Monday, 29 April 2013

The road to monopoly is littered with good intentions: how the EC let Google win the search war

Three years ago, European Commissioner Neelie Kroes was a ‘Prosumer Champion’, defending European Internet users from Microsoft’s abusive behaviour as the dominant European – and global -  PC operating system vendor. She forced Microsoft to permit choice of Web browser for end users, as well as search. European prosumers – those who rip, mix, burn, blog, tweet or just update their Facebook status - were saved from monopoly. Or so some thought.
The browser war over, Ms Kroes explained that she was instituting a new European Interoperability Framework to ensure that “we do not have to fight an epic antitrust battle every time we want interoperability”. The idea was to bias government policy and law towards openness, to ensure that users were not locked into proprietary standards. Interoperability would stop a world where you have to ask permission to innovate. Together with the enforced openness of networks through the Citizen Rights and Better Regulation Directives, and their accompanying Declaration of Network Neutrality, which were passed on 18 December 2009, the Teenies were to be the decade when interoperability and openness won out over corporate control and segregation. How is that working out so far?
We know that net neutrality has been abandoned as a policy by Ms Kroes personally, with pesky Netherlands and Slovenian legislators (who passed net neutrality laws in 2012) the only champions of the open Internet so far amongst the 27 member states. Microsoft for 10 months refused to allow browser choice by default in Windows 7 in 2011, resulting in a massive fine of €561m levied in March 2013, a further skirmish in the browser wars in which it had previously been fined €497m in 2007 and €860m in 2012. For a company as massive as Microsoft, a total of almost €2,000,000,000 is peanuts. Even today, Internet Explorer is the most widely used browser, though the promise of free software Firefox is gaining ground while data-harvesting Google Chrome languishes far behind, alongside walled garden enthusiasts Apple’s Safari.
Google is involved in the new war, for control not of the desktop but of our personal data. While Facebook has since 2008 outstripped MySpace in social networking, a market which has grown tenfold in 5 years, Google now dominates Internet advertising, and is extending that lead into other sectors, notably e-commerce, video advertising and mapping for location-based commerce. Extending your monopoly, hard-won with innovative products, excellent engineering, well executed alliances and fortuitous timing, into downstream product and service markets shows that Google is copying Microsoft’s strategy from the 1990s. So has the European Commission learned its lessons from the decade of Microsoft investigation and then five years of litigation? Can we achieve interoperability without an epic antitrust case? Google was first complained of in 2008 – how far have we got?
The answer is almost nowhere, though we have so far avoided an epic antitrust case because Google gave voluntary undertakings rather than being forced into a formal settlement (Article 9 not Article 7 in the legal jargon). Google has apparently agreed – subject to formal closure of the case – that it will flag up clearly when it is inserting non-neutral Google-affiliated links that appear before what you asked for – the Internet’s most popular results. That is most of the settlement – an alleged abusive monopolist will flag up where it is abusing that dominance. Does that sound like a consumer victory?
The EC has caved in on interoperability and preventing abuse of a vertical monopoly, just as it earlier did on net neutrality (almost as soon as the Commissioner recovered from her mauling by rightly suspicious Parliamentarians at her confirmation hearing in March 2010, for failing to guarantee consumer protection from network operators trying to block rival content). Why has it caved in? To avoid a fight, and because Google achieved an even more overwhelming victory in the United States, gifted to it in January this year by Obama’s outgoing first term appointed Federal Trade Commissioners in the wake of the 2012 general election, that multi-billion dollar lobbyist festival of political backscratching sand backsliding.
Why does the European Commission want to achieve that Pyrrhic victory without a fight? It is in partly political – Google is seen as a greater innovator than the copyright and patent maximalist European corporates, so European defeat for Google on these grounds would threaten the home teams too. This betrays the Commission’s shaky grasp of digital innovation, unless one attributes darker motives to their support for big corporates over smaller true innovators and creators, not to mention prosumers. The political also figures in the need to be seen to be besting the US regulator, in a piece of pure theatre, Google pretending to feel the pain of the EC solution, and US commentators pretending to be outraged at EC interference. Even worse, the suggestion is that Commissioner Almunia wants his part in history not only as a member of Barroso’s austerity Commission, but as the quasi-regulator of Google, yet without extracting a binding settlement or any settlement at all outside the European Economic Area.
But the argument also goes to law and economics, and a view of regulating software code. How can Google discriminate? Because it writes both the best algorithms for searching across the Internet for most popular – i.e. most linked – pages, and also because it intersperses these with its own links, to its affiliated e-commerce or features such as maps. The former is what we can call its neutral public service function, which is why it became the search leader. The latter is its attempt to extract economic rents form users based on its neutral search reputation. Think of it as the distance between BBC and BBC World, its more commercial arm. The difference is that Google has no rules separating its two functions, and no requirement to be neutral, nor auditing of that neutrality.
As prosumers, we “believe” that its code (i.e. search result) is neutral, not because it used to claim a decade ago to “not be evil” before its legal obligation became that of maximising publicly traded shareholder returns. No, we “believe” because we have no option. It is the Sky Electronic Programme Guide without even the minimal regulation that European law imposes on Sky. If it is to become neutral, we need to take seriously that public service function.
That is the challenge for the new Commission in its ‘Europe2020’ agenda, to create an environment in which we prosumers are able to trust our famously lucrative eyeballs, and content provided as neutral is demonstrated to be that – to the advantage of advertisers (who would have a more transparent view of trusted providers and their audiences) and the poor bloody infantry, the prosumer, whether small business, sole trader, eBay buyer or web surfer.
Professor Chris Marsden is Law Professor at the University of Sussex and author, with Ian Brown (Oxford) of Regulating Code (MIT Press, 2013).

Friday, 26 April 2013

Google's New European "Antitrust" Search Results: Here's What They'll Look Like

Google's New European "Antitrust" Search Results: Here's What They'll Look Like: "There are three basic scenarios: where Google sees direct monetization from the SERP, indirect monetization in the vertical or no monetization (e.g., News in Europe). In each case the presentation and the rules will be slightly different. The screens below are all mock-ups that have been supplied to the EU by Google as part of the formal settlement proposal. The image immediately below reflects what the new page will look like in a situation where sponsored results appear in the SERP (e.g., product listing ads). The current label “sponsored” is expanded to include “Google Shopping results.” This is intended to clearly indicate these results are from Google." 'via Blog this'

Thursday, 25 April 2013

Nudge as fudge: Bogus gov online test tells people on dole they're just SO employable

Bogus gov online test tells people on dole they're just SO employable • The Register: "The psychometric test in question is supposedly designed to assess an unemployed person’s “signature strengths”. However, it was actually primed to give nothing but positive statements regarding the user's employability, regardless of whether any information was input at all.
Apparently inspired by the writings of Martin Seligman - the prof whose work in torturing dogs with electric shocks later influenced development of American "enhanced interrogation techniques" such as waterboarding in the War On Terror - the DWP's new test was initially used to assess the personalities of dole claimants in Loughton, Essex. Now, however, it appears to be being used across the country.
The programme was created by the government's Behavioural Insights Team (also known as the "nudge unit") - a shadowy and ever-so-slightly ludicrous Cabinet Office department which uses behavioural economics and psychological techniques to create a supposedly better society." 'via Blog this'

Saturday, 20 April 2013

Google's collision course with member states / Opinion / Google's collision course with member states: "If, in the wake of the most recent meetings and investigations announcement, Google maintains its unwillingness to modify fundamental provisions of its privacy policy in response to the Working Group’s concerns, it seems likely that at least some member states, including some or all of the five identified as opening their own investigations, will take enforcement action against the company.
The regulators have issued so many warnings to Google, and the issues raised are so integral to how Europeans view their fundamental human rights, that it is difficult to see how the EU regulators can back down. They likely will calculate – reasonably – that failure to act now will encourage similar actions by numerous other companies and strike a blow to meaningful deterrence of future privacy violations." 'via Blog this'

Rivals smart after Almunia plays it safe in Google case

Rivals smart after EU plays it safe in Google case | Reuters: "ICOMP lawyer David Wood, referring to the documents, stated: "There is no reason to think why an Article 7 would not be more effective and quicker than an Article 9, even now." Critics may still demand a more extensive investigation into Google and time may not be on Almunia's side. "The Commissioner's mandate expires somewhere in the fall of 2014. Under an Article 7 procedure, he might no longer (be) ... in office to sign the prohibition decision," Petit said. "In short, to put the Google case on his hunt list, Almunia needed a settlement."" 'via Blog this'

Thursday, 18 April 2013

Monday, 15 April 2013

Google’s EU battles far from over

“Some labels would be likely to be ineffective or even affirmatively harmful,” warned Ben Edelman, an associate professor at Harvard University who has been a long-time critic of Google’s practices. Labelling a result as a “Google result” would suggest “that a given link is better or more official than the others”.
Another Google adversary, who declined to be named, complained: “This plays straight into Google’s hands. This is exactly where they were already headed (emphasis added - ed.), reducing the number of ‘natural’ search results and revving up their own results – advertising, effectively.”

Opposition to the proposed settlement is set to harden in the coming weeks as the commission subjects it to a “market test” that would allow rivals to present their views. Mr Wood said the process was approaching the stage where the legal rights of the third parties “crystallise”.
In the next phase, Google’s rivals will also have access to a version of the commission’s preliminary findings from its probe, giving them more ammunition as they push the regulators for reasons why issues raised in their formal complaints were rejected. “We are very, very far from the end of how this is going to turn out,” said Mr Wood.

Saturday, 13 April 2013

Regulating Code seminars: Oxford 26 April and Cambridge 9 May

Here are the details of our joint Brown-Marsden productions coming up in Oxford, at the Oxford Internet Institute, 4pm on 26 April, and Cambridge, at the Centre for Intellectual Property and Information Law, 5pm on 9 May. Both events will be followed by a chance to interact with the authors (Eagle&Child and The Castle respectively).

Wednesday, 3 April 2013

Google Privacy Policy Enforcement

Google Privacy Policy Enforcement: "On 19 March 2013, representatives of Google Inc. were invited at their request to meet with the taskforce led by the CNIL and composed of the data protection authorities of France, Germany, Italy, the Netherlands, Spain, and the UK. According to the CNIL, the lead investigative authority, no change has been seen.
The CNIL press release states that the Article 29 Working Party's analysis is now said to be finalized : 'It is now up to each national data protection authority to carry out further investigations according to the provisions of its national law transposing European legislation.'
The consequnce is that all the authorities composing the taskforce launched actions on 2 April 2013 on the basis of the provisions laid down in their respective national legislation (investigations, inspections, etc.)" 'via Blog this'

EU Copyright Dialogue: The Great Sham(e) - Conclusion

EU Copyright Dialogue: The Great Sham(e) - Open Enterprise: "That the copyright industries should cling to this retrogressive approach is no surprise - it's what they've done at every turn for the last fifteen years or more. That the European Commission still hasn't learned its lesson from the street demonstrations against ACTA last year, and tries to shore up decrepit intellectual monopolies to the disadvantage of the 500 million citizens of Europe it supposedly serves, is not just extraordinary, but truly shameful." 'via Blog this'

EU Copyright Dialogue: The Great Sham(e)

EU Copyright Dialogue: The Great Sham(e) - Open Enterprise: "the "dialogue" was nothing of the kind, but a regurgitation of the failed solutions that have been tried for the last decade or more. It is beyond ironic, then, that according to one report on the session, when people tried to raise key issues like "fair use", this was batted away with the contemptuous comment "fair use is from the 20th century."
And when the crucially important topic of "exceptions" - situations where users do not require licences to use copyright material - was discussed, the massed ranks of the copyright industries seemed offended something so distasteful had even been mentioned. Luckily, the session's moderator extinguished this errant train of thought immediately so as to protect the delicate sensibilities of the maximalists who hate having to consider the idea that copyright ought to be fair and balanced." 'via Blog this'

The Great IPRED Consultation Fiasco - Open Enterprise

The Great IPRED Consultation Fiasco - Open Enterprise: "This flows from the totally biased way the consultation has been framed: it's clearly aimed at holders of intellectual monopolies who want to enforce them more strongly. The idea that the public might have a right to express its views clearly never entered the European Commission's collective head. That the public might - heaven forfend - even be against more punitive punishments for those dreadful "notorious infringers" was clearly inconceivable.
Apparently, I'm not the only one who finds the IPRED consultation awful; for example, Monica Horten calls it "seriously problematic" - a rather restrained comment, I think." 'via Blog this'

Tuesday, 2 April 2013

rage against the machine -

rage against the machine - / current issue: "Solutionism is a term Morozov borrowed from architecture and urban planning. It refers to the ideology that urges us to seek simple and often single solutions to complex problems. Within architecture, the idea refers to the tendency or desire to build grand structures like freeway overpasses or enormous towers in the middle of cities—monuments to what one can build, rather than well-designed approaches to the complexities of urban life.
It’s also intellectual bad faith. Morozov writes that “solutionism presumes rather than investigates the problems that it is trying to solve, reaching ‘for the answer before the questions have been fully asked.’”" 'via Blog this'

KU Leuven LICT - Ian Brown to present 'Regulating Code' 11 April

KU Leuven LICT: "Event Title: "Regulating Code" by IAN BROWN When: 11.04.2013 14.00 h - 15.30 h" 'via Blog this'

Marsden to present 'Regulating Code' at Internet Science Conference, Brussels 11 April

About | Internet Science Conference: "Find out more about the EINS Network for Excellence in Internet Science research project" 'via Blog this'

Celebrating 15 Years of a Better Web

Celebrating 15 Years of a Better Web | Mitchell's Blog: "One part of “doing more” is Firefox OS, a completely new mobile device ecosystem that brings openness and the freedom for individuals to create and enjoy the Web on their own terms, enables new kinds of competition across the ecosystem, and brings new opportunities for locally-tailored content to be created, organized and consumed.
We’re also building the Mozilla Webmaker program. Webmaker will give people the tools and skills they need to move from being consumers to being co-creators of their online experiences." 'via Blog this'