to rule on its request to transfer a patent troll lawsuit to Northern California:

This petition arises out of a patent infringement suit filed against Google by Brite Smart Corp. in July 2014, which was assigned to a magistrate judge. On October 24, 2014, Google moved to transfer the case to the United States District Court for the Northern District of California. The magistrate judge received Brite Smart?s response on November 10, 2014, and Google?s reply and Brite Smart?s surreply by December 1, 2014, but has yet to rule on the motion. Nonetheless, the magistrate judge has ordered the parties to engage in extensive discovery, including the taking of depositions and exchanging infringement and invalidity contentions, and held a Markman hearing.

At times, a lengthy delay in ruling on a request for relief can amount to a denial of the right to have that request meaningfully considered….

[….]

Here, Google filed its motion to transfer approximately eight months ago. Yet, despite the obligation to ?promptly conduct? such proceedings, … there has been no ruling, not even a hearing. Meanwhile, the magistrate judge has pressed forward with the case, proceeding through to the close of discovery and conducting both a Markman hearing and a hearing related to several discovery disputes. Brite Smart makes much of the fact that Google moved to supplement its motion to transfer. However, Google?s supplement amounted to less than two pages highlighting seven lines of deposition testimony. It does not account for the previous months of district court indecision. And Google expressly asked the district court to deny the request if it meant further delay on the transfer motion.

Given this passage of time and magistrate judge?s ordering of substantive development of the case, Google has made a compelling case that the magistrate arbitrarily refused to consider the merits of its transfer motion. We therefore direct the magistrate to rule on the motion to transfer within 30 days and to stay all proceedings pending completion of the transfer matter. We remind the lower court that any familiarity that it has gained with the underlying litigation due to the progress of the case since the filing of the complaint is irrelevant when considering the transfer motion and should not color its decision.

Again, it seems that there is no excuse for this, other than that the East Texas courts are buried under all these patent lawsuits, and the easiest way to deal with that problem is to promptly transfer out cases that don’t belong there.

Filed Under: delays, east texas, jurisdiction, rocket docket, venue transfer, writ of mandamus
Companies: brite smart, google, newegg

Canadian Court Says Google Isn't A 'Publisher,' Not Responsible For Defamatory Content Returned In Search Results

from the because-duh dept

Slightly over a month ago, a Canadian court (British Columbia) issued a ruling that basically stated it could order Google to block websites globally. This nonsensical, overreaching order was issued on behalf of plaintiff Equustek Solutions, Inc., which hadn’t even originally named Google as a defendant. It wasn’t until Google appealed the decision that it was actually roped into the lawsuit. The court defended all of its stupidity by pointing out the real problem here was Google’s global reach, not the impossibilities and idiocy of its own decision.

For what it’s worth, another Canadian court has come down on the side of Google, choosing not to hold it responsible for returning search results plaintiffs don’t like.

Last month, Justice Lauri Ann Fenlon refused to force Google to block defamatory comments about a Vancouver lawyer, Glenn Niemela, from its global search results.

The British Columbia Supreme Court finds Google’s position as a search engine to be wholly unlike that of a “publisher.” This would be the sane view — the one not espoused by the Equustek decision.

The plaintiff has been fighting to remove allegedly defamatory content from the internet. Google, for its part, had voluntarily delisted several URLs from being accessed at Google.ca (but not elsewhere at other domains). That wasn’t good enough for Niemela, who wanted Google to remove them worldwide. This was despite the fact that Google wasn’t under any legal obligation to delist anything and despite the fact that Niemela had to perform a bit of search engine wrangling to even get the offending URLs to show up.

In the present case, Mr. Niemela has identified additional URLs but they appear to be pre-existing links buried deep in search results. For example, in his tenth affidavit sworn January 20, 2015, Mr. Niemela states:

2. On January 6, 2015 I did a Google search of “Glenn Niemela”.
3. I searched to the last page displayed on the search results. The last page was page 38. Page 38 has the following notation:

In order to show you the most relevant results, we have omitted some entries very similar to the 380 already displayed.
If you like, you can repeat the search with the omitted results included.

Attached hereto as Exhibit “A” to this my affidavit (pages 3 and 4 of this affidavit) is a copy of page 38.

4. When I clicked on the above notation on January 6, 2015 the search on “Glenn Niemela” expanded to 69 pages.
5. On January 14, 2015 twenty-two (22) defamatory snippets and an associated twenty-one (21) URLs are released on this second layer of Google searches.

Each page on Google’s search results contains 10 URLs, with the most relevant and useful at the top of the list. I take judicial notice of the fact that few searchers will be motivated to move through 380 search results on 38 pages to reach what Mr. Niemela describes as “the second layer”. In any event, Google has agreed to block those URLs as well, voluntarily removing them from google.ca.

But Niemela still wanted an injunction because he was convinced these buried URLs were still harming his legal practice. The court notes that 90% of the searches for his name originated in Canada, where all the “harmful” URLs are currently being blocked. It also notes that Niemela performs 100% of his legal work in Canada, which would make him particularly well-insulated against the contents of these posts.

Furthermore, it points out that there are limits to what the court can actually order a site to do in other countries. Niemela has issues with US search results, but the Supreme Court correctly notes (unlike the other BC court) that it can’t actually make Google do anything in the US.

Finally, the Court is reluctant to make an order that cannot be complied with. Mr. Niemela acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States. Two federal statutes, the Communications Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.

Among the other issues the court had with this particular case are the fact that Niemela sat on these “harmful” URLs for two years before bringing the lawsuit. Not only that, but he had failed to show any evidence that the existence of these URLs (and their accessibility from other countries) had actually harmed his current and future business prospects. Damningly, the court flat out states that Niemela is his own worst enemy, and that perfectly legal (and non-defamatory) detrimental information about him and his practice is easily accessible to anyone using Google from anywhere.

[W]hile Mr. Niemela attributes the decline in his law practice to the defamatory statements and their general accessibility through search engines such as Google’s, there are other possible explanations. A disciplinary history with the Law Society is prominently revealed in Google searches of “Glenn Niemela”.

Even if Niemela had put together a better case, it’s unlikely this particular court would have followed the other BC court into infamy by issuing an impossible, imprudent and likely illegal court order. The court found that “publication” is a necessary element of defamation, and Google — no matter its marketshare and global reach — is nothing more than a search engine.

Filed Under: canada, defamation, glenn niemela, global, intermediary liability, vancouver
Companies: google

Google Revamps Patent Search To Actually Do What Patent Office Should Do

from the pulling-in-more-info dept

A few years ago, Google seemed to downgrade its patent search features, pulling away a separate “Google Patents” section and mixing it back into the main Google search. This seemed like a major step backwards, especially given how terrible the US Patent Office’s own patent search engine was. Google has tried to do a few things like launching a “prior art finder” and teaming up with StackExchange to help crowdsource prior art. I’m not quite sure how well either program has gone, but Google has now upgraded its patent search efforts yet again to create a service that one would have hoped the patent office would have built itself, though it has not:

The new Google Patents helps users find non-patent prior art by cataloguing it, using the same scheme that applies to patents. We?ve trained a machine classification model to classify everything found in Google Scholar using Cooperative Patent Classification codes. Now users can search for ?autonomous vehicles? or ?email encryption? and find prior art across patents, technical journals, scientific books, and more.

We?ve also simplified the interface, giving users one location for all patent-related searching and intuitive search fields. And thanks to Google Translate, users can search for foreign patent documents using English keywords. As we said in our May 2015 comments on the PTO?s Patent Quality Initiative, we hope this tool will make patent examination more efficient and help stop bad patents from issuing which would be good for innovation and benefit the public.

Of course, it’s not clear if USPTO examiners are even allowed to use tools like this, but it seems like providing better tools to examiners, and widening the corpus that they’re allowed to search (right now they focus on past patents and limited journal searches) can only serve to stop at least some bogus patents from getting through.

Filed Under: patent search, patents, prior art, uspto
Companies: google

Authors Guild Cements Reputation As Luddites: Hates The Internet And Especially Amazon

from the fighting-against-the-future dept

The Authors Guild has something of a reputation for being anti-innovation, anti-technology, anti-future and anti-consumer. It’s also anti-small author. And it appears to be flexing its lobbying muscle this week to make all of this clear. It starts off with a move to ask for a dangerous idea in copyright reform, asking the House Judiciary Committee to implement a “notice and staydown” provision in any revamped copyright law. Just last year we warned people that “notice and staydown” was the way in which the legacy copyright industry extremists were looking to rebrand SOPA, and it has quickly become the preferred language of those looking to expand copyright and to attack innovation online.

The Authors Guild letter is ridiculous beyond belief. It starts off with the usual whining about poor, poor authors unable to make a living any more.

We are writing to ask you to make certain much-needed changes to the Copyright Act to help curtail Internet book piracy. Writers’ income is in steep decline. There are many reasons for this, but a decrease in copyright protection and the aggregate effect of Internet piracy play an important role: the entire publishing industry loses $80 to $100 million to piracy annually, according to a 2012 estimate by the Association of American Publishers. Meanwhile, a recent Authors Guild survey shows that approximately 67% of our authors earn less than the poverty level from their writing, with median writing-related income at $8,000, down 24% since 2009, when e-book sales started to take off.

Books provide an essential contribution to our society. Most authors don’t expect to get rich from what they do: they write to inform, educate, and entertain, and in doing so add to our common store of knowledge and culture. But to keep writing, they must be able to support themselves and their families. This has become increasingly difficult in the digital age.

Notice how, like the music and movie industry’s before them, the Authors Guild immediately attacks online file sharing as if it must be the cause, ignoring all possible alternatives. In the book space this is particularly ridiculous, because the lowered barriers to entry from the internet means that many authors can now be published when that wasn’t a possibility before. The number of ebook authors has exploded. Perhaps — just perhaps — rather than blaming “piracy” for the difficulty the elite club of the Authors Guild has, they might recognize the law of supply and demand, and recognize that the greater competition means that the monetary spend on the written word has been spread more widely. That’s allowed lots of brand new authors to make a living from their writing, despite being passed over by the traditional publishers.

And, yes, many do not make a living, but that has always been the case. I know many people who have written books, and even those who have tried to “make a career” of it. And most don’t. It’s just not that easy to make a living as a book writer, and it’s not because of piracy. As authors like Paulo Coehlo have found, file sharing can help authors build a larger audience and to make more money in the long run, if they learn how to embrace their fans, rather than actively push them away, like the Authors Guild often does.

Online book piracy, once the province of shady offshore websites, has migrated to mainstream American distribution platforms. Our “Notice and Takedown” system is completely inadequate to combat this problem. What we need instead is a “Notice and Stay-Down” regime: once a webhost knows a work is being infringed, it should not receive continued “safe harbor” immunity from claims of infringement unless it takes reasonable measures to remove all copies of the same work.

As we explained last year, this is one of those ideas that copyright holders love, because they don’t understand copyright law in the slightest, or how any such system would inevitably work. The main problem is that copyright is context specific. Identical copies could be infringing or not infringing, depending on context. For example, remember when Viacom sued YouTube over video clips that Viacom itself had uploaded? A “notice-and-staydown” provision takes away the context and with it plenty of non-infringing works as well.

The Authors Guild also argues that it’s somehow easy for companies to automate all this:

ISPs, on the other hand, do have the ability to monitor piracy. Technology that can identify and filter pirated material is now commonplace. It only makes sense, then, that ISPs should bear the burden of limiting piracy on their sites, especially when they are profiting from the piracy and have the technology to conduct automated searches and takedowns. Placing the burden of identifying pirated content on the individual author, who has no ability to have any real impact on piracy, as the current regime does, makes no sense at all. It is technology that has enabled the pirate marketplace to flourish, and it is technology alone that has the capacity to keep it in check.

This is just wrong on so many levels. First, if the Authors Guild is so worried about big companies, a policy like this makes them more entrenched. Even if we were to accept the Authors’ Guild’s faulty claim that these tools actually work (they don’t), the argument that tech companies now have easy access to these tools is also not true. Big companies have access to these tools. But the next generation of startups do not. Thus, this policy would leave Amazon and Google in charge and block out any new company. Is that really what the Authors Guild wants?

Second, these systems don’t work. We point out false takedowns on YouTube via ContentID all the time (and frankly we don’t write about most of the ones that we see). Advocating a filter that will inevitably lead to greater censorship is a ridiculous position for the Authors Guild to be taking. And, by then putting legal liability on tech companies if they don’t do this makes even worse, as it will only create more incentives for the tech companies to over censor to avoid any possible liability.

There’s a reason why the burden does not belong on the intermediaries and it’s pretty straightforward: the intermediaries don’t know if it’s infringing. That’s something that only the copyright holders can legitimately determine. That’s why the system requires notice from the copyright holders.

The purpose of copyright is to encourage the creation of new works–including and especially literary works, which contribute so greatly to our nation’s store of knowledge and culture. To continue to work effectively, US copyright law must provide meaningful protection against the widespread online piracy of books and journals, so that authors can afford to write them.

Actually, the purpose of copyright is to “promote the progress” of learning and education, and it’s supposed to do that in two parts: one by creating incentives for new works, but also to then benefit the public by increasing distribution of those works. And, we’re already living in a golden age with more books being written and published today than ever before. To argue that ebook piracy has somehow taken away the incentive to write… well, the evidence just suggests that’s wrong. And, again, most authors never make much money at all. To complain that authors don’t make enough is a different issue altogether and has little to do with copyright.

Of course, the Authors Guild didn’t stop there. Also this week it went on the offense against Amazon, asking the Justice Department to investigate Amazon for antitrust violations — even though the DOJ already looked into Amazon’s practices and found them to be fine (instead finding Apple had violated antitrust law in colluding with publishers to raise ebook prices). But, don’t mind the details, the Authors Guild is sure Amazon is to blame. According to the Authors Guild, the fact that consumers benefit from lower book prices shouldn’t let Amazon off the hook.

Without commenting on the outcome of the Apple case, or the facts that led the majority to its conclusion, we’d like to point out the long-term dangers of interpreting antitrust law solely to favor low book prices over a thriving competitive and robust literary marketplace.

Yes, how dare you focus on the actual benefits to consumers, DOJ!

A related letter from “Authors United,” again seems to attack Amazon for daring to offer good prices to consumers, as if that’s some sort of horrible antitrust violation.

Personally, I think it would be great if there were more competition in the ebook space, though we have seen it start to expand, with Apple, Google and others entering the market. But, the reason those companies (despite their own market power) have had trouble making a real dent in the market is because people really like Amazon. Amazon does a pretty good job making it easy and convenient to buy ebooks, to read reviews, to find similar works, and — of course — to read the ebooks as well. It would be great if there was more competition — and that it would lead to lower prices, better features and less DRM. I’d be all for it. But that’s not what the Authors Guild is arguing for. They don’t want an open marketplace. They don’t want competition. They want higher prices and less competition from the riff raff authors who aren’t signed to big publishers and aren’t members of the Authors Guild.

It’s not hard to see the consistent logic behind all of this. The Authors Guild doesn’t like the internet at all. It used to have a good thing in the old days, pre-internet. It could keep out the riff raff, anoint authors as the chosen ones, and make money off of those few giant authors. These days it’s much harder and there is a real marketplace. The Authors Guild can’t compete, so it runs to the government to “fix” things. It attacks internet companies like Google and Amazon not because they’re doing anything unfair, but because they’re actually bringing real market economics to the market for books. And the Authors Guild can’t allow that to to continue.

Filed Under: antitrust, authors, books, copyright, dmca, intermediary liability, notice and staydown, notice and takedown, writing
Companies: amazon, authors guild, google