Subscription Porn Site SLAPPed Down After Suing RedTube For Undermining Its Business Model

from the competing-isn't-undermining dept

We've joked in the past about how many of the complaints we see from companies about new, more innovative competitors, is that they somehow represent "felony interference of a business model." Some companies, it seems, like to believe that if they have a successful business model, any new competitor that changes the market around must be doing so illegally. Eric Goldman points us to just such a lawsuit in California, where the proprietor of a subscription based porn website sued RedTube, one of many, many porn-focused free streaming video sites, and many of RedTube's advertisers, arguing unfair competition. Basically, the argument was that by setting up a website and offering these porn videos for free, while making money on the advertising, RedTube was effectively "dumping" its product on the market below cost in order to harm the market and make money elsewhere.

RedTube, in response, filed an anti-SLAPP claim, saying that the lawsuit sought to silence RedTube exercising its First Amendment rights of speech. While a lower court mostly agreed, it did leave open one small piece of the unfair competition claim, related to the issue of the claim that someone at RedTube's parent company signed up for the plaintiff's subscription website, downloaded the videos, and posted them on RedTube. However, the California state appeals court rejects the lower court's argument, and agrees that even this claim should be tossed out, because it's only unfair competition if the plaintiff can show that he has, in fact, lost money or property as a result of the unfair competition. Since the plaintiff was unable to do so, the court ruled that this claim got tossed out too (though, if true, you do wonder if there might be a copyright issue -- which does not appear to have been raised here).

On the overall point of underpricing the market unfairly, the court points out how silly this is, noting that giving away free content in exchange for advertising is a business model that's been around for ages, and is hardly a form of unfair competition:

If Bright's business model sounds familiar it's because it's the business model
typical of broadcast radio and television stations in the United States not to mention
thousands of local newspapers and, more recently, tens of thousands of Internet websites
including Youtube, CNN and Video.Yahoo.

The court also points out, in its opening, that business models change, and companies need to keep up -- and they shouldn't expect the law to keep their old business models in place:

In the 21st century, businesses of all kinds are having to adapt to a constantly
changing commercial landscape. The business that the parties describe as the "adult
entertainment" industry is no exception. Websites that originally made their money by
offering such material on a subscription or pay-per-view basis are being replaced by
"tube" websites which offer their content for free and make their money through
advertising.

There's also an interesting discussion over whether or not RedTube qualifies for SLAPP protections, as the site's content must involve the "furtherance of their right of free speech on a public issue." The plaintiff said that his complaint had nothing to do with stopping speech, but from the "anti-competitive conduct." The court notes that even publishing videos of porn online is conduct in the furtherance of speech and, in fact, that there is a "substantial public interest in the kind of sexually explicit videos shown on tube-sites such as Redtube." That's one way to put it.

The final point that seemed worth discussing on this is just how silly some "anti-competitive" behavior laws and rulings can be. Part of the plaintiff's argument here was to bring up a bit of caselaw involving two competing San Fransisco tourist cruises, where one firm got in trouble for selling tickets below cost, even though the firm made it up elsewhere. The court rejects this, by claiming that the earlier ruling doesn't apply here because RedTube "does not sell two separate products." That seems silly to me, and if anything really just highlights the problem with the original court ruling about using the tickets as a loss leader. If you read the ruling this way, you get a nonsensical result: giving away the videos for free would be legal, but charging a penny for them could suddenly be seen as unfair competition, because now it would be "selling" two separate products. Bundling multiple products, such that some are given away free or cheaply in the interest of a larger business model should never be seen as anti-competitive on its own. While I agree with the outcome, it seemed like this was the most confused part of the court's ruling, in that it tapdanced around what was, basically, a really bad ruling. The real issue should be to get rid of any rule that says such kinds of bundles are against the law in the first place.

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Yesterday's announcement that Google's Eric Schmidt will be handing the CEO reins back to co-founder Larry Page came as a shock, but with the company's aura of invincibility fading, and its core business showing signs of age, the time was right for a change. There was "an example every hour," of how triumvirate decision-making by Schmidt, Page, and co-founder Segrey Brin was hurting the company, Schmidt said. If Google wants to assure investors and consumers that rumors of its looming insignificance have been greatly exaggerated, there are a few key things that Larry has to do.

No. 1: Fix Search

Google's cash cow is its online-search advertising business, but the search results are starting to look awfully spammy. Between content farms that flood the Internet with meaningless search bait and black hat optimizers that use sleazy tricks to get top results, there are entire industries devoted to gaming Google's algorithms.

People who depend on Google for their livelihood have started to notice, and consumers are showing signs of getting antsy: There is a reason Microsoft's Bing quickly picked up 12 percent of the search market, and it's not because of its Gossip Girl product placements, or even vastly superior search results. Google has also drawn some ill will with an aggressive, some say illegal, tendency to push its own services to the top of the page.

It looks like Larry gets the seriousness of the problem. Friday, on day one of his regime, Google acknowledged the issue in a blog post, even as it downplayed its severity. "Reading through some of these recent articles, you might ask whether our search quality has gotten worse," said principal engineer Matt Cutts. "The fact is that we’re not perfect, and combined with users’ skyrocketing expectations of Google, these imperfections get magnified in perception. However, we can and should do better."

It will take more than a wonky breakdown, but it's a start.

No. 2: Find Growth

The aforementioned cash cow is still so lucrative that it's easy to forget that Google has never really succeeded in any other business. Despite the ubiquity of Gmail and YouTube, they are not yet successful stand-alone businesses. YouTube only recently made it into the black after incurring hundreds of million of dollars in losses over the years.

It's not like Google isn't aware of the problem. Witness the frenzied diversification into anything that looks hot: cars that drives themselves, social networks, and yesterday's long-expected news of a Groupon clone. But trying everything hasn't produced much of anything.

Larry needs to ditch the side projects and focus on the most promising ones: the Android mobile-phone operating system, and the mobile ad network AdMob, which even makes money from iPhones as it serves up 2 billion ads a day.

No. 3: Stop the Brain Drain

Here's an enigma for Larry to unravel: Why does a company with five-star chefs, high-tech nap pods, and free massages have to throw millions of dollars in cash money at employees to get them to stay?

Part of the problem is Google's convoluted management structure, which Page is clearly trying to fix. If a team has been working on an amazing project for a year, only to hear that it overlaps with someone else's pet project, who wouldn't want to jump ship? But it also has to do with Google's size and a potentially fatal inability to face up to an unpleasant reality. From what we hear, there's reluctance from some of the old guard to accept that Google is a massive corporation now.

There is a major intangible at play as well, something that may not be easy for someone who is more Chief Engineer than Chief Executive to grapple with. If the ambitious go-getters that make it through Google's onerous interview process sense that the cool, sexy projects are happening at Facebook, Apple, or some stealth VC project with no name, then no amount of money is going to keep them on side, no matter how big a money truck Google backs up to their cubicle.

Which leads to....

No. 4: Consider a Personality Transplant

Tech bloggers were smitten with Eric Schmidt, but for all the wrong reasons. Sure, he grew Google into a $200 billion behemoth, but he also had a weakness for creepy Big Brother jokes delivered so dryly that no one could be sure he was joking. Contrast that with the controlling and charismatic Steve Jobs, surely one of the best salesmen in modern history, with a reality distortion field that may have made enemies but also bestowed an ineffable cool on his entire company.

Larry, by all accounts, makes Eric Schmidt look like Steve Jobs.

Ken Auletta explains:

He is a very private man, who often in meetings looks down at his hand-held Android device, who is not a comfortable public speaker, who hates to have a regimented schedule, who thinks it is an inefficient use of his time to invest too much of it in meetings with journalists or analysts or governments. As C.E.O., the private man will have to become more public.

Google's engineer-driven approach to new products has been a long-standing problem. (Google Wave, anybody?) Unlike Apple, it seems to build for engineers and developers, not consumers. That's great when you're making an open source mobile platform like Android, which is hot on the iPhone's tail due to its openness and potential ubiquity across multiple carriers and devices. It's not so great when you made everyone on Gmail opt into Google Buzz ’ or for creating fanboys and girls who want to use your products, even if they have to anyway.

Either way, Larry, you're going to need some charm to lend Google the same cool factor it had last time you were in charge. Maybe start by looking up from your Android phone every once in a while.

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Tuesday, February 15, 2011

Making Money With Youtube

Subscription Porn Site SLAPPed Down After Suing RedTube For Undermining Its Business Model

from the competing-isn't-undermining dept

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