On Tuesday a consortium of technology companies, including IBM (IBM), will launch a new initiative designed to help shield the open-source software community from threats posed by companies or individuals holding dubious software patents and seeking payment for alleged infringements by open-source software products.

The most novel feature of the new program, to be known as Linux Defenders, will be its call to independent open-source software developers all over the world to start submitting their new software inventions to Linux Defenders (Web site due to be operational Tuesday) so that the group’s attorneys and engineers can, for no charge, help shape, structure, and document the invention in the form of a “defensive publication.”

Linux Defenders will then also see to it that the publication, duly attributing authorship of the invention to the developer who submitted it, is filed on the IP.com Web site, a database used by the U.S. Patent and Trademark Office and other patent examiners throughout the world when they are trying to determine whether a proposed patent is truly novel, as any patentable invention is supposed to be.

In effect, the defensive-publications initiative mounts a preemptive attack upon those who would try to patent purported software inventions that are not truly novel — i.e., innovations that are already known and in use, though no one may have ever previously bothered to document them, let alone obtain a patent on them, a process usually requiring the hiring of attorneys as well as payment of significant filing fees.

“The idea is to create a defensive patent shield or no-fly zone around Linux,” says Keith Bergelt, the chief executive officer of Open Invention Network, the consortium launching the site. The core members of that group, formed in 2005, are IBM, NEC, Novell (NOVL), Philips, Red Hat (RHT) and Sony.

OIN’s Linux Defender program is being co-sponsored by two of the most prominent guardians of the free- and open-source software community, the Linux Foundation in San Francisco and the Software Freedom Law Center in New York. In addition, the site is being hosted and “co-developed” by New York Law School, which has, since June 2007, been sponsoring, in coordination with the U.S. Patent and Trademark Office, its own well-received, complementary project, known as the Peer to Patent Community Patent Review site. That site solicits assistance from the open-source community to produce evidence that an invention for which a patent is currently being sought was actually already known or in use prior to the patent applicant’s filing.

So-called free- and open-source software is software that, by its licensing terms, confers certain “freedoms” upon users that are usually forbidden by conventional proprietary software companies, like Microsoft. These freedoms include the right to see the software’s source code, alter it, copy it, and redistribute it. The best known open-source product is Linux, or GNU/Linux, a complete open-source operating system that has become quite popular among Fortune 500 corporations for use on their data-center servers. Patents threaten the whole free-and-open-source eco-system, however, in that none of the key open-source freedoms can be practiced if an outsider can establish that a given piece of software infringes a valid patent he holds.

The Linux Defenders program is largely the brainchild of Bergelt, who took over as Open Invention Network’s CEO this past February. The program also reflects a new, more proactive role Bergelt envisions for OIN than the group has played in the past.

Until now, OIN’s purpose has been one-dimensional: to acquire a defensive portfolio of strategically crucial patents, which OIN makes available, royalty free, to any company that reciprocally agrees not to assert any of its own patents against the Linux community. (About 50 companies have already entered into such formal agreements with OIN, of which the best known are probably Google (GOOG) and Oracle (ORCL).) The implicit threat is that if any outsider — a Microsoft, (MSFT) say, which declared publicly in May 2007 that open-source software then violated 235 of its patents — were to ever bring a patent suit against a player in the Linux community, that outsider would, in turn, risk countersuit by OIN or its member companies asserting infringement of their own patents by the outsider.

While this IP-acquisition program remains a central one for OIN, Bergelt says, OIN will also now seek to “think more creatively” about other ways to protect and foster Linux’s development by means of “relationship-building” and “information-sharing,” including efforts to explain the importance of open-source and open-platform approaches to the media, patent officials, and competition authorities, among others.

Befitting someone who plans to tackle this ambitious range of goals, Bergelt has a background that is more diverse than that of his intellectual-property lawyer predecessor, Jerry Rosenthal, who, prior to heading OIN, had served as IBM’s IP-licensing chief. Though Bergelt is also an IP lawyer, he is, in addition, an entrepreneur and diplomat. Immediately prior to joining OIN, Bergelt was the president and CEO of the intellectual-property focused hedge fund Paradox Capital. Before that, he was a senior advisor to private-equity fund Texas Pacific Group (now TPG); headed the strategic intellectual asset management unit at Motorola; and co-founded the strategic intellectual asset management unit within the electronics and telecommunications group at SRI Consulting in Menlo Park. Earlier still in his career, he spent 12 years as a U.S. foreign service officer, including a posting to the U.S. Embassy in Tokyo, where he negotiated IP rights agreements with certain Asian countries, including China.

The Linux Defenders program will actually have three components. The first will be a peer-to-patent component that, like New York Law School’s existing program, will reach out to the open-source community in search of evidence of “prior art” — proof of preexisting knowledge or use of certain inventions — that can be used to challenge applications for patents that have been filed but not yet granted. The goal here is to persuade patent examiners not to grant the patent being sought because the invention is not truly novel.

The second component will be a natural extension of the first, to be known as “Post-Grant Peer to Patent,” which will enlist similar community assistance in the search for prior art relevant to patents that have already actually issued. In this case, the goal would be — assuming such prior art is found — to initiate an administrative reexamination proceeding before the U.S. PTO to get the patent invalidated. (There have been some earlier post-grant, peer-to-patent efforts — sometimes referred to as peer-to-issue programs — by both nonprofits and private companies, but none with the commitment, and on the scale, that OIN envisions, Bergelt says.)

The third component is the defensive-publications initiative. The phenomenon of defensive publication is also not new, Bergelt acknowledges, although it has primarily been used in the past by private companies protecting proprietary business models. Since at least the 1970s, he says, when the filing of an important patent by one company would often spur rivals to respond by seeking inter-related patents designed to restrict the usefulness of the first company’s filing, proprietary companies began using defensive publication to beef up and buffer their core patents.

“They’d file one patent,” Bergelt explains, “and then the next day they’d file thirty defensive publications that would protect all of the extensions of it they could think of, so the core patent was fenced off by layers of barbed wire, if you will. . . . What I’ve done is turn that idea on its head a little bit.” (Defensive publications are cheaper and easier to prepare than full-fledged patent-applications.)

Although some factions of the free- and open-source community are ideologically opposed to the whole notion of software patents — most notably and passionately Richard Stallman, the founder of the Free Software Foundation (which is a client of Linux-Defenders co-sponsor Software Freedom Law Center, which, in turn,  supports the End Software Patents organization) — neither Bergelt nor OIN fall into that camp.

“We’re not anti-patent by any stretch of the imagination,” says Bergelt. “More patents is fine with me, as long as they’re high quality. Quality is the drum we beat.”

In fact, Bergelt says, if a developer wants to get an actual patent on his invention, and then put defensive publications around it, Linux Defenders will help him do so — so long as the developer will ultimately be contributing the patent to the Linux community.

Yahoo’s ad alliance with Google seems like a great deal to Messrs. Brin, Page, and Yang. Now they just have to win over the Justice Department.

Google and Yahoo had hoped to have it all up and running by now. As you may recall, the two Internet giants announced an alliance last June in which Google would supply Yahoo with search ads to supplement Yahoo’s own. Google would get a big new customer for its ad-delivery service, while Yahoo would get a new source of revenue – and best of all, they’d keep Microsoft from swallowing Yahoo.

Then Washington got in the way. Due to pushback from antitrust regulators, in early October, Google (GOOG) and Yahoo (YHOO) put off the launch to give the Justice Department more time to chew on it. In September, Justice reportedly hired veteran antitrust litigator (and former Walt Disney vice chairman) Sandy Litvack to help review the deal, and soon thereafter Canadian authorities hired an outside lawyer too. The European Union is also taking a hard look.

What’s the hang-up? Well, there are three basic concerns about just what this alliance really amounts to. First, if it had been a merger between Google, with 70% share in the paid-search market, and Yahoo, with the next 20%, it would clearly violate antitrust laws by creating a monopoly. (Paid-search ads are the ones that show up near the top of a search-result screen or off to the side, under the rubric “sponsored links.”) Second, if Google were paying Yahoo to exit the paid-search arena, that would be an illegal agreement between competitors to allocate markets. Third, if Google and Yahoo were agreeing to set a price floor for the two companies’ paid-search offerings, that would be illegal price-fixing.

The actual deal being proposed looks something like a slow-motion version of the first two scenarios, and it might constitute an immediate realization of the third.

Google and Yahoo have tried to placate skeptics with a raft of reassurances: They’re not merging; Yahoo will continue to compete in paid searches; ad prices will continue to be set by auction, with each company’s auctions operating independently; Yahoo will only run Google ads to the extent it chooses; and Yahoo is still free to display ads from other paid-search providers, including third-place Microsoft (MSFT).

Not everyone is convinced, though – notably advertisers. The Association of National Advertisers (ANA), the Association of Canadian Advertisers, and the World Federation of Advertisers have all written regulators to voice opposition. In the letter from the ANA – a 375-company association with a board that includes members from Wal-Mart, Sears, and McDonald’s – CEO Bob Liodice writes that his group “is aware of only one advertiser/marketer that does not object to the Google-Yahoo collaboration.” (Liodice wouldn’t identify the exception.)

MICROSOFT GETS SUSPICIOUS

One big problem for Yahoo may be an astounding comment allegedly made by its own CEO, Jerry Yang, during negotiations with Microsoft in a San Jose airplane hangar on June 8, just three days before the Google-Yahoo pact was unveiled. (Google offered Yahoo the ad deal in an apparent effort to keep it out of the hands of Microsoft, which had offered to buy Yahoo at a 75% stock premium.)

According to testimony that Microsoft general counsel Brad Smith later gave to the Senate Judiciary Committee, Yang peered across a conference table and said, “Look, the search market today is basically a bipolar market…. On one pole, there’s Google, and on the other pole, there are Yahoo and Microsoft…. If we do this deal with Google, Yahoo will become part of Google’s pole.” Smith and his Microsoft colleagues were dumbstruck. Smith testified that during a break a few minutes after Yang’s comment, Microsoft CEO Steve Ballmer cracked, “[Yang] said there’s only going to be one pole in the market. I guess that would be a ‘mono-pole,’ wouldn’t it?”

When stunned Senators demanded that Yahoo general counsel Michael Callahan, who had also been present at the June 8 meeting, give his account of what Yang had said, Callahan repeatedly refused until, when pressed, he finally said, “I don’t recall that comment.”

Even putting aside the disputed remark, there are plenty of reasons to be skeptical about those reassurances from Yahoo and Google. For example, consider Yahoo’s claim that the deal will enable it to compete harder in the search business. The company has told shareholders that it hopes to make $800 million a year from its pact with Google – money that, as Yahoo president Sue Decker has written on a company blog, will be plowed back into R&D “to help us become a stronger competitor in all aspects of online advertising,” including paid searches. Yahoo has an incentive to do so, the company says, because it keeps all the revenue from its own ads but only a portion from Google’s.

Hmm. What portion will Yahoo keep when it uses a Google ad? That’s not public. But according to a lawyer close to the Google-Yahoo camp, Google’s ad deals with web publishers large and small-from the New York Times website to GPSworld.com -typically leave the publisher with “the lion’s share” of the revenue. Accordingly, when Yahoo runs an ad delivered by Google, we’re probably not talking about a 50-50 split; it’s more like 90-10, with 90% staying with Yahoo. So if Yahoo can make 90% of what Google’s superior mousetrap currently yields while incurring no research expenditures, how great is its incentive to keep dumping hundreds of millions into R&D for its own clunkier mousetrap? Plus, if Google really thought the deal would help Yahoo build a more competitive paid-search program, would Google be doing the deal? Concern about the deal’s sapping Yahoo’s long-term incentive to compete is presumably a key factor spurring EU regulators to nose around, notwithstanding its ostensible geographical limitation to the U.S. and Canada.

THE PRICE PROBLEM

Then there’s the price-fixing issue. Nobody’s price fixing, Google and Yahoo insist, because ad prices will continue to be set by separate auctions. That’s true. But part of the idea with this alliance is to replace some Yahoo ads on Yahoo search screens with Google ads, when the Google ads will fetch more revenue. Here is an oversimplified hypothetical example: Suppose you’re an auto parts dealer trying to drum up some business with search ads. You bid for the query “spark plugs Dallas Texas” on both the Yahoo auction and the Google auction-and learn that the going rates on Yahoo and Google, respectively, are $0.80 per click and $1.20 per click. Google reaches more users – hence the higher bids – but you decide to go for the $0.80 ad on Yahoo.

Guess what? You’ll need to pay the $1.20 anyway. Why? Remember that with the Google alliance, Yahoo now has the choice of going with ads delivered through its own system or through Google’s. Yahoo, of course, is going to run the ad that makes the most money – the ad from Google. In fact, Yahoo would never run its own ads if they were priced more cheaply than an available, comparable Google ad. In that sense the Google ad prices, though set by auction, would effectively set a floor for the prices of comparable ads displayed on Yahoo. Price floors constitute illegal price fixing.

Yahoo and Google respond that Yahoo won’t have the real-time pricing information about Google’s ads it would need to make instantaneous price comparisons to Yahoo ads. Still, Yahoo obviously thinks it has some way to compare the relative prices of Google and Yahoo ads – how else will it know when to replace a Yahoo ad with a Google ad?

Which is not to say that the search giants’ formidable teams of lawyers won’t eventually win Justice’s blessing for the deal. Clearly, though, those lawyers still have some serious work to do.

[CLARIFICATION: A spokesperson for Yahoo says that the way I've described the "$800 million" annual revenue figure above is inaccurate. To be clear, what Yahoo said in its announcement and SEC filing was this: "Yahoo! believes that this agreement will enable the Company to better monetize Yahoo!'s search inventory in the United States and Canada. At current monetization rates, this is an approximately $800 million annual revenue opportunity. In the first 12 months following implementation, Yahoo! expects the agreement to generate an estimated $250 million to $450 million in incremental operating cash flow." What Yahoo president Sue Decker said during the June 12 teleconference call was this: "In the first 12 months following implementation, we expect this agreement to generate $250 million to $450 million in incremental operating cash flow. Over the longer term, Yahoo! believes this agreement enables the company to better monetize Yahoo!'s search inventory. At the current monetization rate, we believe there is an approximate $800 million in annual revenue opportunity in the U.S. and Canada on those queries where monetization upside exists. This revenue opportunity could be achieved either from this arrangement with Google, which includes both search and nonsearch elements, or from other enhancements to our search capability, or a combination of them." -- RHP]

Yahoo’s ad alliance with Google seems like a great deal to Messrs. Brin, Page, and Yang. Now they just have to win over the Justice Department.

Google and Yahoo had hoped to have it all up and running by now. As you may recall, the two Internet giants announced an alliance last June in which Google would supply Yahoo with search ads to supplement Yahoo’s own. Google would get a big new customer for its ad-delivery service, while Yahoo would get a new source of revenue – and best of all, they’d keep Microsoft from swallowing Yahoo.

Then Washington got in the way. Due to pushback from antitrust regulators, in early October, Google (GOOG) and Yahoo (YHOO) put off the launch to give the Justice Department more time to chew on it. In September, Justice reportedly hired veteran antitrust litigator (and former Walt Disney vice chairman) Sandy Litvack to help review the deal, and soon thereafter Canadian authorities hired an outside lawyer too. The European Union is also taking a hard look.

What’s the hang-up? Well, there are three basic concerns about just what this alliance really amounts to. First, if it had been a merger between Google, with 70% share in the paid-search market, and Yahoo, with the next 20%, it would clearly violate antitrust laws by creating a monopoly. (Paid-search ads are the ones that show up near the top of a search-result screen or off to the side, under the rubric “sponsored links.”) Second, if Google were paying Yahoo to exit the paid-search arena, that would be an illegal agreement between competitors to allocate markets. Third, if Google and Yahoo were agreeing to set a price floor for the two companies’ paid-search offerings, that would be illegal price-fixing.

The actual deal being proposed looks something like a slow-motion version of the first two scenarios, and it might constitute an immediate realization of the third.

Google and Yahoo have tried to placate skeptics with a raft of reassurances: They’re not merging; Yahoo will continue to compete in paid searches; ad prices will continue to be set by auction, with each company’s auctions operating independently; Yahoo will only run Google ads to the extent it chooses; and Yahoo is still free to display ads from other paid-search providers, including third-place Microsoft (MSFT).

Not everyone is convinced, though – notably advertisers. The Association of National Advertisers (ANA), the Association of Canadian Advertisers, and the World Federation of Advertisers have all written regulators to voice opposition. In the letter from the ANA – a 375-company association with a board that includes members from Wal-Mart, Sears, and McDonald’s – CEO Bob Liodice writes that his group “is aware of only one advertiser/marketer that does not object to the Google-Yahoo collaboration.” (Liodice wouldn’t identify the exception.)

MICROSOFT GETS SUSPICIOUS

One big problem for Yahoo may be an astounding comment allegedly made by its own CEO, Jerry Yang, during negotiations with Microsoft in a San Jose airplane hangar on June 8, just three days before the Google-Yahoo pact was unveiled. (Google offered Yahoo the ad deal in an apparent effort to keep it out of the hands of Microsoft, which had offered to buy Yahoo at a 75% stock premium.)

According to testimony that Microsoft general counsel Brad Smith later gave to the Senate Judiciary Committee, Yang peered across a conference table and said, “Look, the search market today is basically a bipolar market…. On one pole, there’s Google, and on the other pole, there are Yahoo and Microsoft…. If we do this deal with Google, Yahoo will become part of Google’s pole.” Smith and his Microsoft colleagues were dumbstruck. Smith testified that during a break a few minutes after Yang’s comment, Microsoft CEO Steve Ballmer cracked, “[Yang] said there’s only going to be one pole in the market. I guess that would be a ‘mono-pole,’ wouldn’t it?”

When stunned Senators demanded that Yahoo general counsel Michael Callahan, who had also been present at the June 8 meeting, give his account of what Yang had said, Callahan repeatedly refused until, when pressed, he finally said, “I don’t recall that comment.”

Even putting aside the disputed remark, there are plenty of reasons to be skeptical about those reassurances from Yahoo and Google. For example, consider Yahoo’s claim that the deal will enable it to compete harder in the search business. The company has told shareholders that it hopes to make $800 million a year from its pact with Google – money that, as Yahoo president Sue Decker has written on a company blog, will be plowed back into R&D “to help us become a stronger competitor in all aspects of online advertising,” including paid searches. Yahoo has an incentive to do so, the company says, because it keeps all the revenue from its own ads but only a portion from Google’s.

Hmm. What portion will Yahoo keep when it uses a Google ad? That’s not public. But according to a lawyer close to the Google-Yahoo camp, Google’s ad deals with web publishers large and small-from the New York Times website to GPSworld.com -typically leave the publisher with “the lion’s share” of the revenue. Accordingly, when Yahoo runs an ad delivered by Google, we’re probably not talking about a 50-50 split; it’s more like 90-10, with 90% staying with Yahoo. So if Yahoo can make 90% of what Google’s superior mousetrap currently yields while incurring no research expenditures, how great is its incentive to keep dumping hundreds of millions into R&D for its own clunkier mousetrap? Plus, if Google really thought the deal would help Yahoo build a more competitive paid-search program, would Google be doing the deal? Concern about the deal’s sapping Yahoo’s long-term incentive to compete is presumably a key factor spurring EU regulators to nose around, notwithstanding its ostensible geographical limitation to the U.S. and Canada.

THE PRICE PROBLEM

Then there’s the price-fixing issue. Nobody’s price fixing, Google and Yahoo insist, because ad prices will continue to be set by separate auctions. That’s true. But part of the idea with this alliance is to replace some Yahoo ads on Yahoo search screens with Google ads, when the Google ads will fetch more revenue. Here is an oversimplified hypothetical example: Suppose you’re an auto parts dealer trying to drum up some business with search ads. You bid for the query “spark plugs Dallas Texas” on both the Yahoo auction and the Google auction-and learn that the going rates on Yahoo and Google, respectively, are $0.80 per click and $1.20 per click. Google reaches more users – hence the higher bids – but you decide to go for the $0.80 ad on Yahoo.

Guess what? You’ll need to pay the $1.20 anyway. Why? Remember that with the Google alliance, Yahoo now has the choice of going with ads delivered through its own system or through Google’s. Yahoo, of course, is going to run the ad that makes the most money – the ad from Google. In fact, Yahoo would never run its own ads if they were priced more cheaply than an available, comparable Google ad. In that sense the Google ad prices, though set by auction, would effectively set a floor for the prices of comparable ads displayed on Yahoo. Price floors constitute illegal price fixing.

Yahoo and Google respond that Yahoo won’t have the real-time pricing information about Google’s ads it would need to make instantaneous price comparisons to Yahoo ads. Still, Yahoo obviously thinks it has some way to compare the relative prices of Google and Yahoo ads – how else will it know when to replace a Yahoo ad with a Google ad?

Which is not to say that the search giants’ formidable teams of lawyers won’t eventually win Justice’s blessing for the deal. Clearly, though, those lawyers still have some serious work to do.

[CLARIFICATION: A spokesperson for Yahoo says that the way I've described the "$800 million" annual revenue figure above is inaccurate. To be clear, what Yahoo said in its announcement and SEC filing was this: "Yahoo! believes that this agreement will enable the Company to better monetize Yahoo!'s search inventory in the United States and Canada. At current monetization rates, this is an approximately $800 million annual revenue opportunity. In the first 12 months following implementation, Yahoo! expects the agreement to generate an estimated $250 million to $450 million in incremental operating cash flow." What Yahoo president Sue Decker said during the June 12 teleconference call was this: "In the first 12 months following implementation, we expect this agreement to generate $250 million to $450 million in incremental operating cash flow. Over the longer term, Yahoo! believes this agreement enables the company to better monetize Yahoo!'s search inventory. At the current monetization rate, we believe there is an approximate $800 million in annual revenue opportunity in the U.S. and Canada on those queries where monetization upside exists. This revenue opportunity could be achieved either from this arrangement with Google, which includes both search and nonsearch elements, or from other enhancements to our search capability, or a combination of them." -- RHP]

Here’s a no-win situation for an attorney: What do you do when a your client, the founder and former CEO of a billion-dollar public company, is supposedly being shown on YouTube using illegal drugs?

According to a motion filed by federal prosecutors on Thursday, the quandary arose last summer when such videos were posted of Henry T. Nicholas, III, the co-founder and former CEO of Broadcom (BRCM), the high-profile, fabless semiconductor company based in Irvine, California.

(Last Thursday Nicholas pleaded not guilty to two federal indictments, one charging options backdating and the other conspiracy to distribute drugs, including MDMA (ecstacy), methamphetamine, and cocaine.)

In August 2007 Nicholas attorney Susan Szabo of Munger Tolles & Olson wrote e-mails and faxes to YouTube and parent Google (GOOG) demanding they take down a video of Nicholas, which, she said, invaded his privacy.

A YouTube support rep e-mailed Szabo back explaining that the company couldn’t process a privacy complaint “based on what a video ‘purports’ to portray,” so he invited her to confirm that the video really did show her client in a private setting without his consent.

Szabo complied: “I can confirm that the video portrays my client and that the video was taken surreptitiously in his bedroom, without his knowledge and consent, and that any distribution of the video is without his consent.”

Now, in a motion asking that Nicholas be detained pending his trial on the two indictments, the government cites the video – which, it claims, shows Nicholas using drugs at a time when he knew the government was investigating him and when he was publicly denying drug use to the media – as tending to show that Nicholas presents a risk to the community and a flight risk. Prosecutors write: “There can be no doubt it was defendant in the video as his attorneys sent an e-mail and letter to YouTube confirming that the person in the video using drugs is, in fact, defendant.” (The judge ultimately ordered certain “home detention” measures for Nicholas.)

An e-mail to attorney Szabo was not immediately returned. Nicholas’s criminal defense attorney, Brendan Sullivan, wrote: “I adhere to a policy that I should not discuss matters in litigation.”

The government’s 18-page detention motion, with 100 pages of appended exhibits, also levels a variety of other unflattering accusations beyond those already contained in the indictments. During a June 2007 flight on one of his private jets, for instance, Nicholas allegedly accused a “longtime friend, personal attorney, and employee” of wearing a “wire”; threatened to “chase him to the ends of the earth” if the friend “screwed” him; and then struck the friend in the face, causing him to fall to the ground.

The papers also allege that in November 2007 Nicholas, while driving with his son, crashed his black Lamborghini into a lamp post while returning from a Shake Shack. He switched cars with a security staffer in his convoy and then left the scene while the staffer waited for the police and took the rap. Through an attorney, Nicholas later admitted to local police that he’d been driving the Lamborghini, but claimed that the security staffer had suggested Nicholas drive home for “security reasons,” and that Nicholas had never intended that the staffer take responsibility for the crash. (The staffer, according to prosecutors, has refused to testify about the incident notwithstanding an immunity order, and is currently incarcerated on contempt charges.)

Nicholas stepped down as Broadcom’s CEO and co-chairman in 2003, explaining in a statement that he wanted “to attend to serious family matters.”

It’s being widely reported that Yahoo (YHOO) and News Corp. (NWS) are back in talks to combine Yahoo with MySpace and other properties that make up Fox Interactive Media, News Corp.’s online arm. The companies held what I’m told were very preliminary talks along a similar vein last year. The deal would have three main components: 1) News Corp. would contribute FIM to Yahoo; 2) News Corp. would invest in Yahoo; 3) a private-equity partner would inject yet more cash into Yahoo. The goal, in theory, would be to raise Yahoo’s value with the cash investments, thus obviating the need for Yahoo to sell to Microsoft (MSFT).

Here’s the problem. Or, rather, the problems. It’s going to be tricky to value MySpace, which will be the linchpin of the value of what News Corp. is contributing. If whatever News and Yahoo were to assemble didn’t add up to Microsoft’s current offer ($31), or counter-offer, the board of directors at Yahoo would be in a pickle.

Couldn’t they just accept a lower bid with the argument that Yahoo is worth more independent than selling out? Sure. Then they’d get sued. They’ve got to be able to best Microsoft’s offer in a reasonable timeframe, or they’re not doing their fiduciary duty.

There’s more. In a note to clients Wednesday, UBS analyst Ben Schachter (who had a buy rating on Yahoo at $19, when many of his competitors had lost faith, because he figured Yahoo’s falling price would provoke a sale, or at least a bid) reasons that the only way for a YahooSpace to achieve necessary profits would be do a search outsourcing deal with Google (GOOG). That’d bring the companies back to the same regulatory conundrum they’ve already been grappling with: Google’s search share is too big. There’s also the question of whether Yahoo needs MySpace. After all, “Yahoo’s problem has not been a lack of inventory, ” writes Schacter, meaning that it already has a huge audience. It’s problem, he writes is “its poor execution on optimizing monetization.” That means Yahoo isn’t so good at making money from its 500-million-plus audience. Schacter has a $34 price target on Yahoo because he thinks Microsoft will raise its bid.

So is Yahoo wasting its time talking to News Corp.? Of course not. Its stock traded over $30 Wednesday, closing at $29.88. To the point of my earlier post, that’s a sign investors expect a higher bid from Microsoft, not that it’s overly impressed with a News Corp.-Yahoo tie-up.

My friend, the Newsweek columnist Daniel Gross, posted an entertaining and informative column this week on Slate about what he sees happening next in the Microsoft-Yahoo merger. Like everything Dan writes, this column is worth reading, partly because it’s delightful and also because he does a great job of explaining how these catfights typically work. I agree with everything he wrote — except his conclusion.

To boil down his wonderful words, Dan believes that because Yahoo’s (YHOO) stock price hovers around $29.50, where it’s been more or less since Microsoft (MSFT) offered on Feb. 1 to buy the company for $31 a share, Wall Street is signaling its belief the deal will collapse. He reasons that if investors believed a higher bid was coming, the stock would trade higher. The fact that no private-equity or sovereign-wealth firm has materialized to bid for Yahoo is further proof that no one wants it and that Microsoft won’t fight.

I beg to differ, and not just because I wrote in the current issue of Fortune that a Microsoft acquisition of Yahoo is inevitable. First, Yahoo’s stock price is held back in part because Microsoft’s stock price is down, and half its offer is in stock. Second, if the market really believed that Yahoo will succeed in telling Microsoft to buzz off, the stock wouldn’t be at $29 and change. It would have plunged back toward $19, the sorry level to which it had fallen just before Microsoft dropped its bomb.

Yes, Yahoo traded for $31 not so very long ago. But that was before investors realized how little was going on inside the company, that CEO Jerry Yang was taking his sweet time to clean house, that Yahoo continued to poorly articulate its growth strategy and, perhaps most importantly, that the company faces “headwinds” in its core business, online display ads. Those realities haven’t changed since Microsoft offered to buy the company.

As for another bidder materializing, the fact that nobody — not a phone company, not another media company and certainly not a private-equity shop — has stepped forward tells you something about how the world outside Redmond, Wash., and Sunnyvale, Calif., views Yahoo’s valuation. A financial buyer simply can’t make the numbers work; Only Microsoft can.

But can’t Yahoo simply say no? Sure it can. But if Wall Street really believes no means no, you’ll see a stock drop and lawsuits fly. “We do not believe that Yahoo’s board will be able to turn down a mid-$30s bid without another offer in hand,” RBC Capital Markets analyst Jordan Rohan wrote to clients this week. “Yahoo management has already exhausted the patience of its largest, longest-suffering shareholders and Microsoft’s offer allows them to save some face.” Rohan then reports something I haven’t seen elsewhere: “Microsoft held several meetings last week with some of Yahoo’s largest shareholders. Ultimately, since there is only one class of stock, if those shareholders band together behind the likely-future-revised Microsoft bid, the deal will eventually get done.”Already, that’s beginning to happen. T. Rowe Price and Legg Mason, two large Yahoo shareholders, have gone public with their support for the Microsoft offer.

What this means is that it’s likely wrong to interpret Microsoft’s lack of a higher bid so far as an unwillingness to raise its offer. Instead, think of Microsoft’s behavior as a pause, an opportunity to make Yahoo sweat — or at least get an earful from its own shareholders. Of course Microsoft will raise. But only after Yahoo has the time to consider the meaning of Microsoft not raising.

A few more things to consider, at least for readers not caught up in the mind-messing media games that get played by all sides in this circus. The Wall Street Journalis reporting in Wednesday’s editions that Google (GOOG) is no longer overly interested in pursuing a revenue-sharing deal with Yahoo for search ads. It sources are “people familiar with the matter.” I haven’t checked, but I’m guessing that the Journal, citing “people familiar with the matter,” first broke the news that Google was interested in pursuing a revenue-sharing deal with Yahoo for search ads. Gold star for anyone who can guess where that information started and ended.

Similarly, the conventional wisdom for why Microsoft won’t actually mount a hostile takeover bid, a term of art that is different from the public “bear hug” it currently is pursuing, is that it would scare away Yahoo’s best people. What’s odd about that is that the conventional wisdom up until earlier this month was that most folks you’d want to retain at Yahoo already had left. Conventional wisdom’s a funny thing.

A final thought, and not a happy one for Microsoft, but even less so for Yahoo. Yahoo undoubtedly will draw this process out for a bit. Who knows, they may even force Microsoft to mount a proxy fight, though I doubt it. But let’s say it’s three months before Yahoo acquiesces and another nine months before U.S. and European regulators approve a Yahoo acquisition. Google likely will complete its long delayed DoubleClick purchase this spring. Under this scenario, it would then have a year’s headstart against MSN-Yahoo, which will be the mother of all integration challenges. Neither Yahoo nor Microsoft and the ad businesses it acquired when it bought aQuantive last year will stand still, of course. But talk about distractions.

In advance of Google’s being named the best company to work for in America, for the second year in a row I sat down recently with the founders of Google (GOOG), Sergey Brin and Larry Page, and CEO Eric Schmidt. Toward the end of the interview, I asked what Google will do when it inevitably hits the wall, when the company suffers a major hiccup. Sergey Brin gave a thoughtful answer that essentially said that everything Google does for employees will serve it well in tough times. (A different version of the interview appears in the current issue of Fortune Magazine.)

That’s good and fine. But what I really want to know is whether Google does scenario planning for that day and if so, what’s the plan of action. No company is immune from a major slowdown — or worse. IBM (IBM), Microsoft (MSFT), Dell (DELL), even Wal-Mart (WMT). Each was invincible at some point, and each sooner or later missed its moment. Each planned inadequately for the deluge. Is it even possible? I’d love to know your thoughts.

A tradition at eBay is that the people who work with its senior executives get to name their personal conference rooms. The meeting place belonging to John Donahoe, the top executive for eBay’s core online marketplace, is Dennis the Menace. If the Wall Street Journal’s sources are right and Donahoe is named the next CEO of eBay when Meg Whitman retires, he’ll likely start causing mischief almost as soon as he’s in the top job.

Donahoe isn’t nearly as well known as Whitman, the public face of eBay (EBAY) for a decade. But he’s no newbie. He’s been at the company for nearly three years now — a tough three years given that he presides over eBay’s thorniest problem, its slow-growth online sales engine. eBay’s missed opportunity is gargantuan. Compared with Amazon.com’s (AMZN) business, for example, eBay.com enjoys a well earned monopoly and the rich profit margins that come from holding no inventory. Yet, as I’ve commented recently,  competitors like Amazon and Google (GOOG) have out innovated eBay, decimating its stock. (Meg Whitman claims to not follow eBay’s stock price. Read my account of the company mid-malaise, about a year ago.)

There already are signs Donahoe has taken the reins at eBay. In early December he spoke at a UBS conference and hinted strongly that major changes were afoot in eBay’s fixed-price sales business. eBay’s sellers have felt nicked and dimed by the company for years. Donahoe suggested that eBay will tinker with its pricing model by lowering upfront prices and raising closing commision fees. The lowering part spooked Wall Street, even if it’s the right thing to do. (It’s a lot like economic stimulus: Lower taxes in hope of expanding the economy. eBay’s not the U.S. government though … if it lowers upfront fees and doesn’t convert the sale its revenues go down.) An insidery writeup of Donahoe’s talk appeared here.

The other big decision facing Donahoe is what to do with PayPal, the eBay-owned payment business that is roaring. Late last year PayPal quietly juiced up its management team, making four key hires of prominent executives who worked at blue-chip companies including Avon (AVP), American Express (AXP), McKinsey, Oracle (ORCL) and Visa. PayPal’s growth engine is its business selling services to online merchants other than eBay, making eBay’s ownership of PayPal less necessary. It’s hard to imagine that PayPal was able to attract such top talent by offering stock packages merely in eBay stock options. Asked if the news was evidence that eBay was planning to spin off or sell PayPal, a PayPal spokeswoman responded: “This shows the caliber of people that want to leave fantastic jobs at fantastic companies to come to PayPal. There are no plans to change PayPal’s structure within eBay.”

The question remains what John Donahoe will do at eBay, assuming he gets the job. (I used to think Jeff Jordan had a lock on the job; I was wrong.) Donahoe is quite literally the Mitt Romney of the Internet world. He’s a Bain consultant through and through, a handsome guy with a gigantic Rolodex (note to kids: that’s where people Donahoe’s age, 47, used to keep their contacts; it’s now a metaphor) and a bias toward action.

Be certain of one thing, should the man insiders call Dennis the Menace get the job, expect some mayhem in the near term.

It’s been a couple days since what has now been a widely panned dud of a keynote speech by Steve Jobs at Macworld. No “one more thing … ” No breathtaking surprises. No stunning celebrity. (Randy Newman? Come on.)

I was in the audience, and I thought the lower-key keynote was just fine. It’s true that Jobs blew no one away. Top honchos from Twentieth Century Fox and Intel (CEO) won’t wow the crowd. Movie rentals can’t compare with the reinvention of an industry. And while Apple’s (AAPL) new ultrathin notebook looks fabulous, it’s not priced for the mass market. (And will people pay $1800 and up for a device with no Ethernet port? These are the types of topics geeks can endlessly debate.)

But so what? After a year like Apple had last year, it’d be silly to try to blow people away at Macworld. Perhaps it was better to lower expectations. I’m guessing that whether intentionally or not, that’s what Jobs did on Tuesday. And for what it’s worth, while Randy Newman isn’t as sexy as John Mayer or Kanye West, past Macworld performers, his two songs were really good.

The faithful’s disappointment had nothing on Wall Street’s, though. Apple’s shares have now fallen $19, or almost 11%, since Monday’s closing price. This will seem confusing to market watchers of the amateur variety as well as the pros. No one has answers, only guesses. Citi analyst Richard Gardner, for example, called Tuesday’s stock behavior a “typical seasonal pullback.” His explication covers all the bases:

While we are surprised by the magnitude of today’s pullback in Apple shares following an as-expected Macworld keynote, we believe the reaction reflects the view that today’s product announcements will do little to help Apple during [the first half of calendar-year 2008]. The products either represent minor enhancements to existing products (i.e., software updates for iPhone and iPod touch), niche products (i.e., the new ultraportable MacBook Air) or new services that will drive iPod and AppleTV sales over the long-term but contribute little or nothing to operating income during 2008 (i.e., iTunes movie rentals).

Trying to understand the selloff almost isn’t worth the effort. Apple is one of those stocks that defies explanation. It was equally tough to understand is recent high of almost $203.

So focus instead on how the company is valued. At $160 a share, Apple trades for about 31 times expected earnings for its year that ends in September. Analysts expect Apple to grow earnings this year about 31%, an astounding growth rate for a company this size. Next year they see 25% growth. In other words, at its current multiple, Apple is getting little or no premium to the market, despite the iPhone working out to be a bigger than expected seller and the Macintosh picking up speed. (Google (GOOG), by the way, at $616, is off 18% from its high. It trades for about 30 times expected 2008 earnings and is expected to grow by 33% … I’m just saying … )

Apple reports earnings next week. It has a habit of underpromising and overdelivering. It isn’t the expensive stock it used to be.

Bloomberg News reported earlier in the week that eBay (EBAY) finance chief Bob Swan was asked at a CSFB technology conference whether eBay would sell Skype, the computer phone calling service it bought three years ago for far too much money. The question followed the slimmest of rumors on a British newspaper’s Web site: “Currently in favour around London’s webbist community is the rumour that Google (GOOG) has been in negotiations to buy Skype,” wrote Guardian blogger Jemima Kiss. (Great name!)

According to my own reporting in the “webbist community” in Silicon Valley, Swan discussed the wrong prospective asset sale. He should have addressed whether eBay would sell PayPal. It’s no secret that PayPal is blazing, and it’s so-called off eBay business, the payments it processes for non-eBay transactions, is becoming an ever-larger part of PayPal’s overall business. (For a detailed and highly readable overview of eBay’s business, including a comparison of its “marketplaces” and “payments” units, see Swan’s own pre-Q&A presentation at the CSFB conference.)

Two different Silicon Valley investors, in separate conversations this week, pointed out to me the embarrassment that Amazon (AMZN), with its market capitalization of $37 billion, had caught up to — and effectively surpassed — eBay (market cap: $45 billion), if you take out the value of PayPal. Ebay is a natural monopoly, the far-and-away leader in online auctions and carries no inventory. Amazon is a retailer with slim margins and a not easily defended business. The easiest way for eBay to reward its investors, they argued, would be to spin off PayPal, a move eBay management will never acknowledge considering — until the day a plan is announced. (A tip of the hat, by the way, for the second day in a row to the insightful Web site breakingviews.com, which examined the eBay breakup scenario on Nov. 7.)

Surely there are companies out there that could make better use of Skype than eBay has. But selling it won’t give eBay’s stock the pop it needs. Setting free PayPal might.

Mighty Microsoft (MSFT) held its annual shareholders meeting today in Redmond, Wash. I know this because the company sent me a press release about it.

I quickly skimmed the blah, blah, blah about “positive customer momentum” and “strategy of investing in innovation,” and, for some reason, took a careful look at Mr. Softee’s board of directors, which the company printed in the release. Here’s the roster, with emphasis added to make the point I’m about to discuss:

Microsoft’s board of directors consists of William H. Gates, Microsoft chairman; Steven A. Ballmer, Microsoft chief executive officer; James I. Cash Jr., Ph.D., former James E. Robison professor of business administration at Harvard Business School; Dina Dublon, former chief financial officer of JPMorgan Chase; Raymond V. Gilmartin, former chairman, president and chief executive officer of Merck & Co. Inc.; Reed Hastings, founder, chairman and chief executive officer of Netflix Inc.; David F. Marquardt, general partner at August Capital; Charles H. Noski, former vice chairman of AT&T Corp.; Dr. Helmut Panke, former chairman of the board of management at BMW Bayerische Motoren Werke AG; and Jon A. Shirley, former president and chief operating officer of Microsoft.

I think you can see where I’m going. That’s six out of ten “formers” on the board, seven if you count Bill Gates, former CEO. Not counting CEO Steve Ballmer, there is precisely one current operating executive on the board, Reed Hastings, CEO of Netflix (NFLX), an innovative company that is nonetheless a pipsqueak in a narrow market niche.

Buzz words aside, Microsoft still hasn’t been able to shake itself from the torpor of having its butt kicked by Google (GOOG) in the online advertising world. By comparison, Google’s board includes the presidents of Princeton and Stanford, and the CEOs of Genentech (DNA) and Intel (INTC). Apple’s (AAPL) board includes the CEOs of Google, Genentech and J. Crew (JCG).

Could it be that Microsoft’s board of “formers” isn’t helping matters?

I saw something more than a little scary last week at Google (GOOG): A calm, confident, friendly management team that seemed more comfortable in its own skin than I’ve ever seen them.

For the first time, Google invited a handful of journalists to its annual Zeitgeist conference for advertising partners. Afterwards, Larry Page, Sergey Brin and Eric Schmidt held an on-the-record chat with us over sandwiches. They talked about their interest in wireless spectrum. They fretted that their biggest challenge (still) is managing their growth. They even showed their sense of humor. When I noted the unusual stability of the top executives beneath the ruling troika (as a prelude to asking if that stability would continue), Page quipped, “Emotionally or physically?” More seriously, he predicted continued stability and suggested a leadership training program is helping. (The word is that many of Google’s “economic volunteers,” a term that’s actually used within the company, will be retiring soon and that turmoil will hurt.)

The arrogance remains, of course. Schmidt held forth on how much the company is doing to address the concerns that caused Viacom (VIA) to take Google to court over YouTube’s policies regarding content it doesn’t own. He said filtering technology is in “various stages of rollout,” as if that were good enough. He said Viacom “rushed” into litigation. He obviously has the luxury of knowing the suit has done nothing to blunt YouTube’s advance.

On the subject of social networking, and Facebook in particular, they made it very clear just how interested Google is in getting into the game in a more meaningful way than its Orkut service. (Read my colleague Josh Quittner for a contrary view on how much Facebook worries Google.)

Bottom line: From my perch, these guys were cool as cucumbers. Genuinely relaxed, engaged and at the top of their game.

By the way, Google reports earnings Thursday. The company’s worth $200 billion. And its founders give off the vibe that they’re just getting going. As I’ve written in the past, Google’s management isn’t perfect. Its previous quarter was sloppy. My gut tells me this one won’t be.

A technology generation ago Sun Microsystems (JAVA) extremely successfully convinced investors that it put the “dot into dot-com.” It was a brilliant marketing campaign. The product hadn’t changed, just the perception of it. (Ed Zander, whose best effort at Motorola (MOT) has been embracing the pre-existing and relatively empty “seamless mobility” label, likes to take credit for the marketing move at Sun, where he was the president.)

Now Sun is playing the perception game again. It will do a reverse 1-for-4 stock split in an effort to convince investors it is not a loser company. Executives acknowledged that reverse splits are meaningless from a valuation perspective. (Ditto for regular splits, by the way.) In fact, a reverse split usually is a sign of desperation. But Sun says it can stop the questions about the company’s staying power if essentially ignorant customers stop seeing a sub-$10 stock price.

Last week Sun also dropped its long-time stock symbol, SUNW, in favor of JAVA, which is the name of pioneering software Sun developed. (Google (GOOG) CEO Eric Schmidt played a key role on Java.) “More than a billion people across the globe, representing nearly every demographic, market and industry, rely upon Java’s security, innovation and value to connect them with opportunity,” CEO Jonathan Schwartz said in a statement. “That awareness positions Sun, and now our investor base, for the future.”

Whatever you call it, the stock was up 11 cents, or 2%, Thursday, to $5.48. Yawn.

Two thoughts ran through my head as I read a column by my most excellent colleague Geoffrey Colvin called Don’t go gaga over Google. The first, given that Geoff’s piece was all about why shares of Google (GOOG) are in no way worth more than $500, is that it would have been at least sporting to have mentioned that we are the magazine that not quite three years ago asked, on our cover, if Google really was worth, wait for it, $165 per share.

I’m not enough of a student of economic value added, or EVA, analysis that Geoff deploys in his piece to judge how conclusive his argument is. I’m also not sure how closely professional managers follow this method. I’d love to know confessed-Google-lover Bill Miller’s thoughts on the subject. Actually, I’m not really commenting one way or the other on the valuation. Not now, anyway. All great companies fetch a premium that defies any rational analysis — until they don’t. Witness Microsoft (MSFT), whose stock grew until 2001 and hasn’t since, and General Electric (GE), which, as the one and only Nelson Schwartz reminded us this past weekend, still hasn’t recovered its 2000 high. (Actually, Geoff Colvin wrote that story too, in 2005. But now I really digress.) In essence, Google’s valuation will remain tied more to its ability to grow than its return on capital. That’s my opinion, for what it’s worth.

Which leads to my second thought, regarding a line near the end of Geoff’s column that journalists often refer to as the “to be sure” line, as in “To be sure, Mr. Smith accomplished much in his career …” Geoff writes:

Irrational valuations can last a long time, and sometimes they correct gently rather than violently. And it doesn’t mean that Google is poorly run. On the contrary, it has been brilliantly run. (emphasis added.)

That’s a fascinating point, because here in Silicon Valley there’s absolutely no consensus that Google has been brilliantly run. There’s no question that Google has brilliantly exploited a massive opportunity in the online advertising market, primarily search-based text ads. No one can ever deny that.

Whether the company is well run, however, simply can’t be known yet. As I pointed out in my own cover story last year, Google so far has been able to avoid answering the question of whether its chaotic nature is by design or whether it’s merely holding onto the handles of one incredibly fast roller-coaster ride. Its young founders are universally believed to be really bright guys. But they’ve never worked anywhere else. They condone, nay, encourage, a permissive culture that lets engineers run wild whether or not they are contributing to the bottom line. Its CEO, Eric Schmidt, was a top scientist at Sun Microsystems (SUNW) and then an uneventful CEO of a relatively unimportant Novell (NOVL). The line on Schmidt is that he has grown tremendously in the job at Google. That’s undoubtedly true. Still, he hasn’t been tested by the kind of adversity that knocks CEOs on their backs. And to judge by one data point, Google’s surprising inability to manage its hiring costs, Schmidt hardly has the place running like a finely-tuned engine.

To be sure, Google already is a company for the ages. Its stock may surge even more. The greatness of its management, however, will be judged far more in the next three years than in the last three since it went public.

What with all the exciting stuff going on in the Web world of late — Google (GOOG) laying a rare earnings turd, Facebook becoming the next Google, Yahoo (YHOO) losing altitude fast — a morsel from eBay’s (EBAY) earnings call last week was undereported. CEO Meg Whitman, vowing to rejuvenate eBay.com’s core listings, promised to market more offline. She also commented briefly on eBay’s recent spat with Google. Consider this from the New York Times:

Last month, eBay temporarily stopped buying keyword advertising on Google, the Web’s largest search engine. EBay said the suspension did not have had significant effect on its bottom line. “We learned a great deal from that test,” Ms. Whitman said. “It actually had no impact on the financials of the quarter, and we learned a lot about where we want to spend money and where we think we can save money on Internet marketing.”

Think about that. eBay, once and perhaps still Google’s largest advertiser, saying that perhaps online advertising isn’t all it’s cracked up to be anymore. That’d be fine, say, if Procter & Gamble (PG) decided it had had enough of this newfangled form of advertising. But not eBay, an Internet pioneer. Internet advertising taking a back seat to offline marketing? The horror, the horror.

A smallish software company called NetSuite filed papers Monday with the SEC to go public. If it weren’t for the fact that Larry Ellison controls 74% of the company and that the online software provider for businesses is a relentless press hound you’d probably never have heard of this company.

As NetSuite prepares to public it will be making a lot of comparisons between itself and other companies. For instance, because it will go public using the auction method, NetSuite will point out that it’s the first big tech IPO to do since Google (GOOG). Because the company delivers its services online, it will compare itself frequently to Salesforce.com (CRM), another company Ellison, the CEO of Oracle (ORCL), helped fund.

In the spirit of comparisons, here are some NetSuite probably won’t make. NetSuite, you see, was founded the year before Salesforce.com, 1998, the same year Google was founded. When Salesforce.com filed to go public in 2004, its last full year of revenues weighed in at $96 million. It made $3.5 million that year. Google, which also went public in 2004, had revenues the previous year of $1.5 billion and profits of $106 million. As for NetSuite, which started hyping its IPO last December, its last full year of revenues were $67 million, on which it managed to lose $23 million.

There’s also the comparison of spending. NetSuite spent $44 million on sales and marketing last year, 65% of its revenues. Even the hilariously freespending Salesforce.com spent “only” 57% of its revenues on sales and marketing in its last full year before going public — and it made a profit that year.

One wonders with numbers like this why NetSuite is rushing to go public at all. Valuing IPOs is all about what Wall Street types refer to as comps. Limelight Networks (LLNW), for example, went public largely by using competitor Akamai (AKAM) as a comp. In NetSuite’s case, however, the comps don’t look that great.

I mentioned this topic in my article Tuesday after Jerry Yang’s appointment as CEO of Yahoo (YHOO), and the The New York Times devoted a considerable amount of ink to it the next day. This is a bit of an arcane topic to people who aren’t in the biz, but an extremely important one. It essentially suggests that Yahoo should stop investing in its search-advertising platform because it has been such a laggard and instead outsource the function to Google (GOOG). That’s what Yahoo used to do, and there’s widespread agreement that Google is and always will be superior at this to everyone else.

In fact, it’s a classic business-case problem. Should Yahoo let the fact that it has spent billions of dollars buying Inktomi and Overture and investing in its Project Panama stand in the way of making the right financial call? Unemotional business theory suggests that you can’t let past poor decisions stand in the way of good decisions today. Then again, if search advertising is central to what Yahoo does — and that has been management’s position to date — then they simply can’t give up.

I’ve had two interesting responses to my article in the last couple days from executives who think about his stuff all day long. One thinks Yahoo’s preparing to sell itself. The other sees plenty of opportunity. “A CEO who has never run anything large and a president who hasn’t either and came from Wall Street,” wrote one. “Can this truly be anything other than Yahoo pursuing ’strategic options?’” Said the other: ” There are a lot of people who think that search is still relatively early and that there’s a whole lot of ad technology left to be built in years ahead and that Google, Microsoft (MSFT), AOL and others are going to be investing heavily. Jerry seems to be the kind of guy to lead a similar effort for Yahoo.”

What do you think? Tell me below or in this poll.

David Kirkpatrick and I have been having a cordial argument about Facebook. He thinks it’s going to be the next big thing. I think it’s really annoying. He likes to send me messages through Facebook, which then notifies me, by email, that I have a message on Facebook from David. I ask him to send me emails instead. I just can’t see myself ever spending significant amounts of time on Facebook. It’s cute and all, but, well, I don’t know, it’s just not my thing.

That got me thinking about just how difficult it is to change one’s behavior online. I believe that kids use Facebook and love it, and I’m sure many will keep using it when they grow up. Most, however, will have to attend meetings and do actual work during the day — unless, of course, they become journalists — and therefore won’t have the time to see who is “poking” them on Facebook.

Similarly, I was stunned by news that Google (GOOG) now has 56% of the U.S. search market, up from 49% a year ago. Then again, I’m sort of surprised anyone doesn’t use Google. I keep meaning to spend a whole day using Ask.com’s search. (Jim: LOVE the new commercials.) But then I forget, so ingrained is Google in my search psyche. (The IAC (IAC) unit also didn’t do as good a job of helping me find a news story about search marketshare as Google did.) Then there’s Google Finance, which is doing some really neat stuff — and has started a new blog (Katie, you’re a blogger!). I like Google Finance. But I rarely use it. Yahoo (YHOO) Finance has been my browser home page for about … forever. I just can’t conceive of not seeing Yahoo Finance when I go online.

What will it take to change that?

Mike Volpi has been on the job as CEO of Joost, the new online video network, for a few weeks. But already he’s got his mission statement down better than Terry Semel ever did at Yahoo (YHOO). (See this interview I did last summer with Semel to get a sense of what I mean.) “We want to transform the way people entertain themselves,” Volpi said last night at a party at the Academy of Television Arts & Sciences in North Hollywood, Calif. (A fairly serious guy, Volpi also began his remarks with a pitch-perfect zinger: “My staff has told me this will be my only opportunity ever to say, ‘I’d like to thank the Academy …’”)

If you know anything at all about Joost, you know it doesn’t suffer from ambition. Founded by the two guys who started Kazaa and Skype, Joost is one of scores of companies that are trying to be the next YouTube. And yet it’s gotten a higher profile than the others, even before officially starting its service. That’s due in part to its founders and partly to early investors like Skype funder Index Ventures (hey Danny!), CBS (CBS), Google (GOOG) and YouTube investor Sequoia Capital. Nabbing Volpi added yet more cred to Joost. He was a Cisco (CSCO) bigshot for years. (Read David Kirkpatrick’s overview of Joost on the day Volpi’s hiring was announced.)

Okay, so how is Joost doing? Well, it’s hard to say. The company is still in its testing phase. Volpi told me 700,000 users have downloaded the company’s player, a piece of software to watch videos on your computer. It has signed all sorts of deals with creative types — which is why it threw a party in La-La Land. And it’s working with Interpublic Group’s (IPG) Emerging Media Lab to let IPG’s advertising clients test how Joost slices and dices both programming and user data. In short, well-funded Joost basically isn’t going for the hard sell yet, either with advertisers (whom it’s charging only nominally) or with users, while it’s trying to see if they actually like the experience Joost is pushing.

Watching Joost must be what it was like when the cable networks got going: a new video experience with a splotchy menu of shows that only a few people were experiencing. Will it break out of the pack? Way too early to tell. At least Joost seems to know where it wants to go.

I posted an article this morning on CNNMoney.com suggesting that investors were perhaps a wee bit too exuberant about Terry Semel’s exit from the scene at Yahoo (YHOO). The stock rose 3% during the day Monday and added another 5% after the market closed. Today’s a different story. The stock has given back nearly everything it took Monday, trading down about 1% from Monday’s close. By late morning, Yahoo changed hands at $27.84, just 50 cents or so above where it ended last week.

Semel’s exit was the non-surprise surprise. Marketplace radio’s Kai Ryssdal found me on the freeway in Silicon Valley yesterday about twenty minutes before air time to talk about the news. (The text and audio of the interview are posted here.) My insta-analysis: Yahoo’s failure is all about Google (GOOG) and simply getting rid of Mr. Hollywood doesn’t change things much.

Investors also completely ignored Yahoo’s downbeat earnings commentary yesterday, though they’ve wised up today. Shares of mighty Goog, by the way, are practically unchanged today.