What if Broadcast Networks Dis-Affiliated ?

You can get anything you want on the Internet. The internet is making everyone that creates , distributes and consumes content rethink long established habits. Bottom line is that if content is encoded within bandwidth constraints, any bit of content can be distributed to any node any where in the world. This isnt a shocking revelation, this has become conventional wisdom.

If I want pretty much any broadcast network show, I can go right to the network website and watch it. It wont be in HD. It will be on my PC rather than my TV. I might not be able to watch it the same time as its broadcast. But there is a good chance, I can get it pretty easily. If im literate with Bittorrent, i can definitely get it.

Which got me thinking. If broadcast shows are available everywhere anyway…..

1. Why are satellite distributors and cable MSOs required to “mustcarry” local stations ?
I could see if the station was exclusively local content. It could serve a local interest to have it available over cable and satellite. But they aren’t.
It makes absolutely zero sense that broadcast networks and local stations put their original content on the net, making it available digitally to anyone , anywhere, but there are regulations that require carriage of that station.

Put another way: As of the 1st quarter of 2009, all over the air signals will distribute their programming digitally. All internet distribution of the
same content is already digital. All satellite distribution of the same content is already digital. While most distribution of the content on Cable plants is currently analog, telcos doing video are digital and cable companies are doing everything possible to go digital as quickly as possible. Why should any one type of digital distribution be different from another ?

I understand that some people live in areas where TV reception is difficult and must carry is there to serve them. I also understand that there is a national and local interest for those same homes to have broadband to the home. Guess what. If you yank off must carry of stations, and let stations stream their signal over the net rather than their plants, you can take bandwidth that was previously configured exclusively to those stations and allocate that freed up bandwidth to other things, including more channels or faster internet or whatever else people dream up next. At its most basic, the cable and telcos can increase bandwidth to the home.

It may not be as pretty to receive a local station over the net on your PC, rather than on your TV , or in HD, but it accomplishes the goal of access to that station. Plus of course, the must carry elgible local signals are all going to still be available over the air, and in many cases the coverage area will be stronger (if the station full powers its transmitters)

Satellite providers can be required to carry a single national feed for each network, freeing up their bandwidth and possibly even contribute financially to broadband program to reduce costs and extend coverage. There is a far greater consumer interest in requiring “lifesaver broadband basic” than there is requiring that local stations be carried and that is the point. We need to think more in terms of must provide broadband, than must carry TV

Times have changed. Must carry is over the hill.

2. Whats the point these days of broadcast affiliations ?
I know that ABC, CBS, Fox, NBC want to aggregate as large an audience as possible so they can charge advertisers the most money. I know that they want to know they have guaranteed levels of distribution before they go in to spend 10s of millions on scripted programming or sports. And I know that local stations are screaming bloody murder about wanting to be compensated for their signals by cable and satellite and telco distributors. If cable networks get paid by the sub, why cant they is the argument. It has merit, but then again, since most all of their programming is available on the net now, there is a strong argument why per sub fees should not be paid.

Consumers just want content where they want it and how they want it. But consumer taste varies from city to city. A show that is a hit in one town can be a dud in another. A show that is racy in one town is provincial in another. Yet because of affiliations, with just contractually limited exceptions, network shows are distributed nationally.

Which leads to some interesting questions.

Should the broadcast networks drop affiliation and open it to market by market bid ? You want Friday Night Lights on your station in Dallas ? Come to our Programming Upfront and bid for your market. Any of the 10 or more over the air stations could bid in any city. Or beyond the stations based in dallas, maybe a website with 1mm uniques based in Dallas per day wants to bid on it and play it from their site knowing they can get registration data and sell advertising that is user specific, or more contextual.

On the flipside, what if stations decided to drop affiliations across the board and just bid for content on a program by program basis ?

I realize that owned and operated and group ownership of stations complicates much of this, but all it takes is one market. One market where the affiliates all unaffiliate. One market where the networks unaffiiliate and open to bid. (Of course the anti trust questioning would be at the front of the line).

I honestly dont think the unaffiliation scenario has a chance in hell of happening as things stand today. But one thing is for certain. Things change.

3. Why is it that there are restrictions on satellite consumers receiving national network feeds ? The concept that national feeds are available based on the ability to receive an over the air signal in this day and age is just ludicrous. Maybe im misunderstanding something, but if im an internet customer i can get a stream via my internet connection of a networks programming from their website without any questions about how or whether i can receive their signal over the air. Why is it it if a satellite company wants to offer the national feed to its customers, it cant ?

The must carry. Thats just crazy. As is not being able to get national feeds via satellite . Its absoutely ridiculous in this day and

A Little Ditty about Web Video and HDTV

This is an HDTV christmas. HDTV pricings are dropping, while the size of the screens gets bigger. Its a trend that isnt going to stop. In fact, some think that 70″ LCD will be the norm in 5 years.

What does that have to do with Web Video ? Everything

The thing about big screens, is that High Def content looks better the bigger the screen. Standard Def content looks worse the bigger the screen. Compressed web video looks bad if you try to expand it to fill your PC monitor. It becomes abstract art if you try to put it on your HDTV.

But thats just a minor issue. Here is the issue that everyone seems to be missing.

If you have a new HDTV look at the video inputs, or do something different and open up the manual. Either way you will come to find that the only way for your new HDTV to receive and display HD content in HD is through a component, DVI or HDMI port. Thats it. You may have S Video or Composite there, and they may allow you to connect to your cable, satellite or PC, but they don’t play in HD.

Now look at the back of your PC. Look to see if you have a component, DVI or HDMI port out ? Chances are that unless you bought a PC with high def video in mind, you don’t

To quote from Cool Hand Luke; “What we have here is a failure to communicate”

The PC you have, and that most Americans have can’t connect to their brand new HDTV and play High Def content. (That is even if they have the 2.8Ghz processing power required in many cases).

So all the prognosticators who believe that streaming or downloaded High Def content over the net is right around the corner. Well, maybe only if that corner includes not only huge bandwidth upgrades, but also massive replacement of video cards or PCs with brand spanking new units. (Of course there is irony in the fact that if your CPU or video processor is fast enough, you can play HD content out of your VGA port to your PC monitor. But VGA inputs are going away in HDTVs and VGA to component doesnt work well and to DVI converters are expensive and confusing to typical consumers).

So how many people are going to upgrade or replace their PCs in order to connect to their new HDTVs ? How many are going to put the brand new or upgraded PC they just spent good money on close to, and shared with their HDTV and their high speed data connection and give up CPU and Bandwidth performance rather than just leasing a box from the satellite , cable or telco provider ?

I personally dont think many will and the natural replacement cycle will take many, many years to create a compatible installed base of PCs

So the opportunity for Video over the web to replace TV , if you think such a destination is possible, is going to be hurt by the quickly growing base of HDTVs. The expansion of HDTV content through traditional distribution is going to be helped

But wait, there’w more.
2 Way CableCards from the Cable providers and Satellite receivers on a PC Card from DirecTV or Dish Networks could quickly pre empt any chance video over the net had to replace traditional TV distribution. . If either of those becomes a USER INSTALLABLE , no more than 1 call to the provider option, then the PC might become a home for distribution of HD content to HDTV, which would of course put more nails in the video over the net replaces TV coffin

Personally, Im still suprised that cable and satellite providers would rather absorb the capital costs of boxes and all the inherent risks associated with changing technology and pricing rather than put the electronics on a card or chipset, with the appropriate HDMI or VESA output, that is sold cheap or bundled with service and control the entire thing through their sofware. There is no reason why a lot of this cant be on a chipset that is provided to PC manufacturers for Home Theater PCs, making every PC sold a client where the enduser picked up the capital cost.

If they would, then “plug your PC into the cable port in the wall and into your HDTV , and away you go becomes a reality”. Satellite would only have to worry about installing the dish. MultiRoom would be simplified as PCs around the house could handle distribution to local TVs or monitors..

And video over the internet replacing cable and satellie would be just an amusing memory

The Google Brilliance applied to Newspapers and Local Media

I’m a big believer that you find your core business and become the very best you possibly can at it. If you can’t excel at your core competency as a company, you won’t be around very long to find an alternative.

The best example of this was when I bought the Dallas Mavericks
. When I bought the team the conventional wisdom was that we were in the basketball business. That our customers were entertained by the beauty of the game. In reality our real business was “creating sore throats from screaming and sore hands from clapping”. Sporting events are pretty much the only place where a CEO will scream and yell while sitting or standing right next to a 16 year old with a Mohawk and pierced everything and then hi five him/her when something good happens for their team.

Google realized early on that they are in the traffic monetization business. They started off in the search business, but quickly realized that while continuously improving search was important, continuously improving search and page view monetization was more important. This small step for Googlekind meant that “the not searched for here” syndrome was quickly eliminated and Google search was put everywhere and anywhere that could create incremental content. That Adsense was a no brainer extension and that great monetization algorithms clearly matched the goals of advertisers. Click Fraud excepted, if a user clicked on an ad because it was of value to them, all the financial participants benefited.

I think their ability to excel at monetization dramatically above and beyond their competition has put them in a unique position to arbitrage the financial expectations they have for a page view vs the expectations of everyone else on the net. Myspace, AOL and many others are on a list of partnerships that appear to be made on a simple principle of “We can pay you more for your traffic than you can earn for yourself”. Thats a powerful position to be in, and Google certainly and rightfully has used that power to their and shareholder’s advantage.

Which leads us to Newspapers/Local Media companies. Whether you are a standalone newspaper, or a local media conglomerate with Paper, TV and more, the one thing you have without question is a salesforce. A salesforce that goes out into the business community and sells them on the benefits of advertising on your properties. The job of each salesrep, when done well, is to create a return to the customer that exceeds their investment. Of course its not always easy to define that return, but the salesrep hopefully has a close enough connection to the customer that they can evolve the strategy to fit their needs.

The “touch” methods of selling for local media, as opposed to the “self service purchase” of Google Adwords and its competition have been viewed by some in the Web2.0 world as a disadvantage. I think it creates an amazing opportunity to pull one from the Google Playbook.

There are couple certainties in the advertising world today.
1. Google isn’t going to send a salesrep to visit, or have an inside salesrep call on the local 5 store pizza, dress, toy, laser surgery, dentist, whatever chain of stores. You are.

2. Some percentage of those small to large localized businesses you call on will have a website and of those, the vast majority of them will have no idea how to properly use web services like AdWords or AdSense to either generate foot or phone traffic (the 2 Fs of brick and mortar) for their businesses or make some money from advertising.

3. Local traffic is worth more per click through than national traffic is.

Which creates a phenomenal opportunity for your company. Just as Google arbitraged its selling ability between its ability to monetize traffic and AOL and Myspace, why not use your sales force to arbitrage the ability of your salesforce to sell locally and all the Google Adsense/Yahoo/MSN networks to sell locally ?

You are already selling display and classified ads for the paper, or commercials for your TV station, why not expand that effort to include Search Engine Marketing ? Why not hook up with a local SEM expert and make that a service that you offer to your customers ? There is very little chance the local Pizza chain or Body Repair shop knows how to use SEM correctly and those that try more often than not waste a ton of money trying to figure it out. Why not offer it up as a service, even if they don’t buy ads for your newspaper or TV station ? In otherwords, you put yourself in the position to become the dominant force for local advertising in your markets, NO MATTER WHAT PLATFORM those ads appear on.

Why not buy a media planner that specializes in your market ? Or put together the resources to compete with them ? Selling locally is a core competency. Optimizing advertising in a comprehensive campaign is a skillset that all local businesses need and many don’t know how to find.

I did a small test. I used my Adwords account and set up an ad to sell Mavs tickets within a 10 mile radius of the American Airlines Center. I chose the simple options that Adwords presented and picked sports and take all 100 options that were presented. Common sense suggests that since I had already specified that i only wanted clicks within 10 miles, I would get local websites. The first site listed ..123india.com. Now i realize that Google will try to limit where it presents my ad to only those IP addresses that it thinks are local to me, but to a small business person trying to figure this out, it would be more than a little daunting.

That creates an opportunity to become the be all, end all media sales organization in your market and for your market. Why not go to Google, Yahoo, MSN and try to work out a deal to get a percentage of revenue for national placements ? You might get the agency 15pct, or possibly more. The 3 are so competitive, some would say Yahoo and MSN show signs of desperation, that they just might cut you a special deal to exclusively deliver the ads you sell.

For local ads, which would be a critical component of what you sell, why not expand what you currently use or partner with one of the big ad networks mentioned above to allow you to partner with local websites and blogs to sell ads for them ? When your salespeople call on them to see what their advertising needs are, they could also enroll them in your own localized “Google AdSense” program. Imagine the Dallas Morning News or Star Telegram network of Dallas Ft Worth based or relevant websites. It could actually become more relevant to your ad customers than your own newspaper website since the paper websites garner significant out of town readers while the local Pub featuring bands is going to be 99pct local.

Why not go to the local independent SportsPage or Free Weekly and become their sales organization ? In stead of beating your own head against the wall creating free morning dailies, why not co-opt their eyeballs ? They struggle with sales and hiring and retaining a salesforce, incorporate them into your product line. Its a much cheaper means of expanding eyeballs.

In this day and age, like Google, the advertising you sell doesnt have to be in one of your properties, it just has to be sold through you. Google doesn’t care where the eyeballs are at, as long as they are selling and delivering the ads to those eyeballs. Why should you be any different ? Instead of spending a fortune , or driving yourself nuts trying to get back the 1.9pct circ you lost, go grab eyeballs elsewhere.

Which leads to leveraging your content. In a for profit business, great content is supposed to be a driver of eyeballs. Continuously great content is supposed to drive loyal readers or viewers. Unfortunately, in this day and age of so many choices, our loyalties are diluted and often change. So rather than taking a your media vs the rest of the world approach, why not take the Google approach and co-opt other peoples traffic.
(OPT?). If great content, whether audio, video, text or pictures, is just a means of selling more advertising, does it really matter where the content appears, as long as you are selling the advertising around it or on the website that hosts it ?

Of course, we have seen this done with before in TV and Radio, but its always been on a limited basis, and for parties that are related or owned by a single entity. Why not remove all limitations ?

If the local weekly, free sports page or even local Band with a website agrees to let you sell their advertising, why wouldn’t you give them the opportunity to use some of your content ? Its no different an arbitrage than what Google does, except that its content based. You have content that you decided wont pay for the paper it would be printed on. Let another paper cover the print cost, while you sell their eyeballs. Let another website host your perishable, unused content in exchange for selling their eyeballs.
If it helps drive more eyeballs to them, its more money for you.

For the small websites, you can also pull a Google and set a very difficult to achieve check hurdle. With AdSense, until you earn $100, you don’t get paid. I can only imagine how much money Google has as an accrued liability for this category (do they accrue 100pct as a liability or capture some guesstimate as revenue that they adjust over time?), but i know its a lot. Your newly focused sales organization could do them one better by setting the hurdle at $100 dollars, but possibly setting the first $500 dollars as being an automatic advertising credit in your network rather than a cash payment.

This is a lot of hypotheticals, obviously. But in a nutshell, its about making owning the sale and delivery of advertising in your market the primary core competency of your business. Google, Yahoo and MSN think they can do to your local display advertising what they have done to your national advertising buys and Craigslist and the jobsites have done to classified. (the Newspaper Yahoo deal not withstanding).

From the outside looking in, I think newspapers and any local media organizations have to make a stand and go where you are strong and that is in face to face selling and knowing your market better than anyone. You have a local salesforce, they wont. However, you can create self service publishing and ad buying comparable to theirs that is geared towards your market, and complements your face to face selling. You might not be as efficient in monetization as Google, but most of your customers will never know the difference. All they will know is that you have earned their trust as the company that handles all their advertising and website ad publishing needs so that they can focus on selling Pizzas, laser surgery and cars. That is huge for any small business.

Just like Google Search created the foundation of traffic that led to their algorithms and Ad Sense network, your newspaper or TV station can create the foundation that led to the creation of your marketwide salesforce.

Why not ?

Tell me what you think

Learning from Tim Duncan

The Mavs Spurs game last night was another great game. Neither team is seemingly ever out of the game. The reason is simple. Each team has a player that is pure greatness. Watching Dirk is of course amazing. He does thing no other 7 footer can, and often punctuates possessions with a jumper that is so smooth that as the ball falls through the cords, you immediately think of Wesley Snipes line from White Men Can’t Jump: “Pretty, so Pretty”

Tim Duncan may not be quite as silky when it comes to shooting his jumper, but he has certainly earned “The Big Fundamental” nickname. This isnt a guy who gets tons of screens, or who comes off a pick and rolls for most of his points. This isnt a guy who amazes you with quickness or leaping ability. Tim Duncan is a player who more often than not is going 1 on 1 with a defender and knows exactly what angles to take to get the best shot and what angles to use in his shots. If any kid doesnt think geometry applies to basketball, watch Tim Duncan. Tim is the master of precision in angles and motion.

I would be lying if I didnt say that players and coaches in the Mavs organization don’t try to learn from Tim. We do. Every year he, like Dirk, adds something to his game that gives him an edge. Its what all the great ones do. Work hard to do what they do better, and to add something new each year.

I truly am a Duncan fan, any real NBA fan is. But, Im obviously a Mavs fan first and last and I can’t stand the Spurs. Judging by the Spurs fans reaction to me after the game last night, they aren’t big Mark Cuban or Dallas Mavericks fans either. I like that. Makes for great Rivalries.

So in the interest of helping future NBA players out there, and in maybe helping other teams possibly figure out TD just a little bit, I decided to post a video of the new move that Tim added last year, and has improved on this year. I call it the Duncan Chop. Its perfectly legal, which makes it postiively brilliant.. Its something every post player should add to their game.

Simply put, as Duncan turns over his left shoulder towards the basket, he “chops” away the defenders arm. It sometimes throws the defender off balance a little. It sometimes misdirects the defenders attention. Its subtle enough to give TD an edge. All in all its a great, great move. We all should learn from it. Here is a video of TD tearing us up with it last year.

CBS and Youtube – What wasnt said

CBS is rightfully proud of their success on Youtube. Copyrighted material has value. Now whether Youtube was responsible for ratings increase or not, is not something anyone can answer. An argument can be made, as many commenters have suggested, that they know longer have to make an appointment to watch TV or even program their DVRs. They simply go to Youtube to cherry pick the best parts of CBS’s programming.

That isnt necessarily bad. Contrary to popular belief, the value of these viewings lies not in promotion, but rather in getting paid for people viewing ads around the web based video content. I truly believe that what CBS is doing with Innertube helps attach people to programs and incents them to watch the shows on TV. Watching a full episode attachs you. You have made a committ to watch. That committment can extend to making an appointment to watch or TIVO the show., Watching clips on videohosting sites is cherry picking and preserves the users ability to not have to committ to the show and allows them to pick up on anything that captures the publics interest and they want to find out what the talk is about. That is the definition of viral right ?

But from a business perspective Sumner Redstone isnt going to let Viacom/CBS or any of his entities give somehting away for nothing. It always comes down to money and EPS. So the real question is which form of video earns the greatest amount of money. Right now the new money and easier money is on the web. CPMs can be comparable to network. For now. But that will change as a glut of video comes online and CPMs fall like a rock in the next 18 months.

But that wasnt the interesting stuff i read between the lines.
What was most interesting in the CBS press release was that theydidnt give credit to or even acknolwedge user uploaded content. If you are going to celebrate Youtube and its value, isnt that supposed to be at its heart ? What the individual users do with content ?

This isnt a knock on Youtube or CBS in the least bit. It is a leading indicator on what to expect from CBS and other big media companies.

Its about what CBS wants online, not what users want online. Catfight ? only if we say so. Something go not right on the air ? Youtube, take that down.

Thats how I read the release.

And one more thing. I want to know how many CBS/Viacom employees are among those 20k subscribers and why they used Youtubes public, and unquestionably inflated view numbers (again, not a knock on Youtube, just a reality. Views are the equivalent of hits. not reliable).

When big media figures out how to co opt social networks, things change.

Is this BusinessWeek or The Enquirer ?

This is what I said in an interview with CNet when asked whether i was interested in the LA News Service.

” “They are the first company to cover news in high definition in LA,” Cuban said via e-mail. “That’s very valuable to me.”

This is what Businessweek turned it into:

“Verbally bashing YouTube is apparently not enough for billionaire “blog maverick” Mark Cuban. Now the Dallas Mavericks owner and tech entrepreneur is reportedly considering acquiring the independent news agency that’s suing the video-sharing site for copyright violations. The brash move, if it goes through, would undoubtedly escalate Cuban’s war of words with Google (GOOG), which closed its $1.65 billion stock purchase of YouTube Nov. 13. In fact, it could force Cuban to put his money where his outspoken mouth has been.”

and
“By becoming involved in a Google fight, Cuban risks exposing himself to embarrassment in addition to costly legal fees. After all, with all the noise he has made on his blog, Cuban is already facing a big “I told you so” from Google if YouTube turns out to be wildly successful. The more invested he becomes in seeing YouTube lose a copyright battle, the more vulnerable to bad publicity Cuban becomes if YouTube wins. The headline is almost too obvious: “Cuban, Who Is Crazy Now?”"

Now that is reporting at its best isnt it ? No speculation there at all.

and this is the actual email chain with my response to his original email first

” And tell me more about what you can do and what it would cost. I’m
interested”
>
>
> On Mon, 30 Oct 2006 1:54 pm, Robert Tur wrote:
>> Dear Mark,
>>
My name is Bob Tur (The newsman that’s taken YouTube to Court) and
I’m credited with creating modern helicopter news-gathering. I worked
with Dan Rather on occasion from KCBS TV in Los Angeles.
During my 26 years in Los Angeles as a reporter, pilot, and camera
operator, I broke nearly every major breaking news story there was,
and for the past three years I have been producing HD News from
around the globe for VOOM’s HD News operation. I want to work for you
and Dan. I have a complete HDCAM 750 system and editing here in Los
Angeles. How about a Los Angeles Bureau?

Sounds like serious M&A talk doesn’t it ?

Or as I told Forbes when asked about the topic… ” I dont have anything to say, its too much fun reading all the speculation”

Which actually means, the more they write, the more fun it will be to write this blog post defining the reality of the situation.

I have no interest in buying a company in order to sue Google. If thats something I wanted to do, I would have plenty of opportunity to do so using our movies and TV Shows. We have sent takedown notices. We have gotten email and IP Addresses. We know that Youtube makes a ton of money of the advertising around infringing content. We know how they use their adscripts with doubleclick to serve ads by category and track all ads served by who uploaded the content. We checked the scripts when UFC ads popped up around the WEC videos we found. (cagefights from HDNet.) UFC ads above WEC infringing videos seemed too much of a coincidence Its all right there with a viewsource of a youtube page. Why look ? Because of curiousity about the process. Not because I want to sue.

Im not out to get Youtube or Google. If anytihng I am out to get the DMCA. I think its a terrible law.

As I told CNet. Copyright Law and in particular the DMCA has been something I have been involved with since 1995. Some of my fondest moments in business involve fighting the RIAA and their perspective on the DMCA. My worst moment in business was not fighting the DMCA harder. The last speeches I gave while at Broadcast.com were all about how terrible a law it would be.

There is so much stupidity in that law, including the safe harbor acts. You should have heard me back in the day . This is what Webcasters face under the DMCA
“2. Sound recording performance complement. A webcaster may not play in any three-hour period…

• more than three songs from a particular album, including no more than two consecutively, or
• four songs by a particular artist or from a boxed set, including no more than three consecutively.

This limit is called the “sound recording performance complement.”"

The same people that brought you the safe harbor provisions brought you the above. Those of you who want to argue about it “being different now” for copyright law. Where are you when it comes to the above stupidity in law ? Do you realize that you cant have an all Elvis, or all Led Zeppelin Webcast ? You cant play a CDin a webcast radio station ? Dumb, dumb , dumb shit like that. Check out the RIAA site for more greatest hits

So my picking on the DMCA and how its applied is old news.

Feel free to check out a search <Mark Cuban DMCA -Youtube> which has a ton of examples dating back years and years. Or you can check out pre Google _ Youtube mentions in my blog

You see, the thing about a blog is that its a great place to write about things you are interested in. Its a great place to generate discussion.
Im interested in Copyright and how the laws around it are enforced and have been for a longtime. I dont claim to be an expert , but its a topic I find interesting. And probably always will.

Check out my mini !

Im an investor in a company called Goowy Media. Its based in San Diego and is run by a bunch of smart guys who decided they were tired of everything on the net being built around HTML. So they decided to take Flash and turn it into a desktop environment. Their first product was Goowy.com . This past week they made a huge step forward when they introduced Yourminis.com .

Yourminis can be a lot of different things. A personal desktop. A Personal Homepage and more. But where Yourminis really shines is the ability to publish a personal page. Check out what I did to create a public personal homepage. It allows me to share (or not) things that Im doing that might be of interest to others. Kind of like myspace or facebook, but geared more towards sharing information rather than Which Victoria Secret Model Im most like. On my yourminis page I have some of the stocks I track. The searches and blogs I track. Some personal pictures. A video of the day from some of the fun things that people send me.

What makes Yourminis publishing work really well for me is that it comes with a long and expanding list of widgets that make adding pictures, videos, searches, whatever to the page super easy. Plus it now has Firefox and IE7 extensions, which lets me capture a search I do or anything with an RSS or Calender or just about any microformat I encounter and quickly and easily add it to my page.

The site has only been up a week, so there is lots of upside for the project. Check out Yourminis.com, set up your own page, let us know what you think. And of course, check out my page and add some feedback

The LA Riots Videos vs Gootube – The Actual Filing

To say the stakes are huge would be an understatement. The filing references a very interesting point. If you are under the safe harbor rules, and merely a conduit to others hosting files, how in the world could you give yourself a license to those files ? In other words, Youtube owns what you just uploaded, and can do anything they want with it, without limitation, but at the same time under the DMCA they want to be considered only a conduit that falls under the safe harbors .

They cant have it both ways.

gonna be interesting !

NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION

Francis C.J. Pizzulli (State Bar No. 67151)
718 Wilshire Blvd.
Santa Monica, CA 90401
Telephone: (310) 451-8020
Fax: (310) 458-6156
E-mail: pizzullilaw@yahoo.com
Attorney for Plaintiff
Robert Tur d/b/a Los Angeles News Service
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ROBERT TUR d/b/a LOS ANGELES
NEWS SERVICE,
Plaintiff,
v.
YOUTUBE, INC.,
Defendant.
_________________________________
Case No. CV 06-4436-FMC (AJWx)
NOTICE OF MOTION AND MOTION
FOR SUMMARY ADJUDICATION
OF DEFENDANT’S FIRST
AFFIRMATIVE DEFENSE
OF DMCA SAFE HARBOR;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
ROBERT F. TUR AND
ACCOMPANYING EXHIBITS
Fed. R. Civ. P. 56
Date of hearing: December 4, 2006
Time: 10:00 a.m.
Court: The Honorable
Florence-Marie
Cooper

2
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION

PLEASE TAKE NOTICE that on December 4, 2006 at 10:00 a.m. or as
soon thereafter as counsel may be heard, Plaintiff Robert Tur will move the Court
for a partial summary judgment and/or, in the alternative, an order to specify
material facts that appear without substantial controversy in connection with
Defendant YouTube’s First [Affirmative] Defense (DMCA Safe Harbor). In
particular, Plaintiff Tur seeks an order specifying that, contrary to the requirement
of 17 U.S.C. §512(c)(1)(A), YouTube does receive a financial benefit directly
attributable to the infringing activity alleged herein, in a case in which the service
provider has the right and ability to control such activity, and therefore, that
Defendant YouTube is barred from relying upon the DMCA safe harbor in this
case.
This motion is made following the conference of counsel pursuant to L.R. 7-
3, which took place on October ___, 2006.
This motion is based upon the attached Memorandum of Points and
Authorities, the Declaration of Robert Tur and accompanying exhibits, and
pleadings and papers on file herein, along with the accompanying Statement of
Uncontroverted Facts and Conclusions of Law, Fed. R. Civ. P. 56(d), in Support of
Plaintiff’s Motion for Summary Adjudication of Defendant’s First Affirmative
Defense of DMCA Safe Harbor; and [Proposed] Order Specifying Material Facts
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1
Without Substantial Controversy and Conclusion of Law Re: First Defense of
DMCA Safe Harbor.
Dated: November ___, 2006
_____________________________
Francis C. Pizzulli
Attorney for Plaintiff Robert Tur,
d/b/a Los Angeles News Service

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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
There can be no dispute that serious and repetitive infringements of Tur’s
copyrighted works are displayed on Defendant’s website, YouTube.com, on a daily
basis. As is evident from YouTube’s publicity campaign, directed against its
reputation as an, e.g., “bootleg-heavy site,”1 YouTube’s first and paramount
defense is the safe harbor provided by 17 U.S.C. §512(c)(1) of the Digital
Millennium Copyright Act (“DMCA”), more particularly, the Online Copyright
Infringement Liability Limitation Act (“OCILLA”) portion of the DMCA. Despite
the potential complexities of this case, however, the First [Affirmative] Defense of
DMCA Safe Harbor is relatively simple to adjudicate. That is because one of the
three essential conditions for a putative Internet service provider to escape direct,
contributory or vicarious liability for undisputed copyright infringement, occurring
on its website cannot be satisfied as a matter of undisputed fact. The source of the
undisputed facts is party admissions derived from YouTube’s very own website.
Adjudication of this motion should therefore streamline discovery and
further proceedings in this case.
1 Los Angeles Times, ___ [date], ___ [page], Fed. Evid. R. ____.
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SUMMARY
The safe harbor immunity provided by 17 U.S.C. §512(c)(1) of OCILLA is
not met by YouTube with respect to the infringements of Tur’s works appearing on
YouTube.com because YouTube receives a financial benefit in the form of banner
advertising directly attributable to the infringing video clips. See, e.g., Exhibits
___.
BACKGROUND
Plaintiff Robert Tur is a pioneering television journalist who, in connection
with his Los Angeles News Service, has obtained numerous copyright registrations
for segments of newsworthy videotape footage.
Plaintiff’s tape library of over 10,000 hours includes works such as Tur’s
first-on-the-scene tracking of the ignominious 1994 freeway chase of O.J. Simpson
(PA-733-108). In 1992, Tur reported exclusively over the intersection of Florence
and Normandie the shocking attack upon Reginald Denny at the start of the 1992
Los Angeles riots (PA-576-704).
Over the past two decades, Tur has helped the copyright owners of
newsworthy works generally in successfully litigating limitations to the assertion
of “fair use” as an excuse for pirating news organizations’ copyrights. See, e.g.,
Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002);
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28
Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997);
Los Angeles News Service v. Tullo, 973 F.2d 791 (9th Cir. 1992).
Tur filed this complaint well before any news of a pending $1.6 billion
acquisition of Defendant YouTube by Google, Inc. Rather, in light of MGM, Inc.
v. Grokster Ltd., (___ U.S. ___, 125 S. Ct. 2764 (2005)), Tur was called upon to
file this complaint, a la Cincinnatus, to address a new threat to news media
copyrights.
YouTube operates a web site where users may post audiovisual content for
viewing via “streaming” through the YouTube website. YouTube Answer, ¶14.
Defendant YouTube was started in approximately February, 2005, and its service
was publicly launched December 15, 2005. YouTube has grown into one of the
most popular video services on the Internet. Approximately 65,000 clips are
uploaded to the YouTube service per day, with more than 100 million views per
day of videos on YouTube.com. Id., ¶¶17-18 and 35.
Tur’s copyrighted works are routinely infringed by users of the YouTube
service, and thereby with the direct, contributory and/or vicarious liability of
YouTube. See Tur Declaration.
YouTube attempts to immunize itself from liability under MGM, Inc. v.
Grokster Ltd., supra, principally by relying upon 17 U.S.C. §512(c)(1).

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YOUTUBE DOES NOT QUALIFY FOR THE DMCA/OCILLA SAFE
HARBOR, AS A MATTER OF LAW, BECAUSE OF THE DIRECT
ADVERTISING BENEFITS IT OBTAINS FROM
THE INFRINGEMENTS OF TUR’S WORKS.
YouTube’s first defense of DMC/OCILLA safe harbor is based upon
§512(c)(1), as follows: r />(c) Information residing on systems or networks at direction of
users.
(1) In general. A service provider shall not be liable for
monetary relief, or, except as provided in subsection (j), for injunctive
or other equitable relief, for infringement of copyright by reason of
the storage at the direction of a user of material that resides on a
system or network controlled or operated by or for the service
provider, if the service provider–
(A) (i) does not have actual knowledge that the
material or an activity using the material on the system or network is
infringing;
(ii) in the absence of such actual knowledge,
is not aware of facts or circumstances from which infringing activity
is apparent; or
(iii) upon obtaining such knowledge or
awareness, acts expeditiously to remove, or disable access to, the
material;
(B) does not receive a financial benefit directly
attributable to the infringing activity, in a case in which the service
provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as
described in paragraph (3), responds expeditiously to remove, or
disable access to, the material that is claimed to be infringing or to be
the subject of infringing activity.
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YouTube, however, cannot satisfy the necessary condition of §512(c)(1)(b).
As is manifest in Exhibit 1-___ attached hereto, YouTube applies banner
advertising to the locations on its website where infringing copies of Tur’s works
have been uploaded and are displayed. In addition, YouTube advertises in
juxtaposition to the infringing clips of Tur’s works, promotions for other
advertises in juxtaposition to the infringing clips of Tur’s works, promotions for
other YouTube site locations, as well as promoting its branding. See Tur Decl. and
exhibits.
YouTube admits in its answer what is obvious from the attached screencaptured
exhibits, i.e., that it sells advertising on its Website. Answer, ¶20. See
also, e.g., Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 858 (C.D. Cal. 2006)
(broad definition of “direct financial benefit” would encompass even a “future
hope to ‘monetize,’ citing 4 Nimmer on Copyright § 12.04[A][1] (2005)
(commenting on A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.
2001))).
Further, YouTube further admits that, in effect, that it “has the right and
ability to control such [infringing] activity”, within the meaning of §512(c)(1)(B)
by virtue of its online User Agreement. In relevant part, the User Agreement,
which is entered into electronically by each user of YouTube, grants and entitles
YouTube as follows:
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NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
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. . . .hereby grant[s] YouTube a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, prepare derivative works of, display, and perform the User
Submissions in connection with the YouTube Website and YouTube’s
(and its successor’s) business, including without limitation for
promoting and redistributing part or all of the YouTube Website (and
derivative works thereof) in any media formats and through any
media channels. [You] also hereby grant each user of the YouTube
Website a non-exclusive license to access [your] User Submissions
through the Website, and to use, reproduce, distribute, prepare
derivative works of, display and perform such User Submissions as
permitted through the functionality of the Website and under these
Terms of Service….
Tur Decl., ¶ 7.
Thus, given YouTube’s inability to comply with §512(c)(1)(B),
YouTube should be precluded from relying on a safe harbor defense. Such
an adjudication, pursuant to Fed. R. Civ. P. 56(d), will substantially
streamline discovery, pretrial, and trial proceedings in this case. For
example, partial summary judgment/summary adjudication of the First
Defense will obviate or truncate substantial discovery and issues otherwise
pertinent to the safe harbor defense, such as:
1. Whether YouTube qualifies as a §512(k) service provider;
2. The timing and/or extent of the actual knowledge of YouTube
that the registered works were being infringed;
3. Whether and when, and to what extent, YouTube was aware of
the facts or circumstances from which infringing was or should be apparent;
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4. Whether and when, and to what extent, upon obtaining such
knowledge or awareness of the infringing activity, YouTube has acted
expeditiously to remove or disable access to infringing material;
5. Whether an alleged “take-down procedure”, in the context of
YouTube’s business-operational model, qualifies as a meaningful take-down
of infringing material if, as with Tur’s notice of infringements in his
complaint, the alleged take-down is immediately followed by an even
greater number of infringing uploads of the cited work on a continuing
basis.
6. Whether YouTube qualifies as a storage-at-the-direction-ofusers
service provider, within the meaning of §512(c), where the YouTube
service manipulates, categorizes, sorts, and promotes the audiovisual data
uploaded by its users, as well as to link and embed video clips with other
sites.
Thus, it would be an appropriate use of Rule 56(d) to adjudicate the
First Defense. As explained in Boston Scientific Corp. v. B. Cordis Corp.,
422 F. Supp. 2d 1102, 1106 (N.D. Cal. 2006):
Plaintiffs’ motions do not dispose of the entire case – they
merely prevent Cordis from asserting anticipation and priority as
affirmative defenses. Accordingly, the Court regards the motions as
motions for partial summary judgment.
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Although motions for partial summary judgment are common,
Rule 56 of the Federal Rules of Civil Procedure, which governs
summary judgment, does not contain an explicit procedure entitled
“partial summary judgment.” However, inherent in Rule 56 is
authority of the District Court to grant partial summary judgment, i.e.,
on a particular claim or a particular affirmative defense, even if doing
so would leave other triable issues.
Therefore, the motion should be granted.
Dated: November ___, 2006 Respectfully submitted,
_____________________________
Francis C.J. Pizzulli
Attorney for Plaintiff Robert Tur
d/b/a Los Angeles News Service
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DECLARATION OF ROBERT TUR
I, Robert Tur, declare as follows:
1. I [along with Marika ________ and __________] am an owner of the
Los Angeles News Service (“LANS”).
2. LANS is a duly accredited news gathering and reporting organization,
which produces video and audio tape recordings of newsworthy events.
3. LANS both operates and contracts to other news organizations and
licenses and sells news video, videotapes, photographs, and other products used by
other news operations for all media, including television, cable, motion picture,
Internet and print media.
4. I am the owner of, inter alia, the following registered copyrighted
works:
a. PA-576-702: “Beating of man in brown hatchback with
rescue;”
b. PA-576-703: “Beating of man in white panel truck;”
c. PA-839-603: “Earthquake;”
d. PA-576-704: “Beating of Reginald Denny”, and
e. PA-862-544: “North Hollywood shootout.”
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Each of these five works (collectively, “Infringed Works-A”) has b
een uploaded
on the YouTube website, YouTube.com, both before the filing of the complaint in
this case, after service of the complaint on YouTube, and presently.
5. At no time have I given an assignment, license, or permission of any
kind to YouTube or to any of its users who have uploaded my copyrighted works
onto YouTube.com.
6. A representative set of infringements currently ongoing of my
Infringed Works-A include Exhibits 1-___, attached hereto. These exhibits are
true and correct copies of downloads of YouTube.com taken on ________, 2006.
Each of them shows a frame from one of my Infringed Works A juxtaposed against
the following types of advertising: (a) banner advertising – such as for NetFlix;
(b) promotion of other YouTube.com videos (on the right side of the screen
captured); (c) promotion/branding of the YouTube.com logo and name (at the
upper part of the screen captured).
7. At the YouTube.com website is the User Agreement, which must
automatically be accepted electronically by each user. Section 5.B of the User
Agreement states in relevant part:
…you hereby grant YouTube a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, prepare derivative works of, display, and perform the User
Submissions in connection with the YouTube Website and YouTube’s
(and its successor’s) business, including without limitation for
promoting and redistributing part or all of the YouTube Website (and
14
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28
derivative works thereof) in any media formats and through any media
channels. You also hereby grant each user of the YouTube Website a
non-exclusive license to access your User Submissions through the
Website, and to use, reproduce, distribute, prepare derivative works of,
display and perform such User Submissions as permitted through the
functionality of the Website and under these Terms of Service….
The foregoing facts are within my personal knowledge, and I could
competently testify to them.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed this 13th day of November, 2006 at Santa Monica, California.
_______________________
Robert Tur
15
NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION
1
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over
the age of 18 and not a party to the within action; my business address Boulevard, Santa Monica, California 90401.
On November 13, 2006, I served the foregoing document described as
NOTICE OF MOTION AND MOTION FOR SUMMARY
ADJUDICATION OF DEFENDANT’S FIRST AFFIRMATIVE
DEFENSE OF DMCA SAFE HARBOR; MEMORANDUM OF
-POINTS AND AUTHORITIES; DECLARATION OF ROBERT TUR
ANDACCOMPANYING EXHIBITS FED. R. CIV. P. 56
on the interested parties in this action by placing a true copy thereof, enclosed in a
sealed envelope, addressed as follows:
BY U.S. MAIL I placed such envelope, with postage fully prepaid thereon,
in the United States mail at Santa Monica, California.
X BY PERSONAL SERVICE / FAX. By stipulation of counsel, papers in
connection with this motion are deemed personally served upon Defendant
YouTube, Inc. on the day of fax transmission thereof prior to 5 p.m. PST.
Claire E. Goldstein
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Fax: (650) 802-3100
I declare under penalty of perjury under the laws of the State of California
that the above is true and correct and that this declaration was executed on
November 13, 2006 at Santa Monica, California.
__________________________
S. Hathaway

Welcome Back Dan Rather !

Its an exciting day tomorrow for myself, Dan Rather and HDNet. At 8pm EST Dan Rather returns to TV with the premiere of Dan Rather Reports on HDNet . I can’t wait to see it. Like every one else, I will be watching it for the first time.

When Dan and I first met going on a year ago, we had no idea of we would hit it off. All i knew of Dan was what I saw on the CBS News and on 60 Minutes. I didnt have any preconcieved notions of what he would be like, I was curious to find out more. To say we hit it off during the first meeting would be an understatement. Beyond realizing that I was sitting with a man who had been in and around every major news event of the 2nd half ot the 20th century, Dan was a living encyclopedia of those events and more. It didn’t take me long to realize this man has forgotten more about history then I would ever know.

As we talked more, he quickly moved away from what he had done, to what he wanted to do. He wanted to do news. Not read a teleprompter. Not review and present stories others have written. He wanted to get out and do the work himself. What became clear to me was that this wasn’t a TV Icon looking for a last hurrrah. This is a man with the heart , spirit and energy of a 25 year old that was out to prove that doing news the old fashioned way wasn’t a bad thing. It was a good thing. It was a reason the movie Good NIght and Good Luck did so well we agreed. We absolutely were on the same page.

We agreed that news had devolved to segments of “find the missing blonde” or whatever story of the moment that in the past would have been tabloid fodder, but was now the center of attention for cable and network news.

We also agreed that the time was right to change all of that. To find the stories that people might care about, without regard to what ratings might be or what advertisers might be scared off. As Dan says “to let the work speak for itself”

For the past few months Dan has been all over the globe. Putting together a team. Researching stories. Interviewing. Doing News. Being a journalist.

I only know the topic Dan will be covering tomorrow night. I haven’t seen the show yet, and I haven’t asked to see the show. Im excited to watch it on HDNet just like everyone else.

Hopefully lots of you will watch it and let me know what you think.

If you dont get HDNet, you can get information here Or you can just call your cable or satellite provider and ask for it. All you need is an HDTV and a desire to experience what we hope will be a big step forward in news.

Oh , and 1 more thing. Its shot 100pct in 1080i, with enhanced audio, so not only will the content be great, it will be News like you have NEVER see it before.

Dan has been on a non stop roadshow talking to media around the country the last few days, and I wanted to read the results.

The New NBA Ball P2

So after a week of watching games with the new ball, I still think it was the right business move for the NBA. The NBA is on a business roll and our leadership continues to be consistent in their decision making abilities.

IN terms of the impact of the ball on the game itself. Its clear that the ball impacts all teams equally. Its also clear that it doesnt impact all playes equally. Some players have really benefitted from the new ball, while others have suffered. While i think players will make adjustments over the course of the season, and players “muscle memory” of the old ball will disappear and be replaced with a natural comfort of the new ball, its far from there yet.

The players who seem to benefit the most are guys who make their living with jumpers in the 10 to 15 foot range. The ball doesnt come off the rim as hard as the old ball, which has led to shots that I think would have bounced out in the past, staying in now. Players with soft touches on short jumpers are loving the new ball.

On the flipside, players, particularly point guards who are great passers instinctually, where a split second is the difference between an amazing pass or a turnover, or where a quick move to the basket with a quick release to the rim to get the ball between , around or above 7 footers appear to have suffered the worst. Why ? Because you have to know exactly where the ball is and how it will bounce to make an off the dribble no look bounce pass between 2 defenders to a cutter for a layup or dunk. Players who have been in the league for years have gotten used to the old balls and trusted where it would be and how it would feel coming off their hands and how it would bounce. Its muscle memory combined with instincts perfected over many, many years of practice. Even with all the ball to ball variances of the leather ball, it still could be trusted to be where you wanted when you wanted it while dribbling.

The new ball can also be trusted to be where you want it, when you want it. Its just not the same place as the old ball. That is creating problems.

Watching Nashie last night, I felt bad for him. Steve knows the game so well, his passes are all about precision and timing. He knows where the game is going before the game does. He doesnt have to think it through. He just knows. It just seemed last night that there were times he had to hesitate to make sure the ball was there before he could make the pass he wanted to make. I could be wrong of course, that was my perception. That hesitation was all our quick guards needed to get in the passing lane, or for a guy to get a hand down to tip a bounce pass, it even seemed one time he had made eye contact with a guy on a pass, but when it didnt come immediately like the player expected, he looked away, a split second later the ball was there and the player wasnt looking.

I saw similar problems with our guards the past couple games on quick power drives to the basket. Devin Harris has lost the ball several times while driving hard for layups. Its not that the ball slipped out of his hands, its that it wasnt where he expected it to be when he started to explode up to the basket. The same thing happened to Jason 1 time last night as well.

Is this a long term problem ? No. Its a problem these players can adjust to , but it wont be easy for them. The interesting thing will be if rookies and young players have relatively fewer turnovers because they never had to “deprogram” themselves from the old NBA ball.

The other place where adjustments will have to be made will be on dunks. Guys are definitely adjusting to the new ball. They are still trying to figure out when they can dunk with 1 hand or if they always have to use two. For guards, whose hands arent the size of 7 foot guys, we may not see as many contested dunks at the end of games when the ball is slicker. Personally, I dont think thats a bad thing. If not being able to dunk in traffic means players get craftier and more dependent on skill, thats good for the game.

Of course, this is all just personal observation. Thats fun for bar talk, but Im not going to depend on it. So we are working on shooting percentages from locations on the court and by type of shot. Fortunately, I have several years worth of this data, so it will be easy to compare results a few weeks into the season.

The new ball means adjustments, but then again, so does every change made in the game. It doesnt matter if its the ball, the rules, the dress code. A business that doesnt evolve to meet the demands of their customers, doesnt excel.

what have you seen with the new ball so far ?

Im not saying Google shouldn’t have bought Youtube. Im just saying that maybe only Google was crazy enough to take on the responsibilities of such a deal.

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