Copyright Law

One of the Classic Blunders: Microsoft?s De-Listing Campaign Makes No Sense

By Andrew Moshirnia

Before the Thanksgiving holiday, Microsoft held talks with News Corp. in an attempt to convince the titan of information to de-list its content from Google. The idea being, if users can only find news on Microsoft?s Bing, then that search engine will beef up its anemic market share (around 10% of search traffic). This idea is so stupid, it is like going up against a Sicilian when death is on the line.

Let me go out on a limb and say that this maneuver has a zero percent chance of succeeding.

1. PR ? It tends to piss consumers off when a company employs monopoly rather than innovation to gain new customers. This whole thing smells of antitrust, but even supposing that the action is legal, it still will aggravate consumers. Walling off the news has been a colossal failure, in part because consumers feel that they have the right to learn about what is going on in the world. We don?t want to hear about users missing out on vital news because users default to Google.

2.  Google won?t bite ? Microsoft is also surely hoping that the paid-camp approach will force Google to start paying for access to content. This would cut into Google?s margins and perhaps allow for each search engine to have a specialized set of content. This is a generally horrible idea; we don?t want specialized search engines. But Google makes plenty of money off non-news items and so I doubt that the company will buy into the pay-to-play mentality.

3.  Microsoft?s bribe must be enormous ? This move would kill a giant amount of traffic to News Corp. properties. If the Wall Street Journal no longer shows up on Google, it is hidden from 60% of Internet users.  To make up for this loss in visitors, News Corp. will demand an unearthly amount of booty.  While I know that Microsoft has a browser-war chest that would make Croesus blush, I doubt that the behemoth is willing to pony up enough money to make the news ticker go silent.

But none of that will matter, because even if this new de-listing regime came off without a hitch, blogs and aggregators (sites that will not de-list from Google) would defeat the program. There has been much press recently of News Corp.?s threats to ?parasitic? blogs, leeching off news. However, the proposed de-listing highlights exactly why we need a diffuse and redundant series of information providers: so that no one company can go dark, obscuring information for political or economic gain.

In this case, News Corp. is contemplating a move that would hide information for at least some users unfamiliar with Bing.  The ?parasite? bloggers would love this move, because this will drive traffic to sites with the same information as the hidden News Corp. stories.  While an entity may copyright a news article, it cannot copyright the facts of that story (thanks INS v. AP). I guarantee that users will summarize stories or simply link to ledes and headlines (also probably ok, see Fair Use, see also Common Sense) and those hubs or aggregator sites will see a spike in traffic.  

So to sum up, this move is going to upset consumers, have little impact on Google, kill traffic to News Corp. sites, buttress demand for the very news blogs that News Corp. wants to kill, and will cost Microsoft a hefty sum.  I can see why this idea is so attractive, but maybe Microsoft should employ a strategy with a slightly higher chance of success: getting involved in a land war in Asia.

(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He does not believe in R.0.U.S.?s and is not left-handed. But he has studied his Agrippa.)

Full post as published by Citizen Media Law Project on November 30, 2009 (boomark / email).