Digital Media

If you've been following the headlines of late you'll find that StatCounter's research arm, a Web tracking service most Webheads are familiar with, has gone from afterthought to player in just a few short months.

Credit a few handy Bing-happy press releases and handy browser market share stats.

There's a good bit of hubbub about IE market share, which has dropped off since March (Techmeme). The big question is whether we should believe the numbers (below is the year over year trends).

(Credit: StatCounter)

Let's look at the methodology and history of StatCounter's research effort. StatCounter launched its Global Stats service in March. The service primarily measures search, browsers and operating systems.

Here's how StatCounter compiles its states. It tracks its 2 million members globally with 40 percent of that total in the U.S. and 25 percent in Europe. Overall, StatCounter analyzes about 4 billion page loads a month.

The sample certainly sounds large enough to be valid. However, Net Applications, which has been a go-to browser market share tracker, has said it its analyzing "some significant variations in browser and operating system statistics" for June. It remains to be seen whether Net Applications will verify what StatCounter is claiming for IE market share.

Net Applications has this to say about its methodology:

We use a unique methodology for collecting this data. We collect data from the browsers of site visitors to our exclusive on-demand network of live stats customers. The data is compiled from approximately 160 million visitors per month. The information published is an aggregate of the data from this network of hosted website statistics. The site unique visitor and referral information is summarized on a monthly, weekly, daily and hourly basis.

Meanwhile, a statement from Net Applications gives another reason to be mildly skeptical about writing that obit for IE market share. Apparently, IE 8's compatibility mode with IE 7 has lead to some underreporting of IE 8 market share. This wrinkle basically means IE 7 historically got more market share.

Simply put, there enough wrinkles out there to have some healthy skepticism for now about rapid fire market share claims. For instance, StatCounter was claiming Bing made market share gains in its early days. The rub: Bing's market share success will be measured in months and years not days. In the meantime, StatCounter is happy to detail Bing's loss of momentum too.

Perhaps IE's market share has collapsed, but a cross section of data from multiple sources--including panel approaches from comScore and Nielsen--would be helpful.

It is always a case of some considerable concern when a lady reveals too much on Facebook. The site has standards, after all.

The lady in question this time is Lady Shelley Sawers, the wife of Sir John Sawers, the new head of British spy agency MI6.

According to reports in the Mail and numerous other media outlets, the fair lady may not have been quite aware that Facebook can be seen by a rather large number of people if you don't specify that you want to keep your information vaguely private.

Lady Sawers saw fit to wander onto the site and reveal where their London apartment is located and where their children are. This might not appear to be the wisest course of social action if your children happen to be the offspring of the head of an international spying network.

Lady Sawers even posted 19 happy pictures of the family's last vacation.

(Credit: CC Anonymous9000/Flickr)

These pictures seemed to have spurred the her enthusiasm for uploading, as, the following day, she furnished 26 more, including shots of Sir John in his swimming attire. She apparently displayed several pictures of Sir John hanging with some actors, even one thespian who performed in that apogee of popular English culture, the TV series "Footballers' Wives."

According to the reports, Lady Sawers' Facebook account had no privacy protection. All those in the highly open "London" network could espy the head spy in his swimming cozzie.

Moreover, Sir John, who by tradition will be code-named "C," received notes of congratulations on his wife's Facebook page. One note, for example: "Congrats on the new job, already dubbed Sir Uncle "C" by nephews in the know!"

When the Mail contacted the British Foreign Office to alert them to the socially networked revelations, everything was sharpishly effaced without a trace.

Now, I know that there will be those who will feel critical of Lady Sawers' remarkable trust in the Web's world-wideness.

However, I feel her actions show a considerable faith in her husband's skills in weeding out nefarious bodies from the dark camouflage of life. And her social openness is surely sending a clear message to those who do Britain ill that the fine old country fears nothing and no one.

Tenants of the Fisher Plaza data center carry servers out of the building Friday morning. The building houses the Bing Travel servers, among others.

(Credit: TechFlash )

Update at 3:30 p.m. PDT July 4: Power was restored to Fisher Plaza early Saturday morning with back-up generators, and many sites are back online, including Bing Travel, according to TechFlash.

Update at 4:51 p.m. PDT July 3 The fire's start time and a statement from Fisher Communications were added.

An electrical fire at downtown Seattle's Fisher Plaza has interrupted service at a long roster of Web sites, including Microsoft's Bing Travel and Authorize.net.

Fisher Communications said in statement Friday that the problems at the Fisher Plaza data center started in a garage-level electrical room at approximately 11:10 p.m. Thursday night. Fisher said the cause of the fire remains under investigation.

Some of the affected sites put up messages explaining what had happened. "The blown transformer knocked out power to the entire building, which is home to the Bing Travel servers," a message on Bing Travel said. "This is isolated to Bing Travel only, and there is no impact to any other aspect of Bing."

Bing Travel said it's working hard to restore service, and set 5 p.m. PDT Friday as the target time for resumption of service (it did not meet that goal). "In the meantime, you may use Microsoft travel partner Orbitz for your travel needs," the site said.

TechFlash reporter Todd Bishop has arrived on the scene and is posting updates.

Bishop notes that this isn't the first outage at the Fisher Plaza data center--service went offline last year as well after an electrical fire. The Fisher Plaza Web site also was down as of this writing, but a cached version says:

Fisher Plaza is the only mission-critical business community in the Northwest combining Class A office, data center, colocation, and retail space with 21st century communications and media services.

"Pretty frustrating," writes one TechFlash poster. "I understand problems happen, but this the second time in a year that we have had to explain to our customers about an outage. This is supposed to be a 'world class' facility. Brings up a lot of questions that are still unanswered from the last outage."

Among other sites impacted--see Kyle Mulka's blog for a list of affected sites and their current status--online real estate service Redfin suffered an outage last night, but was back up Friday morning, according to TechFlash. Fisher Plaza is also home to Seattle's KOMO-TV and KOMONews.com, which reports that the server farm fire also impacted television and radio broadcasts. As a result, KOMO Radio and KOMO-TV are broadcasting Friday from remote locations.

Verizon Communications spokesman Jon Davies said the fire also temporarily disrupted Verizon's Seattle-area DSL service. About 50,000 customers in Oregon and Washington lost Internet connectivity, Davies told TechFlash.

On Friday afternoon, Fisher said it's bringing in electrical generators to restore power to the building, at which time it can further assess the situation. "The company is working to restore normal service to its customers as soon as possible," Fisher said.

MotherJones was yet another site taken down by the fire. Others: Big Fish Games, Dotster, Tom's of Maine.

Updated 2:42 p.m. PDT with background information on the settlement.

The U.S. Department of Justice confirmed Thursday that is has opened a formal investigation into the settlement between Google and book publishers over the digital publishing rights to certain books, citing antitrust concerns.

Such an investigation had been previously reported, and Google had confirmed that it had received requests from the government for information. But Judge Denny Chin, who is overseeing issues surrounding the settlement until it is implemented in October, received formal notice of an investigation Thursday from the DOJ and released the letter as part of the court docket concerning the case in the U.S. District Court for the Southern District of New York.

"The Antitrust Division is investigating the possibility of anticompetitive practices involving digital book intellectual property rights and distribution," said Gina Talamona, a DOJ representative. She declined to elaborate beyond that statement and the letter sent Thursday to Judge Chin.

Google issued a statement: "The Department of Justice and several state attorneys general have contacted us to learn more about the impact of the settlement, and we are happy to answer their questions. It's important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S."

Last October, Google settled a lawsuit filed by several publishing groups over its plan to digitize books through Google Books for $125 million. The settlement gave Google the right to digitize and publish books that are out of print but still protected by copyright law, forcing authors to opt out individually if they did not wish to participate. Google has negotiated deals with some publishers for current works, and is also digitizing public-domain works.

The settlement has drawn heated criticism from those who think Google was effectively handed a monopoly over these copyright-yet-out-of-print works, since anyone else who wished to publish those books would have to individually negotiate with their authors, many of whom can not be located very easily. Earlier this year Judge Chin extended the deadline for authors to decide whether they wish to participate in the settlement from May to September, with a final hearing scheduled to take place in October.

Google argues that any potential competitor who also wished to scan books could negotiate a deal with the Books Rights Registry, a nonprofit group set up as part of the settlement to represent the interests of authors. Some think that as a practical matter, however, Google's lead in this area is so beyond the reach of competitors as to discourage efforts to even try, and worry about the concentration of so much information in the hands of one company.

It has been an interesting year for Google and the federal government. After Google executives, including CEO Eric Schmidt, publicly campaigned for President Obama last year, his administration has repaid the favor by taking a very close look at Google, beyond the book search settlement. The DOJ is reportedly looking into the hiring practices of several Silicon Valley companies, including Google, and the Federal Trade Commission has wondered if Schmidt's participation on Apple's board of directors is a conflict of interest given his participation on Google's board.

Google has shrugged off the concerns, noting that any large company should expect scrutiny from the federal government. Still, Google executives have embarked on a charm offensive of late, making the argument that Google really isn't that dominant a company and reminding everyone that the competition "is just a click away."

The letter from the DOJ is reproduced below:

A coalition of advertising industry trade groups have agreed on new guidelines for privacy related to behavioral targeting on the Web. Officially released on Thursday and expected to go into effect early next year, the set of principles concern what advertisers can do with personal data collected in order to zero in on target audiences.

The groups involved are the American Association of Advertising Agencies (4A's), the Association of National Advertisers (ANA), the Direct Marketing Association (DMA), and the Interactive Advertising Bureau (IAB).

The guidelines take the form of seven principles, ranging from a commitment to better consumer education about behavioral targeting, to a focus on keeping potentially sensitive data secure.

"Consumers deserve transparency regarding the collection and use of their data for behavioral advertising purposes. I am gratified that a group of influential associations--representing a significant component of the Internet community--has responded to so many of the privacy concerns raised by my colleagues and myself," Federal Trade Commission (FTC) commissioner Pamela Jones Harbour said in a release.

"These associations have invested substantial efforts to actually deliver a draft set of privacy principles, which have the potential to dramatically advance the cause of consumer privacy. I commend these organizations for taking this important first step."

Lawmakers have paid close attention to the evolution of online behavioral targeting over the past few years, especially as the vast amount of personal data on social networks makes it possible for advertisers to target more and more specific niches. Some have even suggested that behavioral targeting should be opt-in by default.

Last month, several subcommittees of the U.S. House of Representatives Committee on Energy and Commerce hosted a hearing about behavioral ad standards, and executives from companies like Facebook, Yahoo, and Google testified. At least one of those companies has come out publicly in support of the new guidelines.

"One of the key strengths of the principles is the fact that they apply to a broad range of companies participating in online advertising--advertisers, publishers, and ad networks," a post about the new measures on Google's public policy blog read.

Update at 8:50 a.m. PDT: The video has now disappeared from the ad agency's site as well.

Earlier this week, we were all rather intrigued by the appearance of a Microsoft ad, in which a wife borrows her husband's laptop and suffers a technicolor nightmare when she espies a site that he has been, um, enjoying.

By Wednesday night, however, Microsoft had second thoughts about the pulling power of puke.

The ad has been pulled from the IE8videos channel on YouTube. It's also has been removed from the BrowsefortheBetter.com site, which is part of the ad campaign. The vomit ad's slot has been replaced by a tag that says "coming soon."

This could have meant that a new ad is coming soon, or that the upchuck was uploaded too soon.

The truth is that Microsoft wasn't 100 percent happy with vom-com.

"We make a point of listening to our customers," a Microsoft representative said in an e-mail Thursday morning. "We created the OMGIGP video as a tongue-in-cheek look at the InPrivate Browsing feature of Internet Explorer 8, using the same irreverent humor that our customers told us they liked about other components of the Internet Explorer 8 marketing campaign. While much of the feedback to this particular piece of creative was positive, some of our customers found it offensive, so we have removed it."

Although many CNET commenters on Wednesday thought that the ad was funny, some criticized the piece as condoning surfing for porn (shame, shame, shame), as well as the generally less than perfect taste associated with yellow stuff exploding from a nice-looking lady's mouth.

However, Bradley and Montgomery, the agency responsible for the whole campaign--which features Superman actor Dean Cain--still proudly displayed the ad on its own site as of early Thursday morning.

And so it should. The ad has already created exactly the aftereffect for which the agency likely hoped.

But, as so rarely happens, I spoke too soon. Here we are at 8:50 a.m. PDT Thursday, and the ad has now been removed even from the Bradley and Montgomery site.

Even though the wife in the ad might, one feels, stand by her man, it appears the agency has decided not to stand by its ad.

It's official: Jammie Thomas-Rasset intends to appeal her case, one of her lawyers told CNET News on Wednesday.

"She's not interested in settling," attorney Joe Sibley said in a brief phone interview. "She wants to take the issue up on appeal on the constitutionality of the damages. That's one of the main arguments--that the damages are disproportionate to any actual harm."

Joe Sibley (left) and Kiwi Camara represent Jammie Thomas-Rasset.

(Credit: Camara & Sibley law firm)

Thomas-Rasset has a brief period to file a notice of appeal, legal experts said. The actual appeal can come later.

What this means is that the Thomas-Rasset drama will have a third act. In October 2007, a jury rendered a $222,000 verdict against her but that decision was later tossed out.

Then, two weeks ago, a federal jury in Minnesota found Thomas-Rasset liable for willful copyright infringement and ordered her to pay $1.9 million. Since then, the blogosphere has churned with speculation about how she will proceed. The 32-year-old Minnesota resident said after her latest trial that she would refuse to pay. Still, with $1.9 million in damages strapped around her neck, many have wondered whether Thomas-Rasset would fight on--or cut her losses and settle.

The Recording Industry Association of America said on Monday that it had made a phone call to Sibley and law partner Kiwi Camara last week to ask whether Thomas-Rasset wanted to discuss a settlement. An RIAA representative said that its lawyers were told by Sibley that Thomas-Rasset wasn't interested in discussing any deal that required her to admit guilt or pay any money.

In settlement talks, there's often maneuvering, so the RIAA was unsure which way Thomas-Rasset would go--at least until Sibley made it clear.

"The defendant can, of course, exercise her legal rights," said Jonathan Lamy, an RIAA spokesman. "But what's increasingly clear, now more than ever, is that she is the one responsible for needlessly prolonging this case and refusing to accept any responsibility for the illegal activity that two juries decisively found her liable for. From day one, we've been fair and reasonable in exercising our rights and attempting to resolve this case."

Sibley told CNET News that when RIAA lawyers called a couple of days after the second trial to gauge Thomas-Rasset's interest in settling, they didn't throw out any dollar figures. He did say that following Thomas-Rasset's first trial, the trade group offered to settle for $25,000.

Thomas-Rasset's case has already helped set a series of important legal precedents, including establishing that it is sufficient to show that defendants placed files in their P2P shared folder to prove they intended to make the music available across the network. With the case going to the appeals process, there's a good chance it will continue establishing legal parameters.

"They have an uphill battle," said Ben Sheffner, a former attorney at 20th Century Fox and a rising star on the pro-copyright side. Sibley and Camara "are asking the court to do something no federal court has ever done before. However, this is a good test case. You have a non-wealthy defendant and you have a huge damages award."

Usenet.com lawyers lost their copyright infringement case to the music industry on Tuesday and are now preparing for a federal court to assess damages. The judgment could be hundreds of millions of dollars.

Charles Baker, attorney for Usenet.com

(Credit: Fulbright & Jaworski law firm)

In the long list of copyright cases brought by the Recording Industry Association of America, this one stands out for all the drama it provided, and depending on which side you talk to, the amount of precedent-setting decisions involved. Usenet.com lawyers argue the presiding judge diluted the power of the landmark 1984 Betamax case. RIAA attorneys sigh, and say their opponents are just trying to inflame the public.

In what became a provocative sideshow during the proceedings, the RIAA alleged that Usenet.com destroyed evidence and prevented employees from being questioned by RIAA lawyers, going so far as shipping some of them off on extended trips to Europe. Presiding U.S. District Judge Harold Baer, of the Southern District of New York, was unamused and sanctioned Usenet.com.

Usenet.com is a company that enables users to access the Usenet network, an early electronic discussion forum and formerly popular way to share binary files. In October 2007, the RIAA filed suit against Usenet.com, which charges up to $19 for access "to millions of MP3 files and also enables you to post your own files the same way and share them with the whole world."

That was how Usenet.com advertised itself and while the pitch may have lured customers, it certainly didn't help in the defense against a copyright suit. Baer ruled in favor of the RIAA on Tuesday and found Usenet.com liable for direct, contributory, and vicarious infringement. Sometime in the next three weeks, the judge will hear from both sides as to what they think damages should be and what steps Usenet.com must take to prevent copyright violations.

Both sides agree that there is a vast amount of infringing material that Usenet.com helps make available. Baer could assess damages anywhere from $750 per infringing work to $30,000. The total award to the RIAA theoretically could be in the hundreds of millions of dollars. Already, one of the three defendants in the case has filed bankruptcy. There are serious questions about whether Usenet.com can survive a significant damage award.

"The court needs to balance the fact that you can't simply shut us down," said Baker, "because the technology itself has substantial non-infringing uses. On that everyone agrees."

Erosion of Betamax
For other media services accused of copyright violations, such as YouTube and music start-up Project Playlist, nothing in the case is more important than the judge's decision to prevent Usenet.com from arguing a Betamax defense, Baker said. The Betamax case refers to the Supreme Court decision in Sony Corp. of America vs. Universal City Studios, which decided that makers of video recorders could not be held liable for copyright infringement.

That ruling has been interpreted to mean that companies can't be held liable if the devices they create are "capable of significant non-infringing uses." It is a decision that tech companies have long relied on to shield them against copyright complaints. But the RIAA now has Betamax in its crosshairs, according to Baker.

Judge Baer said, in his 38-page decision, that the chief difference between Usenet.com and Sony in the Betamax case is the latter company cut ties with customers once they purchased a VCR. After that, Sony had no part whatsoever in illegal acts committed by customers. Usenet.com, on the other hand, maintains a relationship with customers. For Usenet.com subscribers, the company is the gatekeeper to the Usenet network.

"You do see a whittling down of the (Betamax) policy unfortunately," said Baker, with the law firm of Fulbright and Jaworski. "I think because the court found that we were more actively involved in our users than they were in the Sony case itself. Yes, we maintained a relationship with our clients but we tried to point out Sony also maintained a relationship by keeping up with customers through warranties, and providing 800 numbers and by contacting their customers. In this situation, the court may have gone too far in finding that Sony Betamax was not available to us as a defense."

Another precedent set by Baer, according to Baker, is that distributing material within a closed network was a violation.

"This is something new the judge bought off on their argument," Baker said. "The way Usenet works is there is copying going on in the servers, there's multiple copies being made. When a user uploads a file it goes into a server and subsequently those binary files move from server to server as they go through the Usenet network. The court has held that was a violation of the right of distribution and no court has gone there before."

Jennifer Pariser, the RIAA's chief of litigation.

(Credit: RIAA)

Nothing new here, move along
The RIAA's chief of litigation denied in an interview that that there is much new, if anything, in Baer's decision. "Baker is inflaming your readers by suggesting that Baer went further than he did," said Jennifer Pariser, the RIAA's senior vice president of litigation.

"You only need to look at the decisions that we have prevailed in thus far against peer-to-peer services," Pariser said. "In all of those cases, the court must have determined that Betamax didn't apply because you know for sure that every defendant always tries to say 'We're immune from liability because of Sony Betamax.'"

She noted that decisions in such cases from Aimster to Napster have all said that just because a service is capable of non-infringing uses, doesn't automatically protect it from liability. In Napster, for example, the company asserted the Betamax case in its defense but U.S. District Judge Marilyn Patel ruled against the music-sharing service because the defendant had knowledge of copyright theft on the site.

"It is simply untrue that this case is unprecedented," Pariser said.

As for the way the files are distributed on Usenet, she also disagreed that Baer's findings were anything new. "It's true that this particular technology has not been observed before, but you can think of that as analogous to the transferring from one file to another on a peer-to-peer network, which the Supreme Court in Grokster said was infringement. The fact that it goes from a peer to another peer doesn't mean it's not copyright infringement.

"What Baer said," Pariser continued, "is that the transfer of the file from this defendant's server to a Usenet.com paid subscriber is unauthorized distribution."

How about the shenanigans Usenet.com was accused of committing with respect to evidence and discovery?

Baker said the RIAA's favorite tactic in these sort of cases is to "bombard defendants with discovery requests" and that his clients aren't very sophisticated. They were doing their best to comply. He added that the RIAA is trying to use this case to scare other Usenet services.

Pariser said that in all the similar cases the RIAA has pressed, when it came to Usenet.com "the discovery misconduct was unprecedented."

As for what the RIAA is going to ask for in damages, Pariser said the RIAA hasn't come to a dollar figure yet but "certainly there's no question that Usenet.com caused multimillion dollars worth of damage."

Note: See Usenet.com's reaction at "Usenet.com says RIAA 'whittling down' Betamax case."

The Recording Industry Association of America has prevailed in its copyright fight against Usenet.com, according to court documents.

In a decision that hands the RIAA an overwhelming victory, U.S. District Judge Harold Baer of the Southern District of New York ruled in favor of the music industry on all its main theories: that Usenet.com is guilty of direct, contributory, and vicarious infringement. In addition, and perhaps most important for future cases, Baer said that Usenet.com can't claim protection under the Sony Betamax decision. That ruling says companies can't be held liable for contributory infringement if the device they create is "capable of significant non-infringing uses."

Baer noted that in citing the Betamax case, Usenet.com failed to see one important difference between it and Sony. Once Sony sold a Betamax, an early videotape recorder, the company's relationship with the buyer ended. Sony held no sway over what the buyer did with the device after that. Usenet.com, however, maintains an ongoing relationship with the customer and does has some say in how the customer uses the service.

Usenet.com's lawyers could not be reached Tuesday evening.

The two-decade-old Usenet network was one of the early ways to distribute conversations and binary files, long before the Web or peer-to-peer networks existed. Usenet.com is a company that enabled users to access the Usenet network.The RIAA filed suit against Usenet.com in October 2007, accusing the company of encouraging customers to pay up to $19 a month by enticing them with copyrighted music.

The case is highly unusual because of Baer's many findings of discovery misconduct by the Usenet.com side. The rules of discovery in a civil case requires both sides to exchange information. The RIAA produced evidence, however, that Usenet.com destroyed evidence or failed to produce witnesses on multiple occasions.

The RIAA accused Usenet.com of intentionally destroying the contents on seven hard drives that contained employee-generated data; providing false information; and attempting to prevent employees from giving depositions by sending them to Europe.

The judge found the evidence credible but denied the RIAA's motion to hand it a victory based solely on the misconduct. Instead, the judge sanctioned Usenet.com "from asserting (the company's) affirmative defense of protection under the DMCA's safe harbor provision."

The Digital Millennium Copyright Act's safe harbor provides refuge to Internet service providers from being held responsible for criminal acts committed by users. Without that and without the Betamax decision, Usenet.com was a sitting duck.

In a brief note posted Tuesday to RIAA.com, the trade group for the music industry said: "We're pleased that the court recognized not just that Usenet.com directly infringed the record companies' copyrights but also took action against the defendants for their egregious litigation misconduct."