Advertising & Marketing

Yahoo!/Microsoft: Not Such a Bad Deal for Yahoo! After All?

by on August 3, 2009 · 8 comments

Like many others, I’ve wondered whether Yahoo! got less than it should have becuase government antitrust regulators prevented Google from bidding up the value of a deal with Yahoo!.

Carl Icahn, who owns 5% of Yahoo! seems happy enough while others still wonder if Microsoft got the better end of the deal,  BusinessWeek reports. While many observers have howled that Yahoo! gets revenue-sharing instead of cash up front, Yahoo! Carol Bartz notes that a cash deal “would have had significant tax consequences while contributing only $3 million in annual interest to Yahoo’s bottom line.”

Whatever the initial terms of the deal, its value depends on speedy approval without onerous conditions being imposed by antitrust regulators—even if they take the form of “voluntary” concessions. Let’s hope the government gets out of the way to give this new partnership a real chance to go toe-to-toe with Google in search, as I’ve suggested here, here and especially here.

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The War on “Free”: Google Sued for Giving Away Google Maps

by on August 2, 2009 · 17 comments

Regular readers will know that Adam and I have been waging a lonely defensive action in the war on “Free!” (ad-supported) content and services online, pointing out that restrictions on data collection and use for advertising would ultimately hurt consumers by reducing funding for the sites they love (1, 2, 3, 4). In short, there is no free lunch! I’ve also written a number of posts this past week about the dangers inherent in antitrust regulation—arguing that government efforts to make online markets more competitive through antitrust tinkering generally do more harm than good (1, 2, 3).

These two debates have long shared a common thread: Some have argued that effects on privacy should become a part of antitrust analysis and those who consider Google to be “Big Brother” want Washington both to clamp down on data use (“baseline privacy legislation”) and to ramp up antitrust scrutiny of the company.

Eiffel GoogleBut a French company has opened a much more direct front in the War on “Free.” Bottin Cartographes has sued Google for unfair competition (concurrence déloyale—literally, disloyal competition) and abuse of its market dominance. The case is a little more complicated than English language reports suggest: It’s not just that Google is giving away a product (Google Maps) that Bottin charges, or wanted to charge, for.  Like Google, Bottin charges enterprise users. But Bottin complains that Google doesn’t show ads on the public version of Google Maps. (Neither does Bottin, but maybe that’s part of why they’re upset.) Bottin’s lawyer claims that Google’s “strategy is to capture the market and squeeze out the competition by creating a monopoly for itself.” He goes on to assert that Google is “ruining the market” for mapping services.

Bottin seeks half a million Euros (plus interest) in damages, but their lawyer insists: “It’s not a question of money. Either Google puts advertising on Google Maps or the company must be forced to pay damages and abide by the terms of fair competition.”  The hearing is set for October 16.

This argument, crazy as it sounds, is one Google is likely going to have to fend off repeatedly in the coming years—and not just in Europe, where “unfair competition” is still very much about protecting competitors rather than consumers. Chris Anderson, author of the new book Free, recently addressed this very issue. Anderson’s book describes multiple ways of supporting “Free” content and services.

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The Deadweight Costs of Antitrust Scrutiny: Distracted Management

by on July 30, 2009 · 15 comments

Nick Wingfield has a great piece in today’s WSJ: Yahoo Tie-Up Is Latest Sign Tide Turning for Microsoft’s Ballmer (subscription required but can be found through a Google News search) about how Microsoft’s fortunes may be looking up across the board—especially with yesterday’s Yahoo!/Microsoft search/advertising partnership. The most interesting passage is this one:

For [Microsoft CEO Steve] Ballmer, the agreement provides some redemption in an area he has stressed is critical to Microsoft’s future. In an interview, he says the Yahoo deal received “more of my personal attention over the last 18 months than anything else we’re involved with,” including focusing on its most important new product in years, Windows 7. “It’s a big deal,” he says.

Of course, complex partnerships always require lots of time from senior management, but in this case, Ballmer’s quip speaks directly to the costs of antitrust scrutiny in terms of one of the most valuable resources available to any company: the time and attention of senior management. The “attentional cost” can of this deal for Microsoft could be broken into four parts beyond the normal costs of structuring any deal to make the most business sense:

  1. How to structure the a Microsoft/Yahoo! deal so that it would be approved by regulators (defensive);
  2. How to block a Google/Yahoo! deal (offensive);
  3. Nursing the deal through the regulatory approval process over the coming months; and
  4. The possibility that all of these costs could be wasted, to varying degrees, if antitrust regulators decide to block or restrict the deal.

These are all “deadweight losses” on the economy pure and simple—and ultimately costs to consumers.

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A Bargain Deal on Yahoo! for Microsoft & the Regime Uncertainty of Antitrust

by on July 29, 2009 · 9 comments

Eric Goldman, one of the few active cyberlibertarians in legal academe, has a thoughtful post about the search partnership announced today. Eric notes blogger Danny Sullivan’s observation about the decline in Yahoo’s assets and his comment that:

Microsoft is getting a huge bargain courtesy of the US Department Of Justice. Without Google being able to compete for Yahoo’s business, the billions that were floating around in 2008 become millions in 2009.

Danny and Eric certainly have a strong point: One of the costs of the Justice Department’s decision to block Google from partnering with Yahoo! is that Yahoo! wound up fetching much less in its deal with Microsoft. But the intervening slump in the economy and online advertising has also contributed in the drop in Yahoo!’s share price and overall valuation, so it’s difficult to make an apples-to-apples comparison. Eric is probably right that in assessment that:

Yahoo was unbelievably crazy for passing on Microsoft’s acquisition proposal from a year-and-a-half ago. It looked like a foolish mistake at the time, and hindsight has definitely not improved that assessment!

It would seem that both Yahoo! and Microsoft under-estimated the likelihood that antitrust regulators would block a Yahoo!/Google deal a year ago: Microsoft probably wouldn’t have offered as much as it did to acquire Yahoo!’s search business ($31/share) and Yahoo! (currently $15.14/share) certainly wouldn’t have held out for a better deal from Google. While the end result ended up being a Yahoo!/Microsoft deal anyway, the delay of over a year in reaching a deal is itself a significant cost of what economists would call the “regime uncertainty” created antitrust: Without clear rules, it’s difficult for economic actors to predict the decisions by regulators. A delay of a year could well prove to make a big difference in the ability of the two companies to mount a successful response to Google in search and advertising—just as Microsoft’s 18 month delay back in 2003-2004 in developing a search ad auction system to respond to Google’s AdWords system (which now produces 2/3 of its revenue) probably did much to thwart Microsoft’s initial efforts to compete in search. Continue reading →

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Our Forbes.com Op-Ed on Yahoo!-Microsoft Search Partnership

by on July 29, 2009 · 17 comments

We’ve just published an op-ed over at Forbes.com about today’s big Yahoo!-Microsoft deal.
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Searching For Success: Web 1.0 Titans Struggle to Reinvent Themselves
by Berin Szoka & Adam Thierer

Yahoo! and Microsoft on Wednesday announced a partnership in which Microsoft’s Bing search engine technology will power search for both companies, but Yahoo! will manage advertising sales and content creation.

This should be cause for celebration as a good thing for consumers. By providing a strong competitor with a combined 28% market share, the deal should also be a source of relief at Google, which has come under increasing attack for its supposed market dominance. But if recent concerns about online search, advertising, competition and privacy are any guide, many will fail to appreciate why the deal is pro-consumer, or what it says about the rapid evolution of the Internet.

It’s easy to forget that just a decade ago most of us still hadn’t done our first Google search, Microsoft was still focused on the desktop and Yahoo! was still serving up the online equivalent of the Yellow Pages. AltaVista, AOL, CompuServe and Geocities still ruled the roost.

Today, as we enjoy the fruits of a true cyber-renaissance, cyberspace circa 1999 increasingly looks like the Digital Dark Ages: The old online walled gardens have crumbled, desktop applications have migrated to the cloud and search has redefined our experience of the Web.

Oh, and did we mention just about all of it is “free“? Sounds like exactly the sort of vigorous innovation, expanding consumer choice, falling prices and cut-throat competition that policymakers should want, right?

Alas, regulators seem stuck in the past. European officials in particular seem hell-bent on continuing the antitrust crusade of the ’90s against Microsoft, myopically focused on fading paradigms (desktop operating systems and Web browsers). But instead of narrowly defining high-tech markets based on yesterday’s technologies or market structures, policymakers should embrace the one constant of the Internet economy: dynamic, disruptive and irrepressible change.

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Maine’s COPPA 2.0 Law Actually an Indirect Age Verification Mandate

by on July 28, 2009 · 9 comments

The new Maine law I blogged about on Sunday is much worse than I thought based on my initial reading. If allowed to stand, it would constitute a sweeping age verification mandate introduced through the back door of “child protection.”

The law, which goes into effect in September, would extend the approach of the Children’s Online Privacy Protection Act (COPPA) of 1998 by requiring “verifiable parental consent” before the collection of kids “personal information” about kids, not just those under 13, but also adolescents age 13-17.  Unlike other state-level proposals in New Jersey, Illinois, Georgia and North Carolina, Maine’s “COPPA 2.0” law would also cover health information, but would only govern the collection and use of  data for marketing purposes (while the FTC has interpreted COPPA to cover to essentially any capability for communicating personal information among users).

But the Maine law would go much further than these proposals or COPPA itself by banning transfer or use of such data in anything other than de-identified, aggregate form. Still I took some comfort in the fact that the Maine law, unlike COPPA or these other proposals, lacked the second of COPPA’s two prongs: (i) collection from kids and (ii) collection on sites that are directed at kids. It’s because of the second prong that COPPA applies not only when a site operator knows that it’s collecting information from kids (or merely allowing them to share information with other users), but also when the operator’s site is (like, say, Club Penguin) targeted to kids in terms of its subject matter, branding, interface, etc. Because I initially concluded that the Maine law would apply only to knowing collection, I supposed that it would be less likely to require age verification of all users, as other COPPA 2.0 proposals would—something that would be unlikely to survive a First Amendment challenge based on the harm to online anonymity.

But I was quite wrong. During the PFF Capitol Hill briefing Adam and I held on Monday, Jim Halpert, one of our panelists, noted that the bill imposed “strict liability.”  Continue reading →

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A Response to Jonathan Zittrain in The New York Times

by on July 27, 2009 · 16 comments

In response to Professor Jonathan Zittrain’s op-ed in The New York Times last Monday about online privacy and open platforms (which Adam thoroughly refuted last week) I have a letter to the editor in today’s The New York Times:cloud

To the Editor:

Re “Lost in the Cloud” (Op-Ed, July 20):

In discussing the privacy risks that have accompanied the growth of the Internet, Prof. Jonathan Zittrain rightly bemoans the willingness of governments to violate individuals’ privacy rights. Unfortunately, he proposes new legal restrictions that would stifle online innovation while doing little to enhance consumer privacy.

Mr. Zittrain proposes a “fair practices law” that would require companies to release personal data back to users upon request. Such a rule may sound workable, but purging specific data across globally dispersed server farms is no simple endeavor. Who is to pay for the implementation of such privacy procedures — especially for free services like Facebook or Twitter that have yet to turn a profit?

A better approach to online privacy is to educate users on safeguarding personal information. Ultimately, however, the only foolproof approach to protecting sensitive data online is to simply not disclose it.

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Maine Adopts COPPA 2.0 Law Heavily Restricting Marketing to Kids

by on July 26, 2009 · 19 comments

Maine has just enacted a law severely restricting marketing to kids: the Act To Prevent Predatory Marketing Practices against Minors, summarized by Covington & Burling. Adam and I released a major paper in June about such laws: COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech. Maine is following the lead of several other states that have tried to expand the Children’s Online Privacy Protection Act (COPPA) of 1998 to cover nost just kids under 13 but adolescents as well and potentially all social networking sites. We discussed at length the problems such laws create, particularly the possibility that large numbers of adults would, for the first time, be subject to age verification mandates before accessing (or participating in) the growing range of sites with social networking capabilities.  This, in turn, would significantly “chill” free speech online by undermining anonymity.

Like COPPA 2.0 proposals in New Jersey (simply extending COPPA to cover adolescents) and Illinois (applying COPPA to most social networking sites), the Maine law tries to build on COPPA’s “verifiable parental consent” requirement for the 13-17 audience as well as those under 13.

On the one hand, the Maine law goes much further than these other COPPA 2.0 proposals. While the original bill was limited to the Internet and wireless communications, the final bill’s scope applies to all communications.  The bill also covers “health-related” information (HRI) as well as “personal information” (PI). On the other hand, the Maine law is thus somewhat narrower than other COPPA 2.0 proposals and COPPA itself in that it applies only to “marketing or advertising products, goods or services.” While COPPA is commonly misunderstood to cover only marketing, it actually covers essentially any “collection” (broadly defined) of personal information from kids for any purpose—including merely giving kids access to communications functionality that might let them share personal information with other users (even if the site itself is not “collecting” that information in the commonly understood sense).

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Twitter Goes Ad-Supported, Surprising No One

by on July 5, 2009 · 5 comments

ReadWriteWeb notes that, after much speculation as to how Twitter would find a business model to support its burgeoning social network, the red-hot start-up is now, finally, showing ads. This anti-climax is almost like Freddie Mercury, the lead singer of the not-so-subtly-named QUEEN, finally revealing that he was gay in 1989:  Everybody saw it coming but wondered what took so long!

The flamboyant Mercury waited until AIDS had nearly finished him to admit the obvious (and, sadly, died shortly thereafter). For Twitter, though, embracing advertising is not the end but the beginning. Twitter’s growing popularity has meant little to the company other than increased costs. But now advertising will let Twitter “monetize” its success, while empowering users to “vote” for Twitter without having to pay a cent for the service.

I suspect that Twitter has waited till now to start showing ads—and that venture capital investors were willing to fund Twitter during this stage—because it seemed to make sense to “build critical mass” first, before trying to monetize viewership.  This has been, in principle, Facebook’s strategy, too, as I’ve discussed.

By following in the footsteps of so many other ad-supported titans of the Internet—from Yahoo! to Google and everyone in between—Twitter may finally have started to grow up. The next step in its evolution will be allowing advertisers to target ads to users based on their Tweets, which will increase the profitability of ads on the site. After that, Twitter will face pressure to offer advertisers more sophisticated forms of targeting, such as targeting ads to users based on their browsing “behavior” (other sites they’ve looked at). Just imagine the outcry!

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New Self-Regulatory Principles for Online Behavioral Advertising

by on July 2, 2009 · 5 comments

The leading trade associations in the online advertising industry have just released their new self-regulatory principles—the first comprehensive self-regulatory principles industry has produced, which track closely with the suggested guidelines released by the FTC in February.

I commend the industry for setting a new standard in transparency, consumer control and data security. These Principles do much to empower Americans to make their own decisions about privacy, but I fear that many critics of so-called “targeted advertising” will never be satisfied, no matter how high industry raises the bar.

These critics have insisted that ordinary users can’t be trusted to make the “right decisions” about privacy and have insisted on imposing restrictive default “opt-in” rules for the online data collection that makes online advertising valuable to websites that rely on ad revenue.  Such pre-emptive privacy regulation would stunt the growth of revenue for the “Free” online content and services we’ve all come to take for granted.  During a time of economic recession, and as traditional media like newspapers struggle to make the transition from print to the Internet, it’s more important than ever that policymakers allow self-regulation to evolve.  Only by doing so can we expect continued innovation and creativity online. We must all remember:  There is no free lunch!

I’ll lead a panel discussion on July 10 on Capitol Hill about “Regulating Online Advertising: What Will it Mean for Consumers, Culture & Journalism?”  Please RSVP here.

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