Piracy

Viacom is likely to ultimately prevail in its appeal of the lower Court decision in the seminal Viacom vs. Google-YouTube copyright infringement case.

• If one only reads either the lower court's decision or the press reports of it, without considering likely appellate arguments and the broader constitutional context of copyright protection, it is easy to missread the likely ultimate outcome here. 
• Both sides agreed to an expedited summary judgment process in the lower court, because both sides fully expected this case to ultimately be decided at the appellate level, and most likely by the U.S. Supreme Court.
• Expect the Second Circuit Court of Appeals in New York to decide Viacom's appeal in 2011 and the Supreme Court to likely take the case and decide it in 2012 -- given how central this case is to maintaining copyright protection in the Internet age.

Why is Viacom likely to prevail on appeal?

Google has much to lose in its ill-advised PR and public policy war with Apple, its previous closest Silicon Valley ally.

Antitrust or Fiduciary liablility? Google's recent market behavior puts Google and its CEO Eric Schmidt in a lose-lose situation.

Google unwisely brought closer scrutiny to Google's public representation of its business model by pushing WSJ columnist, Holman Jenkins, to run this footnote/correction: 

• "Google objected to a line in a column two weeks ago that summarized its business in part as "collecting data it can sell to advertisers." We didn't say "user data," but Google nonetheless wants you to know it doesn't sell any data directly to advertisers, and doesn't employ user data to sharpen the efficiency of its search advertising, but only its display ads."

With all of the controversy surrounding Google's business model (WiFi privacy-invasion investigations on four continents... a massive private data spill from Chinese hackers stealing Google's password security system... and increasing calls for the DOJ/EU to bring an antitrust case against Google), it seems particularly ill-advised for Google to be nitpicking about how Google wants to represent/misrepresent its business model to the public.

Let's parse Google's misleading nitpicking.

First, Google is being too cute by half in insisting its business is not as Mr. Jenkins succinctly encapsulated it to be: "collecting data it can sell to advertisers."

Google's CEO Eric Schmidt, dismissed the notion that Google was "arrogant" in an FT interview.

• Mr. Schmidt: "The arrogance comes across because we trying to do things for end-users against organised opposition from stakeholders that are unhappy -- and they paint us as arrogant. But I am sure that all successful organisations have some arrogance in them."  

It seems to me that "the arrogance comes across" with Google because Google operates, and expects to operate, under a double standard -- where rules, laws and expectations apply to others, but do not, and should not, apply to Google -- because Google is somehow special.

The latest example  of Google's expectation to be treated differently and better than Google treats everyone else -- is Google's "permissions" policy.  (See the Goobris Series below for other examples.)

Google's wanton "wardriving," i.e. detecting, accessing, and recording residential WiFi networks in 30 countries for over three years, was not simply a "mistake," "inadvertent," or an "accident" as the Google's PR machine has spun it. The evidence to the contrary is overwhelming to anyone who bothers to examine it closely. 

• Google's wanton wardriving was either: gross incompetence/negligence or wrongdoing. 
  • Government investigators must determine for themselves via subpoena, whether or not anyone at Google, in a supervisory or management position, knew that this private "payload" data was being collected, and whether or not this private data had been accessed, copied, analyzed, or used by Google in any way.

The case for why Google's wanton wardriving is more than just a "mistake."        

I.  Identifying the questionable practice: "Wardriving"

Google's latest privacide admission -- that all of Google's roving StreetView vehicles around the world have been recording some of people's WiFi traffic/web behavior since 2007 -- should prompt privacy officials and the media to ask the simple question: why does Google serially keep having privacy scandals?

Simply Google will continue to have privacy scandals because Google has deep systemic privacy flaws and vulnerabilities -- by design.

• At core Google philosophically believes in "publicacy" that the world is a better place with more openness/transparency rather than closed systems or private/proprietary information.
• Thus Google has a publicacy mission, culture, business model, and no serious of effective system of management and internal controls to protect people's privacy.    

1.  Publicacy Mission: Google's infamous publicacy mission is to "organize the world's information and make it universally accessible and useful." It is their mission to collect whatever information they can, where ever they can, whenever they can without regard to whether it is private or proprietary information. As Google's repeated privacy flaps prove, they believe it is more efficient to ask for forgiveness than for permission.   

Well informed reports (that Google will not deny), that hackers breached Google's most sensitive software code, the Gaia password system, surface titanic security flaws at Google.     

Why Google is too big not to fail. 

1.  "Bigtable" Storage design: How Google stores and accesses "all the world's information" in and from its data centers is: "'Bigtable:' a Distributed Storage System for Structured Data." It is Google's innovation to maximize scalability, speed and cost efficiency -- not security, privacy, or accountability. Simply, Bigtable is an "all eggs in one basket" approach to information storage and access.

The abrupt change, that Google's CEO Eric Schmidt will no longer be accountable to shareholders on Google's earnings calls, should prompt investors to ask why? 

• Google claimed that they wanted to put more focus on Google's strong financials, but they did not disclose any more than Google's usual barest of minimum of information to investors.  
• The most obvious reason for this abrupt change is the literal explosion of real franchise liabilities and risk overhangs to Google that reared their ugly heads this past quarter. 
  • Had CEO Schmidt been available to answer investor questions, Google's exploding liabilities could have dominated the Q&A and the investment narrative coming out of the earnings call.

What has changed, and what Google has been not been open about, is the very serious ripening of three different types of going-forward franchise risks (antitrust, privacy/security, and intellectual property) that cumulatively herald a de facto change in Google eras: from the roaring "Growth Decade" of 2000-2009, to the more unpredictable "Liability Decade" of 2010- 2019.

Don't miss an outstanding op-ed by Devereux Chatillon entitled "It's about search Stupid" about the Google Book Settlement.

It is on point, insightful and has great clarity of thought.

It also employs a brilliant metaphor to capture the essence of Google's monopoly power -- search as a map.

• "If websites, databases and other content are the landscape of the virtual world, then search engines are the maps. Without search engines, the landscape is confusing and getting lost a certainty. With them, finding one's way through the dense forest of information is possible if occasionally made difficult with unexpected detours and dead-ends. Disappearing from the results of dominant search engines leads to invisibility. And if one has a website, a blog, an ecommerce site, or a database that no one knows exists, it is useless."
• Please click here to read on.