Intellectual Property

While Google may be slowly losing the legal battle over the amended Google Book Settlement Agreement, the protracted legal process and Google's political "slow rolling" of the broader process are enabling Google to win the much larger marketplace war for global dominance over digital content and distribution.

• From a big picture perspective, Google is cleverly "playing" and slow rolling both rights holders and the DOJ because Google understands that time is on Google's side, not the side of rights holders or the Government.
• Google's market dominance is only growing and becoming more irreversible, and copyrighted material is only being devalued as long as Google is the only entity that can copy it without permission and currently commercialize it for themselves via search without any compensation to rights holders.   

Takeaway #1: DOJ still strongly objects to the proposed amended settlement (ASA).

In the DOJ's latest statement of interest to the court, the DOJ continues to strongly object that the ASA violates three bodies of law: class action, copyright and antitrust. Key opposition quotes: 

Ellen Nakashima may have a career-making scoop with her front page Washington Post investigative reporting piece: "Google to enlist NSA to help ward off cyberattacks."  

• As Publisher of the Google watchdog site, www.GoogleMonitor.com, I can't say I am surprised about a Google-NSA connection, especially given that over the last year my PrecursorBlog has posted: 

1. An 18-part "Privacy vs. Publicacy" series;
2. A 6-part "Security is Google's Achilles Heel" series; and 
3. A 16-part "The Open Internet's Growing Security Problem" series. 

Ms. Nakeshima's revelation that Google sought out NSA's help shortly after it suffered massive cyber-attacks, apparently from China, opens a Pandorra's Box of privacy issues given that Google's aggressive "publicacy" (anti-privacy) business model, policies and practices have shown little respect for people's privacy in practice over the last decade.

Most have missed that there's a big antitrust showdown happening this week. 

• February 4th, the DOJ must file a second round of comments on the Google Book Settlement 2.0 with Federal District Court Judge Chin, after Google almost completely ignored DOJ's substantial legal objections in its Book Settlement 2.0 revision.   

The Google-DOJ showdown in a nutshell:

• The DOJ's 9-18-09 Statement or Interest made clear DOJ believes the settlement is likely illegal under three completely different bodies of law (class action, copyright and antitrust), and also may be per se illegal in multiple different ways. (analysis here.)
• Google and the other parties, in their 2.0 revision of the Book Settlement, almost completely ignored the DOJ's stated legal concerns.
• If Google and the parties do not address the DOJ's concerns in advance of the DOJ's second statement of interest filing due February 4th, the DOJ will be thrust into law enforcement mode.     

This is a big deal.

• The DOJ has drawn a line in the sand that the Google Book Settlement as configured is illegal and anticompetitive.

At core the FCC's contemplation of reclassifying, or effectively treating, unregulated broadband info services as regulated telecom services, would be tantamount to the FCC declaring "eminent domain" over private broadband providers, i.e. justifying a government takings of private property for public uses, but doing so "without just compensation" or any statutory authority. 

• The U.S. Constitution's Fifth Amendment requires: "nor shall private property be taken for public use, without just compensation."

A gaping missing element in all the FCC's discussions of all the new "public uses" it envisions for broadband in its pending National Broadband Plan and its proposed preemptive Open Internet regulations is any consideration at all of the potential hundreds of billions of dollars of un-budgeted liability to the U.S. Treasury that could result from the takings of private network property without just compensation -- at a time of skyrocketing trillion dollar Federal budget deficits and rapidly mounting public debt.   

January 27, 2010

For Immediate Release

Contact: Scott Cleland

703-217-2407

Media@GoogleMonitor.com

GoogleMonitor.com Launches Today

Will spotlight Google’s lack of transparency and accountability

The theft of Google's source code is the under-appreciated and under-reported new development in Google's big announcement of Google's "new approach to China" and its apparent decision to withdraw its business from China if China continues to insist that Google censor search results for in-country Chinese.  

• Google: "In mid-December, we detected a highly sophisticated and targeted attack on our corporate infrastructure originating from China that resulted in the theft of intellectual property from Google." [Bold emphasis added]

FreePress, which philosophically opposes competition policy, effectively is mocking antitrust law and authorities by cynically feigning to care about antitrust and competition in calling for an antitrust investigation of "TV Everywhere" efforts to enable authenticated paying video customers the additional convenience of accessing their paid-for content on any device at no extra cost. 

• FreePress is misrepresenting its latest report -- "TV Competition Nowhere" -- as antitrust analysis when it is standard FreePress villain-ization of broadband and media businesses.   

In their own words, FreePress is anti-competition, anti-property, and anti-business. 

Connecting the dots of several recent important developments, Google increasingly is acting autocratically like it has unlimited power and is answerable to no one.

• More and more it appears to operate like a centralized, sovereign, virtual-State exercising control over the world's information, info-commerce and Internet users.

Consider these several Google public actions over just the last month or so:  

Search:

I admire clarity of thought, and Richard Epstein's Op-ed in the Financial Times, "Net Neutrality at the Crossroads," represents some of the clearest thinking I have found on net neutrality. Please read it.

Mr. Epstein does a great job of exposing the folly beneath the vacuous sloganeering of net neutrality proponents.

I kid you not. Google's latest antitrust defense, from the mouth of Dana Wagner, Google's lead antitrust lawyer, is: "We want to be Santa Claus. We want to make lots of toys that people like playing with. But if you don't want to play with our toys, you've got us."

• See the quote for yourself at the very end of a Globe and Mail article entitled: "Google: we're not evil and we're not a monopoly either."
  • Google's Mr. Wagner continues: “In a West Coast company run by engineers, I don't think there was much attention paid to being in Ottawa, being in D.C. and telling your story,” Mr. Wagner says. “If you don't tell your story, other people do it for you.”

Let me attempt to unpack the irony of this new story/metaphor of which Google has taken ownership. 

Most companies when they tell their corporate "story" try to "put their best foot forward," but no one but Google would think to try and slip jolly megalomaniacal corpulence down the narrow chimney of public credibility.  

Only Google would have so little real-world self-awareness as to choose to wrap itself in the beloved mythical role of Santa Claus who has the unique power to decide who has been good or "evil" during the last year, and the unique power to reward those who have been "good" in Google's eyes with toys and punish those who have been "evil" with coal in their stocking. 

Only Google would think it was good PR to allude to Google's secret search algorithms and auction "quality scores" as a worldwide "naughty and nice" list.