Author: Jeff John Roberts

  • Court slams shut music locker ReDigi, says “first sale” doesn’t apply

    A court ruled on Saturday that “music locker” ReDigi, which offers consumers a way to resell music they purchased from iTunes, is liable for copyright infringement. The ruling is likely to force the service to shut down and also dims the prospect for a mainstream marketplace for used digital goods.

    ReDigi touts itself as a legal source of secondhand music. It works by inviting users to upload iTunes tracks to a cloud-based “locker” where other users can purchase them. When someone buys a track, the song is transfered to the purchaser’s locker and Redigi performs a sweep of the seller’s computer to ensure he or she hasn’t held onto a copy — an arrangement that ReDigi argues makes it akin to a used record store.

    Capitol Records sued ReDigi, claiming that the service had sold more than 100 of its copyrighted recordings without permission. After refusing to issue a preliminary injunction in February 2012, a New York federal judge this weekend ultimately sided with Capitol.

    In his ruling, U.S. District Judge Richard Sullivan roundly disagreed with Redigi’s record store theory, arguing that that its “first sale” defense — a copyright defense that lets people sell used works — did not apply because the works in question were not legally obtained in the first place. Instead, Sullivan argues that ReDigi made illegal copies of the songs and then offered them for sale. Rejecting the record store analogy, the judge offered a metaphor of his own:

    “The first sale defense does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.”

    Sullivan’s skepticism also appeared to be driven by the economics of ReDigi’s business model, in which the startup takes a 60 percent cut of each transaction, dividing the remaining 40 percent between the seller and a fund for artists.

    The ruling, which relies heavily on the technical fact that the ReDigi’s model includes making a copy, is likely to please copyright owners while disappointing technology enthusiasts who argue that consumers should have a right to resell digital media the same way that they can resell CDs and print books. Sullivan acknowledged that the Copyright Act is unfriendly to digital reselling but suggested the issue is one for Congress, not courts, to address.

    The ruling — which you can read in full below — did not include damages or an injunction, but it’s a safe bet these are coming soon. Sullivan found ReDigi liable on summary judgment for several types of copyright infringement, as well as for contributory and vicarious infringement — meaning that Redigi is guilty, like music-sharing service Napster, of encouraging its users to breach copyright.

    The decision may also mean that any future digital resale market is likely to be created by the likes of Amazon, which recently obtained a patent for an “electronic marketplace.” Such a service would likely operate in conjunction with copyright owners. In the meantime, there is likely to be heated debate over the “ticking time bomb over digital goods.”

    Redigi Capitol

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  • Cord cutter alert: Aereo in talks with Dish and AT&T to expand TV-on-the-go

    Aereo, the controversial service that lets people watch and record TV on their mobile devices, is discussing partnership arrangements with pay-TV companies and  internet service providers to expand its reach. Such an alliance could expand Aereo’s market penetration and entrench its role as one of the biggest potential disruptions to the existing TV business.

    For anyone unfamiliar with Aereo, the Barry Diller-backed company lets subscribers rent mini personal antennas that can beam and record over-the-air TV to mobile devices and laptops under two plans. One costs $1 a day, or there’s a monthly subscription for $8. For those eager to hear more, Aereo CEO Chet Kanojia will be speaking at paidContent Live on April 17 about his plan to disrupt the TV industry.

    News of Aereo’s discussions with Dish, AT&T and others comes by way of a Wall Street Journal report that says such a partnership could let Aereo quickly expand its footprint. Aereo has already announced plans to expand soon to 22 new markets beyond New York City where it is already available.

    Aereo’s desire for a partnership with a major ISP or TV provider is probably not related to money or infrastructure; the company has told me in the past that rolling out a new antenna farm is quick and easy. Instead,  any partnership is likely tied to deeper strategic goals. From the Wall Street Journal story:

    In one scenario that was discussed, AT&T would sell broadband or wireless data subscriptions paired with Aereo’s video service, people familiar with the matter said.

    In other words, such an arrangement with AT&T would let Aereo subscribers use the service heavily without fear of exorbitant data bills.

    Meanwhile, the talks with satellite TV-provider Dish Networks may have centered on an acquisition. Although Dish CEO Charlie Ergen said on a February investor call that Dish had no plans to buy Aereo, he added “we never say never.” Ergen has also repeatedly expressed admiration for Aereo and, unlike other incumbents in the TV industry, acknowledged the reality of consumers quitting established TV models in favor of “cord-cutting.”

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  • Authors Guild warns of monopoly in Amazon’s purchase of Goodreads

    The literary world gasped on Thursday when Amazon announced it had acquired Goodreads, a popular social networks that lets book lovers connect and share reviews with one another. The deal gives Amazon control of an influential literary taste-maker and provides it with access to wealth of new book data — a development that is not sitting well with the Authors Guild.

    “Amazon’s acquisition of Goodreads is a textbook example of how modern Internet monopolies can be built,” said Guild president Scott Turow in a statement issued on Friday. Turow claims that Amazon sought to eliminate Goodreads as a future competitor and that it has “squelched” an important source of independent discussion and reviews.

    It’s unlikely anything so dramatic will occur in the short term. As executives from Goodreads and Amazon told my colleague Laura Owen, the book network will remain for now a stand-alone site and the first goal of the merger is to “do no harm.”

    In the longer term, though, the data and marketing insight Amazon receives from Goodreads is likely to strengthen the retailer’s already powerful position in book selling. The question of whether this will lead to an Amazon “monopoly” is another matter altogether. Under American rules on vertical integration, a company breaks anti-trust laws only it obtains a dominant positions and abuses that position to harm consumers.

    Turow and the Authors Guild have already been vociferous critics of Amazon. Last year, Turow accused the company of using discounting to “destroy bookselling.” More recently, the Guild joined with the Association of American Publishers to demand that Amazon be denied control over new internet suffixes “.book” and “.author.”

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    • SEC ruling gives boost to online funding tool for startups

      The prospects of a new era of crowd-funded startups took another jump forward today as the Securities and Exchange Commission told FundersClub, a website that lists new companies seeking funding, that its business model doesn’t violate federal securities rules.

      FundersClub, which promises “insider access to pre-vetted startups,” faced legal uncertainty because it lets investors make investments as low as $1,000 in exchange for equity, even though it’s not a registered broker. Instead, the company, which is itself a start-up that grew out of the Y-Combinator incubator, holds itself out as a venture-capital adviser that does not take transaction-based commissions but instead takes management fees from accredited investors.

      To verify its legal status, FundersClub wrote the SEC to request formal validation of its business model. In a letter, reported by TechCrunch, the SEC stated that it would not pursue enforcement action against the company.

      In a significant footnote in the SEC letter, the Commission notes that FundersClub’s model is consistent with the Jobs Act, a recent law intended to make it easier for start-ups to raise money without regulatory headaches:

      The Staff notes that FundersClub’s and FC Management’s current activities appear to comply with Section 201 of the Jumpstart Our Businesses Act of2012 (“JOBS Act”) in part because they and each person associated with them receive no compensation (or the promise of future compensation) in connection with the purchase or sale of securities.

      The Jobs Act, passed a year ago, is only partially in effect as the SEC is still devising rules to facilite “crowd funding” from hundreds of small investors. FundersClub participants must still meet the definition of an “institutional investor,” which means they have an annual income of over $200,000 or a net worth of $1 million.

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    • “Recommended for you”: the fight to decide what you read next

      “Content engines” are little known to those outside the media sphere even though nearly everyone has used one – typically by clicking on a story in the “read next” or “Recommended for you” boxes that are springing up around the web. The companies, such as Outbrain and Taboola, are flush with tens of millions in investor money and are in a growing battle with each other for space on publishers’ pages.

      While content engines have been around for a while, their growing presence is influencing how readers explore the web. They are also taking on a new importance as vanguards of “native advertising,” a trend that many hope will reinvigorate the online ad economy.

      Here’s an overview of the content engine industry and what it means for publishers, advertisers and readers. (To learn more about the latest publishing strategies, be sure to attend paidContent Live, April 17 in the New York).

      Keeping readers close to home

      New York magazine uses a variety of tactics to increase visits to its website and to induce readers to stay on the site. These include boxes showing its most-popular stories as well as cross-promotion arrangements with other news sites.  New York has also recently signed on with content engine nRelate, which uses algorithms to display other stories a reader may find interesting; the stories come from New York’s own site or one of its affiliates.

      nRelate promises publishers more pageviews but also a new revenue stream as a result of “sponsored stories” it inserts in the list of recommended content – if a reader clicks on the advertiser’s “story” (typically a promotional article written like a news story) the publisher and nRelate share the money.

      Michael Silberman, the GM of digital media at New York, says he welcomes the chance for extra revenue but that the main purpose of the nRelate experiment is to get readers to stay on the site. And, like so much in publishing these days, the outcome will be data driven. “We’ll do A/B testing to see if there’s an overall lift. If all it does is redirect traffic we would have had anyways, it’s not worth it. If it leads to more pageviews per visit, then yes,” said Silberman, adding that publishers have to take care that tools like nRelate don’t clutter or slow down the site.

      Tools like nRelate promise more money or traffic but they also represent a growing strategic importance for publishers. The reason is that, in age of the social media, fewer and fewer readers arrive at a website directly through a publisher’s home page; this means that publishers are doing more than ever to persuade them to stick around.

      “We find [Outbrain] quite useful as a tool to drive traffic to our sites and circulate traffic through our sites.  The numbers suggest that our users Breaking Media screenshotfind it useful as well,” said John Lerner, CEO of Breaking Media, which owns sites like Above the Law. (see screenshot at right). He did not provide specific numbers.

      Meanwhile, the content engines are also a source of money. Joshua Albertson, the President of Curbed Media, says in a good year, they can bring in six figures of revenue through its sites Curbed, Eater and Racked.

      Rivals collide on a new advertising frontier

      While tools like nRelate hold promise for publishers, they’re also being pitched as a way for advertisers to break through to readers who tune out conventional online ads. The idea is that, by packaging the ad as a story to “read next,” a reader is far more likely to click on it and digest the marketing message.

      This ad format – call it “native advertising” or “content marketing” or whatever you wish – has produced a growing list of companies that want to serve up sponsored stories. The biggest of these is Outbrain, which has already received $64 million in funding and claims to be on more than 90,000 blogs and websites like Slate, whose editor, David Plotz, says he has been pleased with the three-year partnership.

      “We’ve been really happy with it. We needed to provide related links and Outbrain combines it with a tool that makes quite a lot of money for us.”

      Outbrain’s hold on the market is far from firm, however, as competitors have been peeling away some of its clients. According to Curbed’s Albertson, the company decided to switch after it found Outbrain’s performance declining and rival Taboola offered it a bigger share of advertising revenue. Here is a screenshot of Taboola, which serves both stories and video and recently received $15 million in new funding:

      Taboola screenshot

      As the rivals move in, Outbrain has begun slapping its logo on its boxes of recommended stories in an effort to be seen as a brand. It also recently fired a quarter of its advertising clients because of the poor quality of their story content. The company explained the decision this way:

      “If companies coming into this space are not respectful of the audience who are clicking on these links, then the user trust will decline over time. That means this space — which is currently so valuable to the audience and publisher — will be just like the the display ad market. People will become ‘content link blind,’ just like they became ‘banner blind.’”

      Meanwhile, other companies are pivoting from their core business to get into the content engine game too. These include dictionary company Reverb, which believes its experience with syntax will make it good at finding content, and the commenting platform, Disqus.

      In an interview, Disqus CEO Daniel Ha said the company has an advantage due to its existing relationship with thousands of publishers, and the ability to offer brands a way to reach hyper-engaged comment communities. Ha added that the Disqus strategy is based on the “independent web” and “the middle-tail of websites,” pointing to examples like a Toronto Maple Leafs fan forum and coupon site Southern Savers.

      A boom or a bubble?

      Content engines may be a hot topic but is there enough money and web real estate to go around? Neil Mody, the CEO of nRelate, says there is not. “There’s a classic network effect. You’ll get one big winner. Numbers two through five will do OK. Numbers 6 thru 20 will go niche or fail.”

      Mody says there is already evidence of a coming shakeout. He claims some content engines are paying publishers to get on their sites even though they have no ad revenue. He also says the industry is over-capitalized and that there is risk of a backlash as some content engines flood the space with junky “lose your belly” type of articles.

      Another challenge for content engines is the low cost of switching for publishers. The engines are built so that it’s easy for publishers to put them up, but also take them down — a situation that doesn’t favor long-term relationships. The result is that publishers can simply sign up with whomever offers the best content or most money. This means the winner is likely to be content engine with the best algorithms and the highest quality advertisements.

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    • Google donates patents to protect cloud software from lawsuits

      Google unveiled a “patent pledge” that it hopes will shield cloud software and big data developers from the type of litigation that has engulfed the mobile phone industry. The pledge, which is like a non-aggression pact, covers ten patents related to Google’s MapReduce technology.

      The pledge, which Google announced on Thursday, says that developers are free to use or sell the technology described in the patents without fear of future lawsuits. The shield applies, however, only to projects based on open source software that is available to all.

      Google’s patent pledge appears intended to complement the open-source software licenses that allow programmers to build on each other’s work. Such licenses, like the GNU General Public License, grant anyone the right under copyright law to use designated blocks of software code; these rights, however, can be undercut by competing patent rights.

      The ten patents included in Google’s pledge include a controversial one issued last year that covers a form of parallel processing known as MapReduce. The patent gave rise to fears that Google would be able to monopolize tools like Hadoop, which is an integral part of the so-called “big data” revolution that is fueling a wide range of new products and services. Google’s pledge appears intended to allay that fear.

      In a phone interview, a person from Google explained that the MapReduce patent pledge is intended to help the emerging big data and cloud software industry avoid a litigation train-wreck like the one that befell the mobile industry. (In recent years, an arms race of patents covering smartphones has led to a relentless series of global lawsuits which have limited the spread of software technology and increased prices for consumers.)

      Google suggests it will add other patents to its non-aggression pool and is inviting others to do the same. In theory, this will lead to an open and expanding workshop of tools for cloud developers; however, there is no guarantee it will work out this way.

      One problem is that the pledge will have little effect against patent trolls like Intellectual Ventures, which buy up old patents and use them to file lawsuits against productive companies. The trolls are largely immune from retaliation because they operate through shell companies and don’t actually make any products that can be the subject of a counter-suit.

      The person at Google, who did not want to identified, said the pledge may not be effective against trolls but that it may curtain the practice of “privateering” — where major companies give patents to trolls in order to harass rivals or in return for a cut of the proceeds the trolls obtain. This person said that, under the terms of the pledge, Google reserves the right to sue anyone who financially benefits from such lawsuits.

      There is also the question of whether the Google pledge is legally enforceable. Typically, promises to the world at large don’t carry any legal force because they lack what lawyers call “consideration.” The Google source, however, said those who rely on the pledge could likely prevent Google from going back on the pledge through a doctrine called “promissory estoppel.”

      In the bigger picture, the Google patent pledge represents part of a growing effort among Silicon Valley companies to rein in a patent system that many believe has become over-extended. Twitter, for instance, last year introduced an employment contract that promises its engineers that their inventions won’t be used to fuel the patent wars.

      (Image by alphaspirit via Shutterstock)

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    • Twitter ad revenues higher than expected on strong mobile numbers — report

      A research firm predicts that Twitter will earn nearly $1 billion in advertising revenue in 2014, largely on the strength of mobile ad sales. The figure exceeds the firm’s earlier predictions and reflects Twitter’s ongoing emergence as a force in mobile marketing.

      According to eMarketer, Twitter will pull in $528 million this year and $950 million in 2014 with 53 percent of that money coming from mobile ads. The firm had earlier pegged the 2014 number at $800 million.

      There are two takeaways from these figures. One is the obvious observation that Twitter is killing it, and fulfilling predictions that it will become a media and advertising behemoth. The other is that Twitter is one of the only companies to crack the mobile morass — the problem, faced by many websites, in which users are moving to mobile devices but ad dollars are not.

      Twitter is sitting pretty here because its mobile experience is highly conducive to so-called “native ad units” (sponsored or promoted tweets) that drop easily into its regular story flow. Twitter’s surging mobile numbers could also bode well for Facebook which is ramping up its own advertising efforts, and will likely expand options for marketers to drop “sponsored stories” (another type of native ad unit) into its mobile News Feed.

      The other figure that jumps out from the eMarketer report is how much of Twitter’s ad money still comes from the U.S. The firm says that the figure was 90% in 2012 and predicts it will be 83% in 2013.

      Twitter continues to hire high profile figures to drive advertising ambitions; in February, it announced the hiring of Jeffrey Graham, a Googler and former New York Times executive.

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    • Facebook’s ad tune-up: data will lead to dollars (if users stick around)

      Facebook’s approach to advertising can feel incoherent, especially when it flings random marketing messages all over a user’s page. In recent months, however, the social network has introduced tools that make its ad operation more sophisticated — and are likely to net it much more money.

      News of the latest tune-up came on Tuesday as Facebook announced it will let marketers buy “sponsored stories” in a user’s News Feed on the basis of websites that the user has previously visited. Until now, Facebook only let brands buy stories based on a user’s profile — which is created from information the user told Facebook (age, location, “Likes” and so on).

      The opportunity to use so-called “retargeting” is likely to be a hit with advertisers who regard ads based on a person’s browsing history to be especially effective and who consider Facebook’s news feed to be prime real estate. One industry executive told AdExchanger that News Feed response rates are 10 to 50 times higher than ads on the right side of the page.

      Facebook also said it will be selling the News Feed through its FBX exchange, which is like an automated real-time auction house where advertisers bid to appear on your Facebook page. Until now, the tool was only available for Facebook’s right-hand ads.

      Building an ad juggernaut

      Opening up the News Feed for retargeting is likely to yield a nice cash boost for Facebook but, in the bigger picture, the move is part of a larger story of the company’s efforts to use different forms of data to build an all-knowing ad juggernaut.

      Facebook is also, for instance, combining its own data with offline marketing information to help companies hone in on customers. As the New York Times reported, the clothing company JackThreads matched its database of two million customer emails against Facebook’s own email records — and found that two-thirds of them were on the social network. For Facebook, such opportunities are just the tip of the iceberg; the company is also working to tap into offline data on a large scale by partnering with loyalty card programs that collect drugstores and supermarket information.

      All of this means that Facebook’s advertisers will be able to draw on three powerful sources of data (browsing history, offline data and Facebook records) in order to blast ads into one of the prime locations on the web — users’ News Feeds. For Facebook investors, this prospect is especially enticing given that this model can transfer nicely to mobile devices where users are spending more and more of their time. Facebook isn’t allowing marketers to buy mobile ads on its exchange just yet, but it’s a safe bet this will happen soon.

      In short, Facebook appears well on its way to create a marketers’ paradise and a torrent of ad revenues. But there are still two factors that could scuttle these plans. The first is the familiar spectre of increased privacy regulation – but that is a threat Facebook and others like Google  have so far swatted away successfully. Instead, the larger peril may be the prospect of too much advertising undermining Facebook’s user experience and its vaunted design. As this all-ads screenshot from today shows, Facebook still has a ways to go in cleaning up an ad experience that too often remains irrelevant and ugly:

      Facebook screenshot

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    • Why Nevada’s first online gambling license is more symbol than substance

      The state of Nevada granted a first-of-its-kind license to a U.K. company last week to operate online poker games in the state. The move will help return internet gambling to American shores but, according to a gaming insider, the value of the license is, for now, closer to a pair of deuces than a royal flush.

      The news, in case you missed it, came last Friday when a company called 888 confirmed it will begin operating online poker games as soon as May alongside established casinos like Treasure Island and Caesars. The move comes in response to the federal government’s decision in 2011 that online gambling is no longer illegal if states explicitly permit it; Nevada, New Jersey and Delaware have so far passed laws to allow it.

      So why is the 888 news not a big deal? According to a source who works in the gambling industry, 888′s opportunity comes with two major strings attached: it is limited to players physically in the state of Nevada and it only covers poker. The second condition is important because poker depends on player liquidity, which means it is less lucrative for the house than games like roulette or slots.

      The source, who did not want to be identified, added that the online gambling industry is focusing instead on developments in New Jersey which has a much larger population (8.8M versus 2.7M in Nevada) and where the state law permits all casino floor games, not just poker.

      In the bigger picture, even New Jersey is unlikely to be a game changer given that online gaming companies still have to cater to players on a state by state basis.

      “It’s like taking the stock exchange and dividing it by 50. You have to ring fence players, and then account for whether the legal age is 18 or 21,” said the source, adding that the industry is crossing their fingers for a big state to come on board. “If Texas or California falls, that would be a more interesting thing.”

      The online gaming industry, which was chased out of the United States in 2006, is also hoping for a bigger breakthrough in the form of new federal legislation that would establish unified rules and protocols across the country.

      The outcome is important because potentially hundreds of millions of dollars are at stake for online gaming giants like Bwin that currently operate in Britain and elsewhere, and for fading social gaming sites like Zynga that are desperate for a new revenue stream. Finally, casino centers like Atlantic City are desperate to get a piece of the online action to make up for business they’ve lost to other states and venues.

      (Image by  Doug Stevensvia Shutterstock)

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    • New York Times closes another loophole in its digital paywall

      Look out media cheapskates — the New York Times is losing patience with your skinflint ways. After imposing a so-called “metered paywall” last year to restrict how many articles non-subscribers may read for free, the Times is clamping down on popular tricks to get around the wall.

      The latest casualty is NYClean, a bookmarklet that lets readers zap away “over the limit” messages that appears in front of Times stories. I discovered the change on Monday when, after having reached my monthly quota of 10 free stories, I tried and failed to use NYClean to read another story. The tool (see the arrow) zapped the message for a second but then the message came right back:

      NYT paywal

      This is the second time in as many months that the Times has shut down a trick to evade its meter; in February, readers discovered they could no longer access a blocked story by chopping off the end of the article’s website address. Times spokesperson, Eileen Murphy, explained the situation this way:

      “As we have said from the time we launched our digital subscription model, we are aware of various loopholes to access our content beyond the allotted number of articles each month. It remains a priority for us to protect the value of our content so we will continue to make adjustments to optimize the gateway through technical security solutions.”

      The new restrictions come at a time of increased acceptance of metered paywalls. In recent months, popular blogger (and paidContent Live guest) Andrew Sullivan introduced a meter — now at $1.99 a month — while longtime paywall holdout, the Washington Post, said it will introduce one this summer.

      The Times‘ get-tough measures create dilemmas for readers like me who are running out of workarounds. I like the New York  Times but, since I already pay hundreds of dollars a year for a Wall Street Journal subscription, I am not in position to shell out full fare for a second paper. Perhaps the Times will introduce a grazing option (say 50 articles for $5) or introduce paywall partnerships across publications.

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    • BuzzFeed courts Brits with new UK homepage, London launch

      BuzzFeed hopes its viral cat fare can go toe-to-toe with Britain’s own raucous tabloid culture. On Monday, the fast-growing American news site formally launched a customized, UK-version of its homepage, which will feature content like “43 things British people know to be true” alongside sponsored stories that promote UK brands and events.

      Never one for understatement, BuzzFeed is promoting the launch with a London event and an animated flyer that shows Queen Elizabeth II riding a tweaked-out corgi dog against a Doctor Who style background:

      BuzzFeed UK ad screenshot

      This is BuzzFeed’s first international expansion and comes after it received nearly $20 million in new funding early this year. According to editorial director, Scott Lamb, the UK site will start by offering “great pop culture content” that represents BuzzFeed’s roots. He explained the strategic goal this way:

      “Social is global. We already had a solid audience in the UK, a place that embraces Twitter and Facebook in a huge way, so it made sense for it to be BuzzFeed’s first foray into international waters.” A report from the Next Web says the UK content will come from a four-person team based in London. Meanwhile, a BuzzFeed spokesperson told us that the largest proportion of BuzzFeed’s overall traffic was coming from the UK early Monday morning.

      BuzzFeed’s expansion comes at a time when UK and US press outlets are increasingly entering each other’s markets; Britain’s the Daily Mail and the Guardian, for instance, are making a concerted effort for American readers.

      BuzzFeed also appears to have brought its trademark native advertising across the pond in the form of “stories” like “15 Kinds of People You Will See at Ultra,” a photo-feature produced by an energy drink maker. BuzzFeed founder Jonah Peretti has long argued that this form of advertising, which can be distributed across social media, is more effective than traditional internet display advertising.

      As it dips its toe into Britain, BuzzFeed is also expanding aggressively at home with more long-form content and plans for a business vertical.

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    • AP wins big: Why a court said clipping content is not fair use

      A federal court has sided with the Associated Press and the New York Times in a closely-watched case involving a company that scraped news content from the internet without paying for it.

      The case has important implications for the news industry and for the ongoing debate about counts as “fair use” under copyright law. Here’s a plain English explanation of what the case is all about and what it means for content creators and free speech.

      Fair use or a free ride? The facts of the case

      The defendant in the case is Norway-based Meltwater, a service that monitors the internet for news about its clients. Its clients, which include companies and governments, pay thousands of dollars a year to receive news alerts and to search Meltwater’s database.

      Meltwater sends its alerts to client in the form of newsletters than include stories from AP and other sources. Meltwater’s reports include headlines, the first part of the story known as the “lede,” and the sentence in the story in which a relevant keyword first appears. The Associated Press demanded Meltwater buy a license to distribute the story excerpts and, when the service refused, the AP sued it for copyright infringement.

      Meltwater responded by saying it can use the stories under copyright’s “fair use” rules, which creates an exception for certain activities. Specifically, Meltwater said its activities are akin to a search engine — in the same way that it’s fair use for Google to show headlines and snippets of text in its search results, Meltwater said it’s fair use to clip and display news stories.

      The case has divided the tech and publishing communities. The influential Electronic Frontier Foundation filed in support of Meltwater, arguing that AP could inhibit innovation and free expression if it succeeds with the copyright claim. On the other side, the New York Times and other news outlets filed to support the AP; they claim Meltwater was simply free-riding and that the company is undermining the ability to create the sort of journalism on which a free society depends.

      A clean win for the AP

      In a decision published Thursday in New York, U.S. District Judge Denise Cote shot down Meltwater in blunt language. While much of the 90-page ruling covers procedural issues and other defenses put forth by Meltwater, the heart of the decision is about fair use.

      To decide if something is fair use, courts apply a four-part test that turns in large part on whether the defendant is using the copyrighted work for something new or unrelated to its original purpose. Famous examples of fair use include a parody rap song of “Pretty Woman” and Google’s display of thumb-size pictures in its image search. In the AP case, however, Meltwater’s fair use defense failed.

      Judge Cote rejected the fair use claim in large part because she didn’t buy Meltwater’s claim that it’s a “search engine” that makes transformative use of the AP’s content. Instead, Cote concluded that Meltwater is more like a business rival to AP: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”

      Cote’s rejection of Meltwater’s search engine argument was based in part on the “click-through” rate of its stories. Whereas Google News users clicked through to 56 percent of excerpted stories, the equivalent rate for Meltwater was 0.08 percent, according to figures cited in the judgment. Cote’s point was that Meltwater’s service doesn’t provide people with a means to discover the AP’s stories (like a search engine) — but instead is a way to replace them.

      The judgement also points to the amount of content that Meltwater replicated. Whereas fair use allows anyone to reproduce a headline and snippets, Cote suggested Meltwater took “the heart” of the copyrighted work by also reproducing the “lede” and other sentences:

      “A lede is a sentence that takes significant journalistic skill to craft.  [It shows] the creativity and therefore protected expression involved with writing a lede and the skill required to tweak a reader’s interest.”

      The ruling added that Meltwater had taken more of the story than was necessary for a search engine and that its economic harm to AP also weighed against finding fair use. And, in a line that likely had news agencies clicking their heels, the judge wrote:

      Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression […] Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.

      These are what I regard as just some of the most important points of a very long decision. You can read it for yourself below; I have underlined key passages.

      Common sense or a chill on free expression?

      The decision has already caused concern on the part of internet freedom advocates. Techdirt’s Mike Masnick, for instance, says the ruling has “a ton of problems” and that Cote misapplied the four-part fair use test.

      Meanwhile, the company has vowed to appeal and and its CEO claims to be “especially troubled by the implications of this decision for other search engines and services that have long relied on the fair use principles for which Meltwater is fighting.”

      Meltwater is likely to face an uphill battle on appeal, however. Cote’s ruling is exhaustive and the Second Circuit Court of Appeals is regarded by many lawyers as sympathetic to the hometown publishing community.

      The impact of the ruling, however, will be determined by how far it ripples beyond Meltwater. As all of the companies’ competitors have already paid AP for a license, the impact could be insignificant for everyone but Meltwater while, at the same time, boosting the AP’s resources for gathering news.

      On the other hand, the ruling could embolden the AP and other news outlets to file more lawsuits. While this could bring more licensing revenue for journalism, it may also produce a phenomenon like what is occurring in France and Germany where publishers are treating copyright like a tax to protect outdated industries — and chilling online innovation in the process.

      Meltwater AP Ruling

      (Image by Pixelbliss via Shutterstock)

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    • Google’s Motorola wins patent for octagon smartphone shape

      If you thought the era of silly shape patents was over, don’t hold your breath. Months after Apple used a patent for rounded rectangles to chase away iPad competitors, Motorola has received a patent for an eight-sided cellphone design.

      The Patent Office approved the new “invention” this week and the news was first reported on Twitter by Professor Sarah Burstein:

      Burstein, who is a design patent expert at the University of Oklahoma, explained that her “rounded octagon” comment was tongue-in-cheek but confirmed that the patent had been granted and that it covers the displayed shape of a smartphone.

      She added that the scope of Motorola’s design patent is more narrow than Apple’s infamous rounded rectangles patent. Here is a picture from Apple’s patent:

      Rounded rectangles screenshot

      To successfully invoke its new patent against an infringer, Burstein said Motorola would have to show that a consumer would find the supposedly infringing product has the same design as Motorola’s design.

      The “rounded octagon” patent is likely to add more grist for critics who question the wisdom of granting monopoly protection over basic shapes and concepts (14 years for design patents, 20 for regular ones). This year, a new law in the U.S. has made it easier to obtain design patents, which are cheaper and faster to get than regular patents. Meanwhile, companies like Apple continue to use a variety of other intellectual property measures like trademark, trade dress and copyright to wrap legal force fields around their products.

      The new patent may provide new ammunition to Google, which owns Motorola, in its ceaseless rounds of patent litigation with Apple and other rivals in courtrooms around the world.

      The patent can be seen at the United States Patent and Trademark Office. Unfortunately, the USPTO’s website only permits images to be viewed with Internet Explorer, Netscape or Opera browsers. If you’re using another browser, here’s a PDF link.

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    • How a toothbrush news site can get more visits than the Economist: More on the botnet scam

      A larger picture is emerging about an online advertising scam that is reportedly soaking major brands like McDonald’s and Disney for $6 million a month. The scam, which has rattled publishers and the ad industry, came to light on Tuesday after a London analytics firm revealed that a network of zombie computers tricked the brands into paying to show their ads to robots.

      It has also resulted in “toothbrushing.net,” a little-known site with oral hygiene news, likely racking up more visitors than famous publishers like The Economist.

      Here are some more details, based on sources close to the investigation and other reports, about who is affected  and the scale of the botnet.

      Millions of “readers” for a toothbrush news site

      The “about” section of Toothbrushing.net says the site is dedicated to “toothbrush enthusiasts” and promises the “latest on dental news.” According to a source, the site is displaying 20 million to 25 million ad impressions a month. Since the site shows four ad slots on every webpage, this loosely translates to at least 5 million visitors. Nearly all of these visitors were bots not people but, for marketers, the effect is the same — they pay either way. (The ad slots were empty when I checked today  – see the screenshot Toothbrush siteat right).

      To put the traffic of the toothbrush news site in perspective, consider that a site like the Economist had 1.7 million unique visitors in December and the New Yorker had 3.1 million. These figures refer to unique visitors so it’s not an apples-to-apples comparison but, using this crude calculation, there’s a good chance Toothbrushing.net did better than both of them.

      And it’s not just the toothbrush site. Other obscure sites touched by the bot network, including Sodabottle.com and Techrockstar.com, likewise served up 20 million to 25 million ads in a month. According to Spider, the analytics firm that discovered the scam, there are at least 202 such sites tied to the bot network. Nearly all consist of little more than a smattering of cheap content you could pay a high-school student to write.

      There is also the egregious example of Directorslive.com, an obscure movie site that AdWeek reports enjoys 326 million monthly pageviews. According to a source, the only site on the web to sell more ad impressions is Facebook.

      Who is affected and who is responsible

      The list of advertisers that paid to appear on botnet sites include dozens of major brands, and cover a wide range of sectors such as: retail (Snickers, Ziploc, Petco); finance (Citi, Chase, Amex); telecom (AT&T, Time Warner, Sprint); automotive: (Dodge, Ford, Jaguar); services (Zipcar, Seamless).

      While advertisers are the direct victims of the botnet, major web publishers are also harmed because marketers lose confidence in the integrity of display advertising and prices drop accordingly.

      So who is to blame? An advertising source provided six ad networks it regarded as among those it believed to be “problematic” because their sites received significant traffic from the botnet. Here are their names along with an example of a suspect websites they control:  Alphabird (Driverswhoknow.com); Digimogul (USBuildingDigest.com); Forward Health (Womenshealthbase.com); Precision Media (Toothbrushing.net); HiFi network (Dailyfreshies.com); Relevad Corporation (FFog.net).

      The CEO of Digimogul told AdWeek that allegations of a connection to the bot network were “silly” and that “everything is by the book.” Meanwhile, executives from Alphabird told me that they were surprised by the discovery of the botnet and that they’re working with the London analytics firm to get to the bottom of it.
      I asked the COO of Alphabird, Justin Manes, how a company staffed by a sophisticated technology and marketing team could possibly remain unaware of the suspicious traffic — especially when the traffic delivered a direct financial benefit to them. Manes responded that Alpahbird works with numerous aggregators to buy website visitors and that the corrupted traffic must have slipped in this way; he also declined to say where the company bought the traffic. As for the company’s prospects in light of the botnet scandal, Manes said he hopes that people will come to see Alphaird was duped too; he also hopes the experience will strengthen the company’s ability to sell tagging and tracking tools in the future.

      Fixing the problem: better tools or law enforcement?

      The existence of a bot network that hijacks thousands of American computers to perpetrate millions of dollars in fraud appears to be a serious matter. But is it serious enough for a criminal investigation?

      I called the Cyber-Crimes division of the FBI to ask if it is investigated this type of activity. A spokesperson provided this response:

      “While I cannot comment about the botnet you’re writing about, the FBI’s Cyber Division does investigate botnets. We have had operational successes disrupting botnets used by individuals as well as groups that use malicious advertising as part of their schemes.” The spokesperson also referred to a 2011 investigation known as “Operation Ghostclick” in which the FBI arrested six people for using computers to manipulate the online ad industry.

      It’s unclear at this point if the discovery of the new botnet will lead to any criminal investigations. In the meantime, brands and publishers will likely look to self-help solutions to weed out the fraud. There is some encouraging news on this front, as metrics companies like comScore are developing measurement tools to identify and screen-out what the company calls “non-human traffic.”

      (Image by qvist via Shutterstock)

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    • Forget FICO: how data is changing the rules of credit and underwriting

      Until the mid-20th century, a banker’s decision to lend money was based in large part on intuition and relationships. This changed dramatically with the creation of the FICO score — a single metric to decide if anyone was worthy of credit or not.

      Today, the FICO score is starting to show its age. This is apparent from a new breed of financier who is capable of tapping thousands of  data sources to make more personal decisions, and who can offer credit in ways that traditional lenders do not. One example is ZestFinance, a new style of underwriting company that uses 70,000 data signals and ten parallel machine learning algorithms to assess personal loans.

      Speaking at GigaOM’s Structure Data conference in New York, CEO Douglas Merrill explained that ZestFinance employs a host of untraditional signals — such as whether or not a would-be borrower has read a letter on its website — to determine if someone is credit-worthy.

      The company’s tools have also allowed it to make a lively business from “dead” people. These are borrowers who banks believe are deceased on the basis of their FICO score. According to Merrill, these dead make up 10% of ZestFinance’s customer base and their rate of repayment is better than that of the living.

      Small business lenders are also making use of non-traditional credit signals. The lending firm Kabbage, for instance, taps into data like a company’s UPS activity to assess their financial health — everything from the volume of shipping to the size of the parcels provide signals about how a firm is doing.

      CEO Robert Frohwein, who also spoke at the GigaOM event,  said traditional banks simply do not seek out such signals in the first place, meaning they must rely on a much cruder set of metrics when they evaluate loans.

      The extra data signals lead to more successful lending rates and are also making credit more affordable and available than it was before. ZestFinance, for instance, provides the 60 million American who use payday loan companies an alternative to high balloon payment fees. Meanwhile, Kabbage is offering more loans than banks to internet-based businesses and to companies whose executives do not match corporate stereotypes.

      Check out the rest of our Structure:Data 2013 live coverage here, and a video embed of the entire session follows below:


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    • Supreme Court sides with bookseller in major copyright ruling, says resale is ok

      In a court ruling that has major implications for used good merchants across the country, the Supreme Court overturned a lower court decision that forbid a textbook seller from reselling textbooks that he had purchased from overseas.

      In a 6-3 ruling, the court rejected publisher John Wiley’s interpretation of a rule known as the “first sale doctrine” which prevents copyright owners from exerting rights over a product once it has been purchased legally. This rule is what allows used book and music stores to sell used items with the copyright owners permission.

      In recent years, copyright owners facing a wave of imported good have argued that the “first sale” only applies to goods manufactured in the United States. Lower courts have till now sided with the copyright owners which has produced considerable uncertainty about whether or not retailers good import and sells goods that they had legally bought from abroad.

      Writing for the majority, Justice Stephen Breyer rejected John Wiley’s argument that the phrase “lawfully made under this act” implied a geographic limitation. He also referred to library associations, used-book dealers, technology companies, consumer-goods retailers, and museums — all of which had urged the court to reject the restricted notion of “first sale.”

      The ruling is likely to be a relief for used booksellers and others who feared that geographical limits on first sale would harm their business. In the case before the Supreme Court, the defendant was a college student who had arranged for his family in Asia to buy textbooks and mail them to him in America where he sold them at a profit.

      Justices Ginsburg, Kennedy and Scalia dissented from the ruling.

      More soon.

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    • Massive bot network is draining $6 million a month from online ad industry, says report

      A London analytics firm says it has identified a bot network that is tricking marketers into showing billions of ads every month to phantom visitors. The botnet reportedly relies on more than 120,000 infected Windows computers located in the U.S., and appears to represent a sophisticated scheme to defraud the advertising industry.

      The findings were announced on Tuesday by Spider.io, a firm that specializes in detecting abnormal internet traffic. Spider says it has identified at least 202 websites where the vast majority of visitors are bots rather than normal human visitors, and that that every major brand engaged in automated ad buying has been paying to shows ads to the bots.

      Bot networks, which are a collection of virus-infected computers controlled from afar, are not new and have long been used by hackers for malicious activities like password theft or espionage. In this case, however, Spider says this the first time a bot networks has been deployed specifically to target display ads for which unwitting companies have paid.

      Working with media technology companies, including Boston-based DataXu, Spider studied traffic patterns and ad activity at numerous websites. Spider, DataXu and ad industry executives from two other companies who did not want to be named explained the motives and tactics of the botnet.

      High-tech ad tricks

      The world of “ad tech,” where companies use automated platforms to buy and sell ads in real time, is highly complex. It involves massive online exchanges in which publishers invite marketers to bid on their web real estate; the publishers — and various middlemen — get paid whenever an ad is seen or, in some cases, clicked upon.

      While the exchanges create a more efficient market, they also make it easier for dishonest participants to enter the ad stream. Since marketers buy millions or billions of ad impressions at a time, it can be hard to verify if the ads appear before real people or in front of bots. As described in a Tuesday AdWeek piece, the ad exchange economy has given rise to “ghost sites” that appear to be normal websites but that may actually be vectors for fraudulent traffic.

      According to an ad executive familiar with the Spider investigation, the 202 “ghost sites” that it uncovered include ones that sound like everyday health or consumer sites, like onlinesportskit.com and superstar-gossip.com; many of the sites, which contain a smattering of bare bones news stories, are owned by an ad network (a service that federates ad sales) called AlphaBird. The executive added that, in some cases, the site owners may be unaware of the suspicious activities on the site but that they would at least be aware of the surge in traffic. We’ve reached out to AlphaBird for comment and will update when we hear back.

      So how precisely do the bots make money? According to the executive, the scheme is likely based around “re-targeted” ads, which are display ads that show up based on sites a user has visited already. For instance, a department store’s website may place a cookie on a user’s browser in order to show her an ad for a sale while she is looking at an unrelated travel site later on. In the case of the botnet, a bot will first visit the store site in order to trick the store into paying for an ad when the bot later goes on to visit a ghost site.

      Finding the bots

      In its article describing the botnet, Spider says it has been observing anomalous traffic patterns since last December. It says the individual bots that make up the network act like real internet users but that together they look suspicious: Despite the sophistication of each individual bot at the micro level, the traffic generated by the botnet in aggregate is highly homogenous. All the bot browsers report themselves as being Internet Explorer 9.0 running on Windows 7. The bots visit the same set of websites, with little variation.

      Spider, which compares the botnet it found to large-scale botnets that Microsoft took down in February, also has created infographics, comparing regular traffic and bot traffic side by side:

      BotnetEngagement by spider

      Botnet graphic

      Spider said the “click-through” rates for ads on the 202 sites was 0.02%, which is a normal figure for ad industry; it said the low click-through rate appeared intended to avoid drawing attention to the scam.

      Christian Carrillo, who is VP of Innovation at DataXu, said his company supplied ad data for Spider’s investigation because it wants to help “purify the value chain” of online advertising. ”The industry will benefit from efforts by companies like Spider but this is a longtime process,” said Carillo by phone. He also equated problems in online ad exchanges with earlier efforts to clean-up desktop viruses, a process that took years.

      (Image by Lukiyanova Natalia / frenta via Shutterstock)

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    • NewsCred gets new $15M investment, adds New York Times as a partner

      NewsCred has become a quiet force in media by offering brands and publishers an easy way to acquire high quality news content from brands like Bloomberg and Economist. In a further sign of its growing influence, the company on Tuesday announced a major investment that will help drive its global ambitions.

      The investment will see NewsCred receive $15 million in Series B funding led by Mayfield Fund, a prominent west coast venture capital firm. The company also revealed on Tuesday that the New York Times, which it has long courted, has signed on as one of its more than 2500 syndication partners.

      For anyone unfamiliar, NewsCred uses technology to place a stream of relevant, licensed news content onto the websites of clients like the New York Daily News and Pepsi. NewsCred shares the revenue with its publishing partners.

      CEO Shafqat Islam said in a phone interview that the new investment will allow NewsCred to grow its salesforce and expand its presence in non-English speaking markets. The plans follow NewsCred’s recent acquisition of cloud publisher DayLife and its decision to create a human editorial team to complement its algorithm-driven news service.

      “Our ambitions are global,” he said. “Our ultimate ambition is to license and curate the world’s top publications.”

      Islam said that licensing to brand clients, which also include Toyota and GE, now make up 50% of NewsCred’s business but that publishers remain the company’s core focus.

      In an email statement, a New York Times spokesperson said, “We have our own very successful syndication business, which we are continuing to grow.  This agreement with Newscred is one way we think we might be able to expand opportunities.”

      The investors taking part in the new Series B round also include Greycroft Partners whose managing partner, Alan Patricof, is a fixture of the New York media scene. NewsCred has raised $5M in previous rounds of funding from FirstMark Capital, IA Ventures, Floodgate Fund, Lerer Ventures, AOL Ventures and others.

      Disclosure: NewsCred is a publishing partner of GigaOM/paidContent

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      • “First to file” patent law starts today: what it means in plain English

        In 2011, the U.S. passed a law that changes the centuries-old way that the country hands out patents. Instead of a “first to invent” system, America will now give a patent to whoever files first. Here’s a quick summary of the law and what it means:

        Why did the law change?

        Congress decided to adopt the first-to-file system as part of a larger 2011 patent reform law known as the America Invents Act. The first-to-file system, which is used by every other country in the world, took effect on March 18.

        What does it mean for inventors?

        In the past, the Patent Office granted a patent to whoever invented it first. Now, the patent will go to whoever filed the application first.

        Isn’t that unfair?

        In the past, if someone stole your idea and obtained a patent for it, you could start an “interference proceeding” with the Patent Office. If you could show proof that you were the real inventor, the office would hand the patent to you. That won’t happen in the new system.

        So, yes, in theory the old system was more fair. But in reality, interference proceedings were very rare — one report says that in 2007, they arose in fewer than one percent of all patent applications. And, of these, the patent was given to the second-to-file a grand total of 7 times. In addition to being rare, the proceedings were also expensive: a 2005 survey said the average cost was over $650,000.

        Finally, America has a special rule that will help inventors in many cases. The rule says that if you disclose the invention at a conference or elsewhere, you have a one year grace period to file a patent for it. This means that your disclosure will prevent someone else from getting a patent on your invention (but it could also harm your chances to get patents in other countries).

        What does first-to-file mean for small inventors?

        One criticism of the U.S. patent system is that it favors big companies like Apple and Google who have the budget and the lawyers to file patent applications all day long. The new system won’t change this and could benefit the big companies even more. But, ultimately, it’s unlikely to make things much different than they are right now.

        The bigger problem with patents is that too many are being issued in the first place. This leads to companies abusing 20-year monopolies over basic technology — often with no net benefit to society.

        Where can I learn more about the first-to-file rules?

        PatentlyO has the relevant text of the statute and a detailed description of what it does here.

        Thumbnail photo courtesy Flickr user opensourceway

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      • Washington Post announces a (very leaky) paywall

        The Washington Post will charge for access to its website beginning this summer. The move, which the company announced on Monday, confirms recent rumors and ends the Post’s role as the last major newspaper holding out against paywalls.

        The Post’s paywall will be a leaky one, allowing readers to view 20 free articles a month with no limit for its home page, section front pages or classifieds. Students and teachers will have unlimited access at school, while civil servants and military personnel will have unlimited access at work. Home delivery subscribers will get a free digital subscription. The paper will also not count visits that come by way of Google or social media against a reader’s monthly quota. The Post has not yet announced how much a digital subscription will cost.

        This type of porous paywall, which aspire to nudge readers to subscribe without driving them away, is now commonplace. The New York Times, a pioneer of paywall strategies, made its paid website easily accessible at first but has since reduced the number of free articles and cut off popular workarounds.

        As Forbes notes, the imposition of a paywall (however leaky) appears to be a victory for investor Warren Buffett, an advocate of paid content, over the Graham family, which controls the paper and has historically been opposed to charging for the website.

        The Post is also experimenting with other models to raise revenue, including sponsored stories. Come hear more about how content owners are finding new ways to make money from media at paidContent Live on April 17.

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