He wouldn’t be involved if he didn’t smell money and blood.
Whatever analysts and the blogosphere might think of Microsoft walking away from it’s offer for Yahoo!, we are happy it has. Primarily, we think the deal would likely have killed off both companies. This is better for Yahoo! and Microsoft, their shareholders (including us), and the Internet industry as a whole. And we are glad it is over this early instead of a bloody fight that drags on for months and years. Now it is time for both sides to get back to business and battle where it matters, the marketplace.
We don’t doubt for a moment that Microsoft won’t be back. Like the man in the ten gallon hat, it will bide its time and take the risk that Yahoo! fails to deliver the numbers it has promised to shareholders over the next few quarters and years. It will also use its leverage to make life as difficult for Yahoo! in the mean time.
This video is likely entertaining only to folks who are forced to live with Microsoft hovering over Yahoo!, who are into video mashing and editing, or who like making fun of the first two groups. Even if you aren’t in those groups, watch anyway; it is short enough for everyone to watch and ponder.
I’ve wanted to post and comment on this video since I saw it a few weeks ago. Now I get my chance, as I work through some of my copyrights outline (test tomorrow).
I assume the Charlie Rose show is copyrighted. I also assume, Charlie Rose or the owner of his show can make out a prima facie case (this means they showed infringement of their copyrighted work). In that case, the maker of this video will need to argue a Fair Use defense under section 107 of the copyright statute.
Section 107 of the copyright act (usc title 17, section 107) provides four factors for courts to assess a fair use claim. It requires a court to consider: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
First, a court must consider the purpose and character of the use, analyzed along two axes: commercial versus non-commercial; and the superseding object of the original versus transformative uses. The commercial nature of a work is generally not dispositive and is given very little weight. Courts frequently provide this quote from an old case: “no man but a blockhead ever wrote, except for money.” It isn’t entirely true, but sums up U.S. courts’ opinions about how they regard this requirement. Along the second axis, the video appears to be transformative because, to me, it appears to “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Is it a parody? In which case it is given more deference. Is it only satire? If so, it gets less deference. I think that because the video’s creator adds another meaning, that of this philosophical conversation with self, it likely passes as transformative.
Second, the nature of the copyrighted work is as a published video of non-fiction. I’m assuming that the video was taken from archived copies of the Charlie Rose show. This part of the analysis matters very little unless it was an unpublished work that was intended to be sold for money. This was the case in the late 1970’s when the Nation Magazine scooped the juicy details that were to the “very heart” of former President Gerald Ford’s memoirs of his time in office. The Nation acquired a copy of the manuscript before it was published, and caused Time Magazine to cancel out on the advance it had paid to have first dibs on a review. D’oh! Here, if the video clips were taken from previously broadcast Charlie Rose episodes, Obi Wan Kenobi is not needed to say “There is nothing here. Move along.”
Third, a court will look at the amount ans substantiality of the portion used in relation to the copyrighted work as a whole. It seems this video takes very little of two separate shows. It is a toss-up how a court will come down on this. A court will not let someone take the heart of a work, as in the Nation Magazine scooping Gerry Ford’s story, even though it used a few hundred words of a 300 or more page book. I think it is unlikely they would consider this went to the heart of the Charlie Rose episodes in question because it was changed so much so that I’m not sure what was discussed beyond Yahoo! and Microsoft.
Fourth, a court will look at the effect upon the market value of the original, copyrighted work. It isn’t clear to me, but I doubt it will have much impact. The new video does not substitute for the original. In fact, I think it might lead people to want to view the shows to see what was said originally.
All said, I think this video will likely qualify as fair use.
I took a few minutes here and there over the past week to do some house keeping on this blog.
Open ID is an open standard that lets you use one account to log in across the web. Many web sites are starting to use it and the big guns (Y!, G, MS) have put their weight behind it.
If you choose to use Open ID through your Y! account, then the most important thing for you to do is to set your security image. That way you know you are on the Y! site when you give your password. Make sure it is something unique to you. I use my wife’s beautiful face on one computer and a very cool and unique photo of a flower on another.
2) Comments: I didn’t realize you needed an account to leave comments. I have since opened up comments to anyone. All you need to do is give your nickname (such as ‘db’) and an email address. Only your nickname is publicly available. Your email is confidential and available to only the admins for this blog (me and my wife).
3) Random Stuff: I also made some other random updates to the interface and how the page looks, now use tags, and include My Blog Log.
My wife sums up events surrounding my company this way: If you were a small time farmer having a tough time making a living in the 1930’s on a hot Texas prairie and a man in a ten gallon hat offers a big bag of cash for your land that seems too good to be true, close the door on him. You know there’s oil under those dusty fields.
As Y! shareholders, we donâ??t think the board should accept Microsoft’s offer. The deal undervalues the company. Yang and Decker took over mid-2007 and you cannot expect them to make an immediate, direct impact so soon. Hollywood is gone; Silicon Valley is back. Think of Yahoo! as an aircraft carrier trying to make a turn; it will do so slowly. More importantly, the fundamentals are strong, the company is profitable, and most recently met its numbers, even if overshadowed by the company down the road (which missed its numbers last quarter). Tech companies can and do make comebacks. Apple is a prime example. They were not cool until Steve Jobs returned and they started innovating again.
In addition, we do not want Microsoft shares if it is making such a power play for a company that will not fit well within its company. Consider the difference in philosophy regarding open source software.
Note: Before you get out of control, this is only a comment on behalf of our family, not for my employer – I don’t have enough information to ever comment on its behalf. I really do know nothing.
I’m just glad these changes don’t involve a move in any way. We’re keeping our little one bedroom apartment. 😀