posted about 13 hours ago on techdirt
This week, our first place winner on the insightful side came in response to the absurd trademark battle between the San Diego and Salt Lake comic conventions, where the former played some licensing games with Rose City to try to bolster its argument. Aerie simply wasn't having it, for good reason: Seriously? Rose City didn't affiliate with the word "Comic Con", it affiliated with the entity of San Diego Comic Con. Someone forgot to tell SDCC that you cannot trademark a generic term. I don't see any jury finding for SDCC. I've been collecting comic books ever since the 1970's and everyone I know has referred to comic conventions as "comic cons". Just what the fuck does SDCC think "comic con" stands for? It stands for "comic convention". It's the same reason why you can't trademark "popcorn" and sue another company for having "popcorn" in the name of its business. SDCC stands a good chance of not just losing their lawsuit but also losing their trademark on "comic con". This would be a different story if the SDCC had simply called their event "Comic Con" and trademarked that, but they didn't, because they would never have been allowed to. Their event is called "San Diego Comic Con" NOT "Comic Con". lols In second place, we've got an excellent anonymous response to an absolutist anti-regulation commenter saying "I told you so" over the FCC's net neutrality repeal: It never ceases to amaze how little people like you actually know about how the Internet works. Here is a small clue for you: It has ALWAYS been regulated by the government. All that's changed is who's doing the regulating and what the rules are. Back in the late 70's, DARPA set the rules. And thankfully, they crafted them to do the most good for the most people. That's why it prospered: without rules it would have never gotten anywhere. In the 80's, other networks arose and were connected to the ARPAnet and then gradually subsumed by it. There's a reason it worked out that way and not the other way around: regulation. Effective, useful regulation. And so on. Regulation hasn't been perfect (I've been sharply critical from time to time) but it has largely succeeded in shepherding the Internet from a rather exclusive club to a national asset, a major driver of commerce, an educational treasure, a boon for culture, and a civic engagement platform. Pai proposes to light this on fire. And Verizon/Comcast/et.al. are standing by to pour gasoline on the flames. Whether you are left or right doesn't matter, you should be able to recognize this as an act of wanton vandalism. Since this staunch anti-regulation attitude is such a common refrain, for editor's choice on the insightful side we've got two more important counterpoints. First, it's another anonymous commenter making a comparison to Europe: The EU market is more regulated than the US one, and actually, it's even more competitive. It isn't strange, at least in cities, to have 6-8 ISPs (at least) competing with each other to give you the service. From what I've heard, Comcast will never hunt (or even want to) in AT&Ts or Verizons turf, and vice versa. That doesn't happen in the EU, where you see all major ISPs stabbing each other to get their share of the market. Still, the problem isn't with the regulation itself, but with the nature of it. You have pro-consumer regulation and anti-consumer regulation. It's up to you what you want: while an anti-consumer regulation "might" be better for business, it screws up you in one or other way. On the other hand, pro-consumer regulation might sound as worse for business, but you forget the fact that there is already an unbalance in consumer-vendor relationships: The vendor has the advantage, because it's his job. He knows better the market, the loopholes, the deals and in general, he has more information than the customer in that area. So in an apparently equal environment, you're the one who is going to get screwed. This is like the casinos, the house always wins. Next, it's Derek Kerton explaining some complications to the idea that regulation is the sole reason for telco monopolies in the first place: In part. But the real reason we have telecom oligopolies is because this industry is a "natural monopoly". https://en.wikipedia.org/wiki/Natural_monopoly It's not caused by regs. It's caused by naturally occurring: High CapEx to start Smaller Addressable market for new entrants Higher total costs of redundant infrastructures Economies of scale. John Stuart Mill first explored natural monopolies, concluding that these services should either be delivered by the government, or by a tightly regulated private monopoly. We tend to call these businesses "utilities". So, the market failure you say regs will cause is a real risk. The the market failure with no regs is a SURE THING. Given the choice of being thrown in a volcano (no regs, certain market failure), or flipping a coin - heads we throw you in the volcano, tails we don't (regs that may cause market failure)...you should prefer the coin toss. Over on the funny side, our first place winner comes from Rocky, who did some copy editing on our post about Germany's calls for backdoors into every internet-connected device: There is a spelling error in the article, it says 'written up a draft proposal' which I suppose should be 'written up a daft proposal'. In second place, it's Roger Strong with some dark irony regarding internet conspiracy nonsense: If some pig-ignorant inbred conspiritard spends his time listening to Alex Jones and posting birther and islamophobic wingnuttery, then at least it keeps him off the streets. It's not like he'll be elected President or appointed National Security Advisor. For editor's choice on the funny side, we head to our story about the world's angriest lawyer dropping a lawsuit supposedly after being told to by an unidentified "supervisor" at an unidentified company. Two different commenters mused about who and what this might be, with This Anonymous Coward proposing one possibility... Poor JLVD... His shift manager are McDonalds made him drop the case... ...and an anonymous commenter putting forth an even simpler hypothesis: Personally I believe that in this case immediate supervisor is pronounced mom. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2012, the ITU was holding its World Conference on International Telecommunications to try to, more or less, "fix the internet" (not that it was broken). Their ideas about speeding up infrastructure built-out were more likely to slow it down, and it was unclear who many of the new proposed rules actually covered. They rushed to approve a deep packet inspection standard in secret, then turned out to be really bad at secrecy. Amidst all this it was no surprise that Congress managed to pass a unanimous resolution telling the ITU to keep its hands off the internet. Ten Years Ago This week in 2007, Apple (while navigating the iPhone patent minefield) was proposing a plan to make extortion an explicit part of DRM, while Nielsen was for some reason trying to become a copyright cop. Perfect 10 was losing in its attempts to blame anyone with money for infringement, rather than the infringer while the MPAA, in an instance of extremely amusing irony, was forced to take its anti-piracy kit for universities offline for violating the GPL license on code therein. This was also the week that we saw the introduction of the PRO IP Act, which would be signed into law the following year. Fifteen Years Ago This week in 2002, file sharing was in the legal crosshairs as Morpheus and Grokster went to court. Deals site FatWallet challenged a crazy DMCA claim from Wal-Mart over posting sale prices, leading to a public outcry and, later in the week, Wal-Mart backed down. We got a good example of licensing insanity when Finnish taxi drivers were forced to pay for the music they play in their taxis, and in the least surprising news ever, analysis of broadband prices following the recent Comcast/AT&T Broadband merger showed that they were going up. Permalink | Comments | Email This Story

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The Privacy Shield framework is key to allowing personal data to flow legally across the Atlantic from the EU to the US. As we've noted several times this year, there are a number of reasons to think that the EU's highest court, the Court of Justice of the European Union (CJEU), could reject Privacy Shield just as it threw out its predecessor, the Safe Harbor agreement. An obscure but influential advisory group of EU data protection officials has just issued its first annual review of Privacy Shield (pdf). Despite its polite, bureaucratic language, it's clear that the privacy experts are not happy with the lack of progress in dealing with problems pointed out by them previously. As the "Article 29 Data Protection Working Party" -- the WP29 for short -- explains: Based on the concerns elaborated in its previous opinions ... the WP29 focused on the assessment of both the commercial aspects of the Privacy Shield and on the government access to personal data transferred from the EU for the purposes of Law Enforcement and National Security, including the legal remedies available to EU citizens. The WP29, assessed whether these concerns have been solved and also whether the safeguards provided under the EU-U.S. Privacy Shield are workable and effective. As far as the commercial aspects of Privacy Shield are concerned, the WP29 is unhappy about a number of important "unresolved" issues such as "the lack of guidance and clear information on, for example, the principles of the Privacy Shield, on onward transfers [of personal data] and on the rights and available recourse and remedies for data subjects." The issue of US government access to the personal data of EU citizens is even thornier. Although the WP29 welcomed efforts by the US government to become more "transparent on their use of their surveillance powers", the collection of and access to personal data for national security purposes under both section 702 of FISA and Executive Order 12333 were still a problem. On the former, WP29 suggests: Instead of authorizing surveillance programs, section 702 should provide for precise targeting, along with the use of the criteria such as that of "reasonable suspicion", to determine whether an individual or a group should be a target of surveillance, subject to stricter scrutiny of individual targets by an independent authority ex-ante. As regards the Executive Order 12333, WP29 wants the Privacy and Civil Liberties Oversight Board (PCLOB) "to finish and issue its awaited report on EO 12333 to provide information on the concrete operation of this Executive Order and on its necessity and proportionality with regard to interferences brought to data protection in this context." That's likely to be a bit tricky, because the PCLOB is understaffed due to unfilled vacancies, and possibly moribund. In conclusion, the WP29 "acknowledges the progress of the Privacy Shield in comparison with the invalidated Safe Harbor Decision", but underlines that the EU group has "identified a number of significant concerns that need to be addressed by both the [European] Commission and the U.S. authorities." It spells out what will happen if they aren't sorted out: In case no remedy is brought to the concerns of the WP29 in the given time frames, the members of WP29 will take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the CJEU for a preliminary ruling. That is, it will ask the EU's highest court to rule on the so-called "adequacy decision" of the European Commission, where it decided that Privacy Shield offered enough protection for EU personal data moving to the US. There's a clear implication that WP29 doubts the CJEU's ruling will be favorable unless all the changes it has requested are made soon. And without the Privacy Shield framework, it will be much harder to transfer personal data legally across the Atlantic. Moreover, the EU's data protection laws are about to become even more stringent next year, when the new General Data Protection Regulation (GDPR) is enforced. Organizations in breach of the GDPR can be fined up to 4% of annual global turnover, which means even the biggest Internet companies will have a strong incentive to comply. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey. Andrew Baker, associate professor of marketing at San Diego State University, reviewed the survey for Salt Lake Comic Con and testified Wednesday that the results are flawed. Because of risks he saw of "good participant bias," and because the online survey didn't include a way to weed out unreliable responses from people who may have attempted to fill out the survey for money, Baker criticized the results as inconclusive. "This study cannot be relied upon to tell us the percentage of people who think comic con is a brand," Baker testified. Bryan Brandenburg, one of the partners behind SLCC, took the stand to recount the process by which they came up with the name Salt Lake Comic Con. As you'd expect, he recounted searching around for other similar conventions, noting that nearly all of them were using the "comic con" phrase, or some variant of it, and concluding that this is just what those types of shows are called. It's an understandable position, particularly given the descriptive nature of the phrase. A "comic con" is a "comic convention." Simple. One would hope the jury would understand that simple fact. But there was some minor drama in the courtroom surrounding SLCC's desire to speak out about the case on its social media platforms, specifically to do with Brandenburg's testimony and the defense he would offer. The post announced that Brandenburg would take the witness stand to show that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world." Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, "tell him to bring his toothbrush with him." Notably, Brandenburg did not raise that defense on the stand, so His Honor was not forced to put him in jail. But this wasn't the only remark Judge Battaglia made on the subject. He expanded upon it in a way that shows him bristling with the striking down of his earlier gag order on SLCC from speaking at all about the case. "The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday. Well, okay then. While I've cheered on SLCC discussing the case in public for the benefit of that public, and while we were quite critical of Battaglia's gag order, the freedom to speak is not without its dangers. It's a little surprising that SLCC would be so cavalier with its public comments on social media sites that run directly contrary to the orders of a judge who had already tried to slap it with a gag order. That's just silly and a sign that, whatever happens moving forward, SLCC should probably get its PR house in order. Regardless, the jury is in deliberations and you can be sure we'll be commenting on the results they bring back. Permalink | Comments | Email This Story

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A key feature of e-commerce sites is the reviews from people who have used them previously. Such recommendations or warnings are even more important online than in the physical world, because it is much easier to set up a virtual shop than a real one, which makes scams a far greater risk online. However, the enhanced importance of site reviews also increases the incentive to create false ones. A cautionary tale about just how misleading reviews can be is provided by an entertaining post on Vice. In it, the journalist Oobah Butler describes how he turned a non-existent eatery into TripAdvisor's top-rated London restaurant. Or at least that's what he claimed. We should admit, up front, that since this story is about faking stuff on the internet, we should at least be open to the idea that the story of this faked restaurant review might also be... fake. Butler had the idea after earning money writing fake positive TripAdvisor reviews for restaurants he'd never been to. He started to wonder how many of the other positive reviews on TripAdvisor were similarly bogus. He idly considered whether it was possible for an entire restaurant to be fake -- that is, non-existent despite all the positive reviews. And then: one day, sitting in the shed I live in, I had a revelation: within the current climate of misinformation, and society's willingness to believe absolute bullshit, maybe a fake restaurant is possible? Maybe it's exactly the kind of place that could be a hit? In that moment, it became my mission. With the help of fake reviews, mystique and nonsense, I was going to do it: turn my shed into London's top-rated restaurant on TripAdvisor. There was nothing particularly sophisticated about Butler's methodology: he simply used lots of fake positive reviews, posted by real people on different computers so as to fool TripAdvisor's anti-scammer tools, to drive up the venue's ranking. He bolstered the plausibility of "The Shed at Dulwich" by creating a Web site -- theshedatdulwich.com -- and a suitably pretentious menu: Instead of meals, our menu is comprised of moods. You choose which fits your day, and our Chef interprets that. We can also tailor dishes for special occasions and at extra cost. For example: Contemplation A deconstructed Aberdeen stew; all elements of the dish are served to the table as they would be in the process of cooking. Served with warm beef tea. Butler included a few photos of dishes, still visible on the home page of the Web site. They look appetizing enough, but in his Vice post describing the project, he reveals that they are made out of things like bleach tablets, and plastic sponges covered in paint. One image shows a poached egg resting on a slice of bacon -- except that the bacon is actually Butler's naked foot. The Shed started out in April this year with a TripAdvisor ranking of 18,149, the worst restaurant in London, according to the site. So Butler piled on the reviews, and watched his ranking rise. The phone began to ring: people wanted to reserve tables at this non-existent restaurant. Butler told them it was booked up for weeks. Emails begging for bookings arrived, as did job applications to work at the business, and free samples from companies in the food industry. After just a few months, The Shed at Dulwich becomes London's top-rated restaurant on TripAdvisor, with 89,000 search result views in a single day. As Butler writes in his Vice post: A restaurant that doesn't exist is currently the highest ranked in one of the world’s biggest cities, on perhaps the internet's most trusted reviews site. He then did two things. First, he told TripAdvisor that he had managed to game its ranking system completely. Here's TripAdvisor's reply: "Generally, the only people who create fake restaurant listings are journalists in misguided attempts to test us," replies a representative via email. "As there is no incentive for anyone in the real world to create a fake restaurant it is not a problem we experience with our regular community -- therefore this 'test' is not a real world example." Well, maybe it isn't a "real world example", but it still shows how unreliable an online review system can be. In the case of The Shed, it wasn't that a few of the opinions for the restaurant were bogus, but that every single one was, and that nonetheless the venue ended up as the top-rated eatery in London according to TripAdvisor. Not surprisingly, the restaurant's page has been removed from the service, but there's an archived version to give you an idea of what it looked like at the height of its fake glory. The other action taken by Butler was that he opened The Shed for real. You can find out on Butler's Vice post what happened when customers were served microwaved ready meals, surrounded by actors at other tables loudly praising the food, and a DJ playing restaurant sounds in the background to create the right ambience. It's a great story, and a warning that we shouldn't take at face value what we find online -- or what we eat in the physical world. Assuming it's all true, of course.... Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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In the most illuminating part of last week's House subcommittee hearing on the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865), Tennessee Bureau of Investigation special agent Russ Winkler explained how he uses online platforms—particularly Backpage—to fight online sex trafficking. Winkler painted a fascinating picture of agents on his team posing as johns, gaining trust with traffickers, and apprehending them. His testimony demonstrated how, with proper training and resources, law enforcement officers can navigate the online platforms where sex work takes place to find and stop traffickers, especially those trafficking children. It was a rare moment of clarity in the debate over FOSTA and its sibling bill, the Stop Enabling Sex Traffickers Act (SESTA, S. 1693). Since these bills were introduced, there's been little discussion of how law enforcement officers use the online platforms that the bills would threaten and how SESTA and FOSTA would make it more difficult for law enforcement to do its work. Winkler made it crystal clear how heavily his work relies on online platforms: "We've conducted operations and investigations involving numerous perpetrators and victims. The one constant we encounter in our investigations is use of online platforms like Backpage.com by buyers and sellers of underage sex." There are some differences between SESTA and FOSTA, but their impact on the Internet would be the same. A website or other online platform could be liable under both civil and criminal law, at both the state and federal levels, for the sex trafficking activities of its users. Since it can be very difficult to determine whether a given posting online is in aid of sex trafficking, the bills would almost certainly force websites to become significantly more restrictive in what sorts of content they allow. Many victims of trafficking would likely be pushed off the Internet entirely, as well as sex workers who weren't being trafficked. Winkler didn't show much interest in the idea of targeting online intermediaries—and neither did fellow witness Derri Smith of End Slavery Tennessee. Understandably, their focus isn't on holding Internet companies liable for user-generated content; it's on prosecuting the traffickers themselves and getting trafficking victims out of horrific situations. When Rep. Marsha Blackburn asked both Tennessee panelists what they need to successfully fight trafficking, neither panelist mentioned proposals like SESTA and FOSTA at all. They discussed more important measures aimed at finding and stopping traffickers and supporting survivors. Winkler referenced changes in state law "to make it more punishable for both buyers and sellers of sex acts with juveniles." Winkler isn't the only person who's tried to explain to Congress how law enforcement relies on online platforms to find and arrest sex traffickers. Numerous experts in trafficking have pointed out that the visibility of online platforms can both aid law enforcement in apprehending traffickers and provide safety to trafficking victims. Trafficking expert Alexandra Levy notes that the online platforms that FOSTA could undermine are the very platforms that law enforcement agencies rely on to fight trafficking: While more visibility invites more business, it also increases the possibility that victims will be discovered by law enforcement, or anyone else looking for them. By extension, it also makes it more likely that the trafficker himself will be apprehended: exposure to customers necessarily means exposure to law enforcement. Levy submitted a letter to the House Energy and Commerce Committee, Subcommittee on Communications and Technology, in advance of last week's hearing, urging the Subcommittee not to go forward with a bill (.pdf) that would make it harder to apprehend traffickers and expose trafficking victims to more danger. Freedom Network USA—the nation's largest network of frontline organizations working to reduce trafficking—agrees (.pdf): "Internet sites provide a digital footprint that law enforcement can use to investigate trafficking into the sex trade, and to locate trafficking victims." Four months after SESTA was introduced in Congress—and with SESTA and FOSTA's lists of cosponsors growing by the day—lawmakers continue to flock to these bills without questioning whether they provide a real solution to sex trafficking. These bills would do nothing to stop traffickers but would push marginalized voices off of the Internet, including those of trafficking victims themselves. Reposted from EFF's Deeplinks blog Permalink | Comments | Email This Story

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I've been living in Silicon Valley for just about twenty years at this point, and lived through the original dot com bubble (got the t-shirt, etc.). And there are a few small signs that remind me quite a bit of the "bad stuff" that started to show up in the 1999/2000 time frame, just before everything collapsed. One of the biggest issues: the carpetbaggers. Basically, as things get frothier and frothier, a "different" kind of entrepreneur starts to show up. In the original dot com bubble, these were frequently described as "MBA's" -- but as someone with an MBA degree, I find that to be a bit misleading too. There were plenty of good, smart, tech-savvy MBAs who added value to the innovation community. The real problem was the people who came to (a) get rich and (b) party (not always in that order). Getting rich and having a good time aren't necessarily bad things, but if they're what you're focused on, then bad things tend to result. Lots of people like to mock the whole mantra of "we're changing the world" in Silicon Valley, and sometimes it deserves to be mocked. But... in many cases, there is actual truth to it. And, in many cases, there are entrepreneurs and innovators who really are trying to change the world and make it a better place. The problem is that you have the other element -- the carpetbaggers -- who show up with no actual interest in innovation or in making the world a better place, but who readily adopt the terminology and slogans of those who do. And, these days, we're seeing more and more of those types of people in the Valley. It's been happening for years, but it's been getting worse and worse lately. It's why people talk about "Techbros" with dumb, but flashy, company ideas, while ignoring entrepreneurs working away at truly world-changing products and services. I've been thinking more and more about this lately, especially as a whole bunch of stories have come out in the tech world (as in so many other industries) about sexual harassment and sexual assault. And, as in so many industries, this has been an issue for a long time around here -- and often not taken seriously. Earlier this year -- before many of the bigger stories came out -- I wrote about why Silicon Valley needs to get its act together and grow the fuck up. But with many of the revelations coming out, showing how widespread the culture of harassment (and assault) has been, it's a much bigger problem. That's why this story from Bloomberg is so flabbergasting. Even after all of this, to hear that some tech companies are hiring good looking models to attend their holiday parties is just so... dumb. Local modeling agencies, which work with Facebook- and Google-size companies as well as much smaller businesses and the occasional wealthy individual, say a record number of tech companies are quietly paying $50 to $200 an hour for each model hired solely to chat up attendees. For a typical party, scheduled for the weekend of Dec. 8, Cre8 Agency LLC is sending 25 women and 5 men, all good-looking, to hang out with “pretty much all men” who work for a large gaming company in San Francisco, says Cre8 President Farnaz Kermaani. The company, which she wouldn’t name, has handpicked the models based on photos, made them sign nondisclosure agreements, and given them names of employees to pretend they’re friends with, in case anyone asks why he’s never seen them around the foosball table. To be honest, the story is so dumb, and no companies are actually named, that I'm wondering how much of this story is actually planted by the modeling companies hoping to make it reality. But... these days, we're hearing about so much bad behavior that it may very well be happening. And I saw more than a few people commenting on Twitter that this seemed like something straight out of HBO's Silicon Valley. Which leads me into another thought that I've been toying with recently. Last time I was in Washington DC, some friends based there were asking me what I thought of the show, and I said that for all of its famed "accuracy," I thought it was ruining the actual Silicon Valley. My friends suggested this was ridiculous, since the show clearly made most of the protagonists out to be fairly buffoon-like, and worthy of mockery. But... without other guidance, it really feels like many people are arriving in Silicon Valley with the HBO show as their mental model of how things are supposed to be. And, even if the show is "truthy" in how it portrays certain people/activities, it does so for the sake of entertainment. Thus, it only presents the really exaggerated versions, and creates entertaining caricatures of certain types of people, while leaving out the many, many, other people who actually get real shit done here, without being buffoons or assholes. People out here, for the most part, still love the show, because they recognize elements of reality within those characters and events -- but it misses out on the nitty-gritty of how stuff gets done and the fact that some people are legitimately doing good stuff without being horrible people. But if everyone now coming into Silicon Valley is coming in with HBO's Silicon Valley as their model -- too many are looking at the show as an instruction manual, rather than a giant warning sign of what not to do. In some ways, it reminds me of the classic 90's indie film Swingers with Jon Favreau and Vince Vaughn. When it came out, I remember lots of guys trying to "take lessons" from the movie in how to pick up women, even though the entire point of the movie was to make fun of those people with their tricks and rules and games. Assuming that story of hiring models for parties really is true, it feels like yet another brick in this problematic wall of "techbro" culture taking over from what has always been the true core of Silicon Valley, involving non-assholes who really are changing the world. It would be great if we could get more of that, and less of the HBO version, no matter how entertaining it might be. Permalink | Comments | Email This Story

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Do you want to use Excel to solve complex problems, automate spreadsheets, and master graphs for presentations instead of going crazy trying to figure out how? Well, here's where you'll learn. The Microsoft Excel + Advanced Excel Bundle will cover all the basics of Microsoft Excel and help you break through to an absolute mastery. Soon you'll be crunching data, using advanced formulas, creating impressive graphs and charts like a pro, and much more. The two courses with 48 hours of content are on sale for $29. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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You'll perhaps recall that broadcast and cable executives spent years denying that TV cord cutting was even happening. Ultimately that head-in-the-ground thinking "evolved" to the point where sector executives admitted that sure, cord cutters are real, but they're little more than 40-year-old nobodies living in mom's basement -- and not something to actually take seriously. As the data began to indicate that cord cutting was a very real phenomenon that thinking has finally started to subside, though the industry by and large has responded by doubling down on the bad ideas that brought us to this point in the first place. There's still a sect of broadcast and cable executives and analysts that truly believe this shift from bloated, pricey channel bundles to cheaper, more flexible streaming alternatives is just a fad kooky kids are going through. And there's more than a few sector executives who believe this will all magically end as younger generations procreate and buy new homes. Of course that's not really supported by the facts, with most Millennials and younger generations being "cord nevers" -- who fail to see the point of subscribing to expensive bloated channel bundles in the era of YouTube and Twitch. A new report by the Diffusion Group highlights again how this isn't just some temporary hiccup in the tastes of fussy viewers. The group predicts that at the current pace of customer defections from cable, the number of US households that subscribe to traditional cable will drop from 81% this year to 60% in 2030: "Generally, TDG expects that the penetration of live multi-channel pay-TV services will decline from 85% of US households in 2017 to 79% in 2030. While statistically a loss of only 7%, it nonetheless illustrates the ongoing secular decline of a once healthy market space. TDG predicts that, by 2030, roughly 30 million US households will live without an MVPD service of any kind, be it virtual or legacy. During this time, legacy MVPDs will experience considerable subscriber losses, due not only to long-term industry trends but also growing competition from virtual pay-TV providers. Consequently, legacy pay-TV penetration will fall from 81% of US households in 2017 to 60% in 2030, down 26%. At the same time, virtual pay-TV penetration will grow from roughly 4% of US households to 14%, up 350% but from a very small base. And while some traditional, legacy TV viewers will flock to "virtual" streaming alternatives like AT&T's DirecTV Now or Dish's Sling TV, those services cost significantly less than traditional cable options (which usually clock in at $110 or more per month). That's why most cable providers have been so busy imposing arbitrary and unnecessary usage caps and overage fees on broadband connections, as it allows them to counter these lost TV revenues (with the added bonus of hamstringing competing services that aren't zero rated, something you'll see a lot more of thanks to the looming death of net neutrality). Needless to say, the report highlights how cable providers still need to get out ahead of this shift, instead of just paying empty lip service to adaptation: "TDG said early on that the future of TV was an app. Unfortunately, most incumbent MVPDs weren't taking notes," notes Joel Espelien, TDG Senior Analyst. "The question is no longer if the future of TV is an app, but how quickly and economically incumbents can adapt to this truth and transition to an all-broadband app-based live multi-channel system." Again though, industry executives weren't just "not taking notes," they were actively trying to ignore a massive, wholesale shift in how their business sector operates. Most of the entrenched cable operators could easily nip this entire shift in the bud by simply competing on price and bundle flexibility. But instead, countless cable and broadcast executives continue to just double down on legacy turf protection and rampant rate hikes -- in the false belief that the traditional TV cash cow they've been milking for decades is somehow immortal. Permalink | Comments | Email This Story

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While the United States is busy giving the world a crash course on what telecom regulatory capture looks like, India is taking a decidedly different tack with net neutrality. Last year, the Telecom Regulatory Authority of India (TRAI) began laying the groundwork for some real, tough net neutrality rules aimed at protecting their internet markets and consumers from anti-competitive ISP behavior. Here in the States, our soon-to-be-discarded rules left some fairly gaping loopholes governing "zero rating," which allows ISPs to impose often arbitrary and unnecessary usage caps, then exempt their own content while hindering competitors. But when the TRAI released its net neutrality guidelines (pdf) late last month, they made it clear that the rules would not only protect against throttling, blocking, or other ham-fisted anti-competitive behavior, but would also be putting the kibosh on zero rating. In previous statements, TRAI had made it abundantly clear that ISPs consistently use artificial scarcity and usage caps to engage in anti-competitive shenanigans via this practice (a realization the FCC in the United States only made after it was too late): "...differential tariffs result in classification of subscribers based on the content they want to access (those who want to access non-participating content will be charged at a higher rate than those who want to access participating content). This may potentially go against the principle of non-discriminatory tariff. Secondly, differential tariffs arguably disadvantage small content providers who may not be able to participate in such schemes. This may thus, create entry barriers and non-level playing field for these players stifling innovation. In addition, ISPs may start promoting their own websites/apps/service platforms by giving lower rates for accessing them." Indian consumers received a crash course on the downside of zero rating thanks to Facebook and its "Free Basics" program. Under the initial version of Free Basics, users obtained free access to a walled garden version of the internet, filled with Facebook-curated content. And while Facebook repeatedly tried to claim it was simply really concerned about helping poor Indian farmers, critics began to notice that Facebook was really just trying to corner the ad market. They also began to realize that letting the social media giant determine winners and losers online wasn't a particularly smart idea. Facebook boss Mark Zuckerberg responded indignantly to these charges, arguing that those that didn't like Facebook's plan to AOL-ify the internet in India were simply enemies of the poor. But critics like the EFF persisted, noting that Facebook's approval process not only banned sites that used encryption, but was even opposed by many content partners. Outfits like Mozilla, meanwhile, argued that if Facebook was so concerned with connecting the poor, why not pay to connect them to the actual internet and avoid any controversy? Despite some pretty sleazy lobbying efforts by Facebook (including trying to trick users into opposing real net neutrality), Indian regulators proceeded last month to ban this and all other anti-competitive shenanigans, crafting what are now some of the toughest net neutrality rules anywhere. Not only is zero rating banned, but so are the more traditional ways ISPs try to abuse a lack of competition (throttling, outright blocking, unfair paid prioritization). Needless to say, net neutrality activists in India are thrilled that their regulators actually listened to consumers and innovators: "The debate ... that this ruling was about was essentially the same one that’s taking place in the US, about whether certain sites should be available at faster speeds,” said Nikhil Pahwa, a digital rights activist who's been a leader in India's fight for net neutrality. “And the Indian regulators essentially ruled that there needs to be non-discriminating practices by [internet service providers], where they don’t give preferential treatment to one side or the other." Pahwa has been a vocal advocate for net neutrality in India and was a key player in getting India to stop differential pricing for data services last year. “Net neutrality ensures that there’s free and fair competition on the internet, instead of a situation without net neutrality where the [internet service providers] pick winners,” Pahwa said, adding that “India’s been at the forefront of this battle." This is all of course the polar opposite of what's now occurring in the States, where FCC boss Ajit Pai is preparing to obliterate what were already quite modest protections by international (Japan, Canada, India, The Netherlands) standards. And, much like the record 20+ million consumers that oppose Pai's plan, Indian Americans are equally flummoxed by FCC boss Ajit Pai's grotesque handout to what's potentially the least-popular industry in America. Permalink | Comments | Email This Story

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At the start of the year, we wrote about a call for Russia to make its Internet infrastructure resistant to external attempts to shut it down, and able to work in isolation if need be. It looks like the authorities are moving ahead with the idea: The Russian Security Council has asked the country's government to develop an independent internet infrastructure for BRICS nations, which would continue to work in the event of global internet malfunctions. The RT news story has some details on how the BRICS subnet will work: They decided that the problem should be addressed by creating a separate backup system of Domain Name Servers (DNS), which would not be subject to control by international organizations. This system would be used by countries of the BRICS bloc -- Brazil, Russia, India, China and South Africa. The plan has evidently developed from a purely Russian intranet system to one that includes the other BRICS nations. Creating additional DNS servers will be easy, so there's no reason why it shouldn't happen -- not least because Putin has "personally set a deadline of August 1, 2018 for the completion of the task". Perhaps the most interesting aspect of the story is the following comment by Putin's Press Secretary, Dmitry Peskov: "Russia’s disconnection from the global internet is of course out of the question," Peskov told the Interfax news agency. However, the official also emphasized that "recently, a fair share of unpredictability is present in the actions of our partners both in the US and the EU, and we [Russia] must be prepared for any turn of events." That offers a pragmatic recognition that disconnection from the global Internet is no longer an option for a modern state, even if Iran begs to differ. It's true that local DNS servers provide resilience, but they also make it much easier for a government to limit access to foreign sites by ordering their IP addresses to be blocked -- surely another reason for the move. This latest proposal is part of a long-running campaign by Russia to wrest control of key aspects of the Internet -- such as the DNS system -- from international bodies, for example during the ITU's World Conference on International Communications (WCIT) in 2012. Russia already had the support of other BRICS governments back then, which suggests they will back the new approach. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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It's well known that the EU has laws offering relatively strong protection for personal data -- some companies say too strong. Possible support for that viewpoint comes from a new data protection case in the UK, which follows EU law, where the judge has come to a rather surprising conclusion. Details of the case can be found in a short post on the Panopticon blog, or in the court's 59-page judgment (pdf), but the basic facts are as follows. In 2014, a file containing personal details of 99,998 employees of the UK supermarket chain Morrisons was posted on a file-sharing Web site. The file included names, addresses, gender, dates of birth, phone numbers (home or mobile), bank account numbers and salary information. Public links to the file were placed elsewhere, and copies of the data sent on a CD to three local newspapers, supposedly by someone who had found it on the Internet. In fact, all the copies originated from Andrew Skelton, a Senior IT Auditor in Morrisons, as later investigations discovered. According to the court, Skelton had a grudge against the company because of a disciplinary process that took place in 2013. As a result of the massive data breach in 2014, Skelton was sentenced to eight years in prison. The current case was brought by some 5,500 employees named in the leaks, who sought compensation from Morrisons. There were two parts to the claim. One was that Morrisons was directly to blame, and the other that it had "vicarious liability" -- that is, liability for the actions or omissions of others. The UK judge found that Morrisons was not directly liable, since it had done everything it could to avoid personal data being leaked. However, as the Panopticon blog explains: having concluded that Morrisons was entirely legally innocent in respect of Skelton's misuse of the data, the Judge held that it was nonetheless vicariously liable for Skelton's misdeeds That is a legal bombshell as far as UK privacy law is concerned, since it means that a company that does everything it reasonably can to prevent personal data being revealed can nonetheless be held vicariously liable for the actions of an employee, even a malicious one. That clearly offers an extremely easy -- if potentially self-damaging -- route for disgruntled employees who want to harm their employers. All they need to do is intentionally leak personal data, and the company they work for will have vicarious responsibility for the privacy breach. In fact, even the judge was worried by the implications of his own decision: The point which most troubled me in reaching these conclusions was the submission that the wrongful acts of Skelton were deliberately aimed at the party whom the claimants seek to hold responsible, such that to reach the conclusion I have may seem to render the court an accessory in furthering his criminal aims. As a result, the judge granted leave for Morrisons to appeal against his judgment that it was vicariously liable. Hundreds of thousands of companies around the UK will now be hoping that a higher court, either nationally or even at the EU level, overturns the ruling, and sets a limit on those super-strong data protection laws. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Our regular readers will know that we've been covering the years-long trademark lawsuit between the famous San Diego Comic-Con and the Salt Lake ComicCon since the very beginning. The whole thing has been something of a saga, with the SDCC issuing various threats and filing a lawsuit, while the SLCC has managed to fumble its way through court, getting slapped around for attempting various counter-logical defenses and even getting a gag order on it temporarily, unconstitutionally barring it from talking about the case publicly. Well, the court heard opening statements in the case this past week, with the SDCC trotting out the same studies it had presented during the pre-trial motions. Callie Bjurstrom, attorney for San Diego Comic-Con told jurors that Salt Lake Comic Con hijacked the Comic-Con trademark. That it “remained a small, intimate comic convention for decades” and that it wasn’t until the early 2000s that “the secret was out: Comics were cool and Comic-Con was the place to be to catch what was hot and what was next”. And as hundreds of similar conventions sprang up in cities across the country, Salt Lake Comic Con tried to “hijack” the trademark, to “steal the Comic-Con brand” saying “You don’t need to use ‘Comic-Con’ in your name to identify your comic and popular-arts convention… Convention is a generic term. Comic-Con is a brand” and that Salt Lake Comic Con is duping consumers into believing their events are associated, especially when they parked an Audi convertible near the San Diego Convention Center during the 2014 show, wrapped with promotions for the Salt Lake event. SDCC commissioned a study that showed 82 percent of consumers recognize Comic-Con as a brand – a higher brand recognition rate than Jello and that “You don’t take or steal something that’s not valuable.” Of course, the problem with this study is that no matter what the public in the SDCC's sample indicated, the simple fact is that comic conventions throughout the country have been using the term "comic con" with wild abandon. As they did so, it seems that the SDCC was in some sort of trademark hibernation for years, with no action against all of these national comic cons that I can find. SLCC made the same point in its opening argument, their defense seemingly settling on the notion that the term "comic con" had become generic. Attorneys for the Salt Lake Comic Con and Dan Farr Productions said the phrase has become generic, part of the public commons, and therefore unprotectable. Michael Katz with Maschoff Brennan said that “Comic Con” is a generic term used to refer to a type of convention and that the show “looked to the industry” in naming their convention in 2013. “They used the same formula: Salt Lake to refer to where they were, and Comic Con to refer to what they were”. That Comic Con was a “national brand” and there could be no confusion between the one in San Diego and the one in Utah, which he called a “flyover state”, and that theirs was a “homegrown” event where four out of five attendees came from Utah, and it was so specific to the state that it didn’t run on Sundays because of Utah’s large religious population. And that “I don’t think we’re here because of large numbers of people confusing San Diego Comic-Con with Salt Lake Comic Con. … They have not been harmed by little Salt Lake. They have not lost a single customer to us. We are small potatoes”. It seems that the SDCC fully anticipated this defense and decided to attempt to undermine it by finding a comic con out there, any comic con, to enter into a laughably cheap licensing agreement. That SDCC is doing this only at the same time it is bringing this suit to trial makes its motive plain and naked. It's a shameless attempt to give its long-abandoned trademark the imprimatur of now having an actual licensee. As disappointing as the SDCC's actions are, those of the sellout cons are all the more so. Just read the press release from Rose City Comic Con in Portland about how it licensed the "comic con" mark and you'll get an idea of just how likely it is that the SDCC basically scripted this thing for them. “Rose City Comic Con, Portland, Oregon’s largest comics and pop-culture convention, is proud to announce its association with San Diego Comic Convention for its three-day event taking place September 7-9, 2018 at the Oregon Convention Center. Rose City Comic Con received the license at no additional cost to the show, and acknowledges the trademark owned by San Diego Comic Convention and is excited to affiliate itself with the prestigious event.” “Comic-Con, the San Diego convention, is without question the biggest and most important event in the comics and popular arts industry every year. To have the respected event recognize the hard work of Rose City Comic Con by providing a license agreement is really remarkable for the city of Portland and the incredible community of creators we’re lucky to have here,” said Rose City Comic Con founder Ron Brister. So moist does Rose City seem to be over its free license that it must have failed to understand the motive for this free gift by the SDCC and the damage it might do to all of the other comic cons out there that are now or might in the future be under threat by SDCC. Now, I don't believe that SDCC managing to squeeze a few licensees from this national barrel of turnips suddenly means that it didn't long ago abandon the "comic con" mark, but it seems obvious that these sorts of free licenses aren't for everyone. I expect the SLCC, for instance, would have jumped at a free license early on in this process. Perhaps it would instead have stood its ground on principle, but given the enormous cost in time and money, not to mention that this thing has dragged out now for several years, I doubt it. So nice job, Rose City. While one con fights not just for its life, but for the common sense notion that "comic con" should no longer be considered a legit trademark, you went full Judas. Hope those 30 pieces of silver are worth it. Permalink | Comments | Email This Story

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If you take a quick look through the long history of posts we've done on the subject of site-blocking as a method for combating piracy, you'll notice that we've been fairly critical of the courts in various countries, which are issuing the blocking orders commonly. Here in America, the story is essentially the same, with only minor differences in the laws or lack of laws between each country causing barely different legal justifications for the censorship of sites that one entertainment group or another says is infringing. Too often, the courts appear to take plaintiff claims of infringement as gospel, where in some countries there is even a governmental framework that seems perfectly designed to abuse this process and have compliant courts exert as much collateral damage as possible. Our point all along is that there needs to be a refining of this process to keep the censorship out of the results and ensure that no speech that ought to be protected is caught up in the mix. It should go without saying that the new plan being concocted by Canadian ISPs and various entertainment groups is not what we had in mind. A coalition of movie industry companies and ISPs, including Bell, Rogers, and Cineplex are discussing a proposal to implement such measures. The Canadian blocklist would be maintained by a new non-profit organization called “Internet Piracy Review Agency” (IPRA) and enforced through the CTRC, Canadaland reports. The new proposal is being discussed by various stakeholders including ISPs and local movie companies. As in other countries, major American movie companies are also in the loop, but they will not be listed as official applicants when the plan is submitted to the CRTC. If something appears to be missing in all of that, it's probably because the plan doesn't make any room for anything resembling judicial oversight or the court system. Rather, this would all be implemented without any court orders or even filings from any actual copyright holder. Instead, rightsholders would inform ISPs that a site is "blatantly, overwhelmingly or structurally" built purely to engage in copyright infringement, and the ISPs would take it down. I'm sure the idea is to keep this to the most egregious of sites that are often quite bare of legitimate and protected speech, except we already know just how shitty ISPs are at being copyright cops, so it seems clear that they'll be relying almost exclusively on the word of rightsholders to implement these site-blocks. Critics, including Michael Geist, are not pleased. “Recent history suggests that the list will quickly grow to cover tougher judgment calls. For example, Bell has targeted TVAddons, a site that contains considerable non-infringing content,” Geist notes. “It can be expected that many other sites disliked by rights holders or broadcasters would find their way onto the block list,” he adds. Fortunately, all of this would have to go before the Canadian government before going into operations, and the CRTC doesn't seem to be all that enthused. Thus far, the Government appears to be reluctant in its response. In comments to Canadaland spokesperson Karl Sasseville stressed that Canada maintains committed to an open Internet. “Our government supports an open internet where Canadians have the ability to access the content of their choice in accordance to Canadian laws,” Sasseville says. “While other parts of the world are focused on building walls, we’re focused on opening doors‎.” The timing of this is also quite poor, given the unfortunate conversation about net neutrality that is occurring with Canada's sub-friendly neighbors to its south. See, site-blocking has never been fully conflated with net neutrality thus far, in large part because the courts have been an admittedly imperfect check on telecom industry power abuse. But in this plan there is no court to provide that check, only a loose government agency oversight twice separated from the ISPs actions by a newly crafted non-profit. Meanwhile, of course, the very attempt to skirt any representatives of the democratic government and its court system is about as against the public interest as it gets, as Geist points out. “The government rightly seems dismissive of the proposal in the Canadaland report but as leading Internet providers, Bell and Rogers should be ashamed for leading the charge on such a dangerous, anti-speech and anti-consumer proposal,” Geist concludes. Here, here. Permalink | Comments | Email This Story

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Taking a page from the telecom and banking sector playbooks, New York City hotels have decided to add a $25 "destination fee" just for the honor of being able to sleep somewhere near the audio visual cacophony that is Times Square. Major hotel chains like Hilton, Marriott and Starwood are all adding the new destination fees, which aren't part of the advertised rate -- and are only added to the final tally at checkout. Said fees mirror other "resort fees" used to jack up advertised rates in other destination locations like Hawaii, the Florida coast, or Las Vegas. In many instances, the fee is being called an "urban destination charge," and is being applied each day of a customer's stay: "But this week, a guest booking a room at the Hilton New York was alerted as he finalised payment that a “Daily Mandatory Charge” of $25 would be added to the room rate, covering an “Urban Destination Charge”, “premium” internet access, local and freephone calls, and a total of $25 credit for food and drink in the hotel. The credit, it turned out, is a one-off figure – though the Urban Destination Charge is due every day of the stay." If you've paid attention to the problems in the telecom sector, you've probably realized that this is now standard industry procedure. Cable and phone companies alike often make up entirely nonsensical fees (with names like the Internet Cost Recovery fee or Broadcast TV fee) with the express goal of advertising one price, then charging another. To add insult to injury, they'll then crow about how their advertised rate has remained the same from year to year. That's been an obvious case of false advertising for going on a decade, yet legal or regulatory accountability for the misleading charges remains elusive at best. In telecom, the FCC had made a little noise about cracking down on the misleading surcharges in the form of a "nutrition label" for broadband that would clearly disclose any caveats, but that effort appears to have stalled. In the hotel industry where competition makes such action less pressing, the FTC gave hotels a fairly tepid warning about the practice in 2012, stating that the practice of hidden fees "may be deceptive" and "may violate the law." Hints that a new FTC crackdown on the practice was coming similarly emerged last year, only to apparently disappear back into the swamp of regulatory intent and good intentions. Just like in the telecom industry, when hotels are asked whether jacking up the advertised rate post sale could be construed as predatory and obnoxious, they'll usually trot out some rubbish about how the practice enhances the "customer experience." Take this bit of prattle from Starwood owners Marriott International, for example: "The Destination Fee was created as a way to lift the guest experience by providing added value to a hotel stay. Each hotel may offer a combination of hotel services (such as dry-cleaning, pressing or a food & beverage credit); local experience vouchers for free/discounted events and attractions (such as city tours), and/or access to fitness programs (such as yoga or cycling) in nearby studios..."The implementation of the Destination Fee gives us the opportunity to test how a bundle of benefits that our research shows are valuable to guests might enhance the stay." Of course that's bullshit, since not knowing what the hell you'll actually be paying for your room kind of puts a damper on the entertainment value of the whole affair, and users are usually docked these fees regardless of whether they use amenities or not. The goal again is to falsely advertise a lower rate, full stop. That may be a problem for competitors foolish enough to clearly advertise their real rates, since they superficially could appear to be a worse value. On the flip side, hitting your visitors with obnoxious, hidden fees is a wonderful way to help drive business to the share economy competitors these companies have been whining about for the better part of a decade. Permalink | Comments | Email This Story

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Long time readers of Techdirt may know (as I've noted several times), that in the mid-2000s when the net neutrality debate was first heating up, I was against the FCC putting in place rules to protect net neutrality. As I explained at the time, the concept of net neutrality was important, but I had so little faith in the FCC that I expected any rules it put together would cause more harm than good. I similarly argued that the fight over net neutrality was really a symptom of a larger problem (the lack of competition in the broadband market), rather than the problem in itself. I was also heavily influenced by a paper that Professor Ed Felten wrote in 2006 called Nuts and Bolts of Network Neutrality, which mostly (as the title suggests) goes through the various arguments for and against net neutrality rules. But it concludes with a position I agreed with for a while: that while net neutrality was important, actual rules that protected it would be tricky to get right -- and the "best" policy might just be the "threat" of rules should broadband providers engage in bad behavior. Thus, that threat, might prevent bad behavior, without having to put in place bad rules: Net neutrality advocates are right to worry that ISPs can discriminate—and have the means and motive to do so—in ways that might be difficult to stop. Opponents are right to say that enforcing neutrality rules may be difficult and error-prone. Both sides are right to say that making the wrong decision can lead to unintended side-effects and hamper the Internet’s development. There is a good policy argument in favor of doing nothing and letting the situation develop further. The present situation, with the network neutrality issue on the table in Washington but no rules yet adopted, is in many ways ideal. ISPs, knowing that discriminating now would make regulation seem more necessary, are on their best behavior; and with no rules yet adopted we don’t have to face the difficult issues of linedrawing and enforcement. Enacting strong regulation now would risk side-effects, and passing toothless regulation now would remove the threat of regulation. If it is possible to maintain the threat of regulation while leaving the issue unresolved, time will teach us more about what regulation, if any, is needed. So, what changed, leading me to eventually move to supporting the Open Internet Order of 2015? Well, as Felten predicted (he's good at that sort of thing...), the market continued to develop, legal precedent got set, and we got a lot more information on what was happening. On top of that, we got decent (though not perfect) rules from the Wheeler FCC, which were non-burdensome, and did quite a lot of good. I wanted to explore in greater detail what it was that made me change my opinion on this -- and I'll do it while also countering someone else's arguments. A bunch of people have been pointing me to what Ben Thompson from Stratechery has been saying about net neutrality over the past couple weeks. Ben is very smart and extraordinarily insightful on issues related to innovation and policy, and I probably agree with him about 85% of the time. Thus I do find it interesting to explore where we disagree -- and net neutrality is one of those places. But what's most interesting to me is that after going through Ben's thoughts on this multiple times, I think that he's really in the place I found myself a decade ago -- supporting net neutrality, but being weary of the FCC's implementation. So, as part of my reasoning for why I changed my mind, I'll also try to explain why Ben should change his mind as well. If you haven't followed Ben's statements here's his original blog post, which was initially called "Why Ajit Pai is Right," but was later changed to "Pro-Neutrality, Anti-Title II." His second blog post on it was entitled The Broadband Tradeoff; The Importance of Antitrust. Finally, he did a podcast discussing his views called Two Terrible Options, which focuses on the supposed "tradeoffs" between the current rules and Pai's plan, arguing that he thinks Pai's plan is better for actually keeping net neutrality. But he, unfortunately, bases that conclusion on a series of incorrect or misleading facts, some of which I'll try to correct below. Ben's starting premise -- which I agree with -- is that there are tradeoffs to any regulations and he, like me, comes from a starting place of being skeptical of the need for regulation without significant evidence that it is necessary. Any regulatory decision — indeed, any decision period — is about tradeoffs. To choose one course of action is to gain certain benefits and incur certain costs, and it is to forgo the benefits (and costs!) of alternative courses of action. What makes evaluating regulations so difficult is that the benefits are usually readily apparent — the bad behavior or outcome is, hopefully, eliminated — but the costs are much more difficult to quantify. Short-term implementation costs may be relatively straightforward, but future innovations and market entries that don’t happen by virtue of the regulation being in place are far more difficult to calculate. Equally difficult to measure is the inevitable rent-seeking that accompanies regulation, as incumbents find it easier to lobby regulators to foreclose competition instead of winning customers in an open market. Ben's second point, then, is on the difference between ex ante (beforehand) and ex post (afterwards) regulatory regimes, noting that ex post regimes can allow for more experimentation that can be good: I absolutely support regulation of ISPs and the preservation of the neutrality (at least in terms of blocking content), I just think we should stick to ex-post instead of ex-ante until there is compelling evidence of systematic abuse. And, again, that was my position more than a decade ago, and remained as such for quite some time. Here's why I've changed my mind. First, Ben's position (and the position of everyone, including Ajit Pai) who insist that there's no evidence of "systematic abuse" are (conveniently) ignoring (or are unaware of) the long history here. This is not a situation where broadband providers have shown no interest in abuse. They have regularly and clearly stated their intent to systematically abuse their dominant position in the market. As we've discussed, this goes back to AT&T's former CEO Ed Whitacre declaring, back in 2005, his intent to charge edge providers for daring to be what his broadband subscribers demanded from the network: "Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!" But -- Pai, Ben and others may retort -- since then there hasn't been any evidence of them actually doing so. First off, that's not entirely true. There is a decently long list of examples of bad behavior by broadband providers (though Pai and his supporters like to dismiss those as anomalies). But the more important point is that it's always been the Feltenesque threat of rules that have kept the big broadband providers in check. Because it was right around the time that Whitacre announced his intention to start charging edge providers, that then FCC chair Michael Powell had released his guiding principles paper on "preserving internet freedom" that noted the FCC needed to "keep a sharp eye on market practices" to stop broadband ISPs from doing things like blocking competing services. And, soon after that, the FCC fined Madison River for blocking VoIP services. In other words, the FCC had made it clear that it would crack down on such bad behavior that the big broadband players had clearly stated they planned to engage in. Of course, what followed after that was a series of attempts by the FCC to enforce such rules against other abuses, where the courts repeatedly told the FCC that it didn't have the authority to punish the broadband providers if they were classified as Title I information services. So, you have to know all of this history to understand the threat of systematic abuse. Ben claims that there's no evidence of it, but that's not true. There are the stated intentions of the broadband companies to abuse net neutrality. Beyond the Ed Whitacre statement above, during one of the lawsuits against the FCC (filed by Verizon over the 2010 rules), the company flat out said in court that it intends to violate net neutrality and would do so if the rules were not in place: "I'm authorized to state by my client today that but for these rules, we would be exploring those types of arrangements," Verizon's attorney, Helgi Walker, said at the time. So, again, we have multiple examples of the broadband players directly saying that they would violate net neutrality if given the opportunity -- repeatedly held in check by an FCC that tried to set rules saying it wasn't allowed. But eventually, the courts made it clear that such rules were not enforceable under Title I, and the only way to make rules that stick is under Title II, which the Tom Wheeler Open Internet Order finally did. In other words, the big broadband providers have been clear that they intend to violate net neutrality. They were only held in check by the FCC, but the courts had twice thrown out attempts at rules, until Wheeler reclassified to Title II -- which the courts have since blessed. Given that history, it's reasonable to shift from my Feltonian position of a decade ago to one where it seems fairly obvious that if we are to keep neutrality, we need Title II to make it work. That's exactly what the courts have said. That's not the only reason either. Another thing that had become clear over the intervening decade was that these broadband companies had only grown larger, more dominant and more powerful -- along with a long history of horrible customer care (being so dominant does that) and outright nefarious behavior (leading to various fines). Going back to the Powell days, where he insisted that broadband-over-powerlines was the Great Broadband Hope for competition, we've seen consistently less and less competition in the broadband realm. In short, the situation has consistently gotten worse on the competitive front, at the same time the big players have insisted that they intend to initiate bad behavior, and the only check against that bad behavior (the possibility of rules from the FCC) got shot down in the courts until they were reclassified as Title II. Put all that together, and if you support net neutrality, as Ben claims to, there's almost no argument against Title II. But, while we're at it, we need to correct a few other misconceptions put forth by Ben (and some other supporters of Pai's plan). First, is the idea that this can all be dealt with via antitrust and the FTC. As we noted recently, depending on the outcome of an AT&T lawsuit, the FTC may be blocked from having any regulatory say over broadband providers as well. Relying on the FTC is unlikely to solve many of the problems put forth by violating net neutrality, because they don't fall under areas where the FTC can regulate -- whether it's false advertising/misleading users or outright scams. Ben, somewhat oddly, makes a number of other factual errors during his podcast. He claims that the 2015 rules have really only caused problems for small ISPs because of the burdensome cost of those regulations. That's... wrong. A whole bunch of those ISPs told the FCC they want the rules to remain. They're not the ones agitating to remove the rules. Indeed, they point out that by killing the rules and consolidating the power of the giant broadband players (i.e., AT&T, Verizon, Comcast) it creates an even more unfair market. Those giants can craft deals with internet services and companies that make it harder for the smaller ISPs to compete. Along those same lines, Ben insists that the 2015 rules are obviously costly in compliance terms. But there is no compliance issue. There's nothing you need to do to comply other than not block, not prioritize, and not throttle. If you read the 8 pages of actual rules, there's no compliance issue if you're not violating net neutrality. As one small ISP, Sonic, has noted, the 2015 order is only a regulatory burden if you plan to violate net neutrality. And that's because there are some provisions for services that want to violate net neutrality, whereby they'd need to ask the FCC for permission to do so: The Commission may waive the ban on paid prioritization only if the petitioner demonstrates that the practice would provide some significant public interest benefit and would not harm the open nature of the Internet. Another point that Ben and others have raised, partially correctly, but mostly misleadingly, is that the key issues that people point to recently on the net neutrality front: interconnection disputes and zero rating, were not covered by the 2015 order. In one sense, this is accurate. Indeed, one of our big complaints with the 2015 rules was that they left these loopholes in place. But... that's not (as Ben suggests) a reason to ditch those rules. After all, literally days after the new rules were voted on, the big broadband players magically ended all their interconnection disputes. And that's because they knew that without fixing that, they'd face net neutrality complaints, and the FCC would almost certainly find those efforts to violate open internet principles. As for zero rating? Well, Ben insists in his podcast that the lack of any FCC authority over that meant that the rules don't matter. Apparently, he missed the fact that the Wheeler FCC actually told companies that zero rating was anti-competitive late last year, telling AT&T it needed to knock it off. Of course, it was easy for people who don't follow this stuff to miss, because one of Ajit Pai's first moves upon taking over from Wheeler was to tell AT&T not to worry about that complaint. This also highlights another error that Ben made in his writing and podcast. In the podcast, he keeps insisting that the difference between Title II and Title I is ex ante v. ex post rulemaking. Specifically, he argued that using Title II is silly because it only allows preset rules, and doesn't allow for "ex post" rulemaking to go after new bad behavior (citing interconnect and zero rating as examples). But, as we just pointed out in the previous paragraph, under Title II, the FCC could still make some ex post rulings on bad behavior that went against net neutrality (which is also why the interconnection fights disappeared -- because companies knew the FCC would find it problematic). What Ben misses is that under Title I, there's basically no "ex-post" process at all. The Pai FCC is washing its hands of any authority or any concern for neutrality at all (removing even the Feltonian "threat" of rules), and handing it off to the FTC which may not have any authority at all, and if it does, fairly limited authority that can't go after much of the promised bad behavior. On top of that, there's much more uncertainty without the rules -- and uncertainty itself can be a pretty large regulatory barrier. The rules set out principles and key issues that the FCC believe in about the internet. And they allowed the FCC to step in "ex post" to correct behavior that violated those principles. But under the new lack of rules, there are no such principles. And while the FTC may step in, ex post, to go after some really egregious behavior, it's not clear what it will focus on (if anything) or why. That leads to much greater uncertainty than the set rules of the 2015 Open Internet Order. During the podcast, Ben also suggests that the FCC's "success" in getting Comcast to stop throttling BitTorrent (pre-Title II) shows that we don't need Title II, and that the FCC's ex-post orders under Title I were sufficient. Except, once again, that ignores the actual history here. Yes, Comcast stopped throttling BitTorrent. But it took the FCC to court and won. So, what "worked" back in 2008 would not work the next time. It's odd to claim that the FCC succeeded against Comcast when it lost the lawsuit. Comcast didn't go back to throttling BitTorrent because other net neutrality rules were still pending (and because the company had agreed to some temporary net neutrality conditions for mergers. But those will go away). I'll just end with one final oddity from Ben's position. During the podcast, he argues (as we have argued for a long time) that getting more competition should be the focus -- and to get there he's specifically a supporter of local loop unbundling. That's the process by which the service layer is separated from the infrastructure layer and you can have multiple service providers offering service on the same fiber. I'm all for that as well. It's what we had in the dialup days when there was a ton of competition. But... amazingly, what Ben seems unaware of, is that the law that enables local loop unbundling is Title II. It's right there in Section 251(3). Of course, it's important to note that the Wheeler order (unfortunately) deliberately promised not to make use of this part of the law (via "forbearance"). But moving away from Title II is, by definition, moving away from local loop unbundling. So to say you're against Title II, but for local loop unbundling is just... strange. The larger point here, though is that while there certainly were a number of reasons to be hesitant about supporting Title II or even explicit rules from the FCC a decade ago, enough things have happened that if you support net neutrality, supporting Title II is the only current way to get it. Ajit Pai's plan gets rid of net neutrality. The courts have made it clear. The (non) competitive market has made it clear. The statements of the large broadband providers have made it clear. The concerns of the small broadband providers have made it clear. If Ben does support net neutrality, as he claims, then he should not support Pai's plan. It does not and will not lead to the results he claims he wants. It is deliberately designed to do the opposite. So, yes. For a long time -- like Ben does now -- I worried about an FCC presenting rules. But the courts made it clear that this was the only way to actually keep neutrality -- short of an enlightened Congress. And the deteriorating market, combined with continued efforts and statements from the big broadband companies, made it clear that it was necessary. You can argue that the whole concept of net neutrality is bad -- but, if you support the concept of net neutrality, and actually understand the history, then it's difficult to see how you can support Pai's plan. I hope that Ben will reconsider his position -- especially since Pai himself has been retweeting Ben's posts and tweets on this subject. Permalink | Comments | Email This Story

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CloudApp is the all-inclusive platform for capturing, annotating, and sharing anything from screenshots and GIFs to screen video recordings. Communication with your full team is a snap with CloudApp, allowing you to share via link or integrate with Slack, HipChat, JIRA, Zendesk, Github, and hundreds of others to complete unify your workflow. You control who accesses the content you share and for how long with advanced share settings. The license includes 2 seats (one for the purchaser and one for a team member) and is on sale for $29.99. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Earlier this year, government entities in Beaverton, Oregon got fed up with a resident's refusal to stop pestering them about problems with their traffic light timing. Mats Jarlstrom, a red light camera ticket recipient and consequential thorn in the side of local pols, tried repeatedly to get state traffic engineers to take a look at his research on yellow light timing. They refused. And they refused in a way only powerful bureaucracies can. The Oregon Board of Examiners for Engineering and Land Surveying told Jarlstrom to shut up by issuing him a $500 fine for practicing engineering without a license. It was, of course, bullshit. Jarlstrom couldn't alter traffic light timing and certainly wasn't sending in bids for government work while presenting himself as an engineer. He just wanted to talk about his research. But the state board wasn't interested in his work or his refusal to stop talking. Despite holding a bachelor's degree in electrical engineering, Jarlstrom was told he wasn't enough of an engineer to talk about subjects he'd thoroughly researched. The Institute for Justice picked up Jarlstrom's case, securing an injunction against the state board earlier this year. We're another step closer to a full resolution in this case, as the state board has finally conceded it trampled all over Jarlstom's rights in its efforts to get him to stop talking. A state panel violated a Beaverton man's free speech rights by claiming he had unlawfully used the title "engineer'' and by fining him when he repeatedly challenged Oregon's traffic-signal timing before local media and policymakers, Oregon's attorney general has ruled. Oregon's Board of Examiners for Engineering and Land Surveying unconstitutionally applied state law governing engineering practice to Mats Järlström when he exercised his free speech about traffic lights and described himself as an engineer since he was doing so "in a noncommercial'' setting and not soliciting professional business, the state Department of Justice has conceded. "We have admitted to violating Mr. Järlström's rights,'' said Christina L. Beatty-Walters, senior assistant attorney general, in federal court Monday. Jarlstrom will get a $500 refund from the state, but perhaps more importantly, an admission of wrongdoing -- a rarity in litigation settlements. Jarlstrom and the Institute for Justice would like to see further changes made in the state's government. They want the court [PDF] to review the laws used to silence Jarlstrom and find them unconstitutional. The state, unsurprisingly, does not. Its settlement offer [PDF] wants awards limited to its admission of wrongdoing and a refund of the fine paid by Jarlstrom. The state would still like to be able to declare who is or isn't an engineer. But it's already been used as a weapon against a critic once. There's nothing in the board's settlement offer that would prevent it from doing it again. Permalink | Comments | Email This Story

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For a decade now one major ISP talking point against net neutrality is that it hurts the sick and disabled. Verizon, for example, has tried to pretend that net neutrality rules hurt the hearing impaired because it prevents them from getting access to prioritized medical services like video relay or other technologies. Comcast has frequently trotted out this argument as well, as in an FCC filing (pdf) earlier this year claiming that net neutrality rules simply must die because they're preventing the sick and disabled from getting access to advanced telemedicine technologies: "...the Commission also should bear in mind that a more flexible approach to prioritization may be warranted and may be beneficial to the public. For example, a telepresence service tailored for the hearing impaired requires high-definition video that is of sufficiently reliable quality to permit users “to perceive subtle hand and finger motions” in real time. And paid prioritization may have other compelling applications in telemedicine. Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it." You may be shocked to learn that this isn't, nor has it ever been, true. Both the discarded 2010 rules, and the 2015 rules, carve out mammoth, tractor-trailer-sized exemptions for medical services. In the 2015 rules, the FCC was careful to distinguish between "Broadband Internet Access Services (BIAS)" (generalized internet traffic like browsing and app data) and "Non-BIAS data services," which are often given prioritized, isolated capacity to ensure lower latency, better speed, and greater reliability. VoIP services, pace makers, energy meters and all telemedicine applications fall under this category and are exempt from the rules. You'll be equally shocked to learn that this has nothing to do with helping the sick -- and everything to do with making more money. ISPs want to eliminate the paid prioritization restrictions so they can sell content and service companies an unfair advantage in the market. Deals that give industry giants prioritization, optimal routing and the lowest latency, while startups, non-profits and educational institutions sit twiddling their thumbs at a notable disadvantage. This goal is precisely why Comcast is already walking back its promises on this front as repeal nears. You'd think, as FCC Boss so immensely familiar with the rules he's so eager to dismantle, that Ajit Pai would realize that the claim that net neutrality hurts the sick is a dated and grotesque bit of scare mongering. Yet last week, as he tried to defend himself from massive criticism that he was selling out consumers and the health of the internet, Pai gave yet another speech (pdf) during which he doubled down on the idea: "By ending the outright ban on paid prioritization, we hope to make it easier for consumers to benefit from services that need prioritization -- such as latency-sensitive telemedicine. By replacing an outright ban with a robust transparency requirement and FTC-led consumer protection, we will enable these services to come into being and help seniors." Again: there is no "outright ban," and the rules clearly already carve out giant holes for this traffic. Not to be outdone, this claim that killing net neutrality magically helps the sick was also included in the FCC's facts-optional fact sheet (pdf) it circulated last week to "set the record straight": "FACT: Restoring Internet freedom will lead to better, faster, and cheaper broadband for consumers and give startups that need priority access (such as telehealth applications) the chance to offer new services to consumers." But again, nothing in the rules stopped this from happening already, meaning that Pai once again feels the need to lie about something that can be fact-checked by anybody willing to spend a little time actually reading the 2015 rules (pdf). Of course when you're pushing what's potentially the most despised bit of tech policy kerfuffle since SOPA with little to no support from the actual public, manufactured bogeymen are apparently all that's left to fall back on. Permalink | Comments | Email This Story

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A rather strange ruling has been handed down by the Sixth Circuit Appeals Court. It's a ruling that could have an adverse effect on anonymous speech, although it does mitigate the potential damage by booting it back to the lower court for a final determination. But that still might not stop an aggrieved multi-level management company from learning the identity of one of its critics. Signature Management Team is the plaintiff/pyramid scheme. John Doe posted a link to a copy of one of SMT's books on his "Amthrax" blog. SMT filed a DMCA takedown notice with the blog's hosting service, Automattic. After being served with the notice, Doe removed the link to the copyrighted instruction book. This quick concession didn't stop SMT from suing Doe. It alleged one count of copyright infringement. Doe asserted a fair use defense and alleged copyright misuse, i.e., the use of copyright to silence a critic. He also asserted his right to speak anonymously and argued against being unmasked. SMT moved to compel disclosure of Doe's identity. The district court agreed with Doe, feeling Doe had a chance to prevail with his fair use argument. It did compel Doe to reveal his identity to the court and issued a protective order preventing SMT from learning his identity. Unfortunately, Doe did not prevail in this legal battle. The court denied summary judgment to Doe, siding with SMT on its copyright infringement claim. The only thing the court ordered, however, was destruction of the infringing PDF by Doe. Doe complied. SMT, however, persisted in its arguments for unmasking. Again, the court refused to turn over Doe's information to the plaintiff, pointing out Doe had complied with the DMCA notice and court order immediately. SMT appealed. The Appeals Court weighs a lot of factors, but notes this is a question normally addressed before discovery, not after a judgment has already been rendered (mostly) in favor of the party seeking to unmask an anonymous defendant. From the ruling [PDF]: With the explosion of anonymous Internet speech, courts have begun to develop balancing tests weighing the First Amendment right to anonymous speech against a plaintiff’s interest in unmasking an anonymous defendant. See id. at 1175–76 (compiling balancing tests). All of these cases, however, have dealt with anonymity rights during the discovery process. No case has considered the issue presented here—whether and under what circumstances a court can properly protect a party’s anonymity after judgment. This is an important distinction. The prejudgment cases often deal with a plaintiff’s need to unmask a defendant in order to effect service of process. [...] In contrast, the entry of judgment against a Doe defendant largely eliminates these concerns because the plaintiff will have established liability. On the other hand, where the anonymous defendant is determined to have fully complied with the relief granted, there is no practical need to unmask the defendant. Setting itself up with opposed theories, the court spends the next several questions thinking out loud. Public litigation carries a presumption of open judicial records, which includes identifying information pertaining to both sides of lawsuit. In this case, however, not only is one side still anonymous, but even the plaintiff is unaware of the true identity of the person it's suing. This stands in contrast to sealed cases where both parties are known to each other, but withheld from the general public. The fact that Doe lost a copyright infringement case weighs heavily against his continued anonymity. [W]here a Doe defendant’s speech is found to be beyond the protection of the First Amendment, countering the presumption will require a showing that the Doe defendant participates in a significant amount of other, non-infringing anonymous speech that would be chilled if his identity were revealed. This chilling effect could be argued using nothing more than Doe's anti-MLM blog. Certainly, there's plenty of evidence (both judicial and anecdotal) companies -- especially questionable ones -- like to silence critics. One good way of silencing persistent critics is eliminating their anonymity, making them more likely to be sued or otherwise harassed by the entities they criticize. But the Appeals Court gets hung up on the copyright infringement, even though there's little on the record here showing Doe was a repeat offender. He could have been more careful in his use of the copyrighted MLM manual, but his quick compliance with SMT's demands and district court's order shows he had no intention of thumbing his nose at copyright law. Doe's compliance seems to weigh against an order for unmasking on remand, even though Doe is definitely the loser in this legal battle. The Appeals Court tries to weave both of these disparate views into a single, mostly-cohesive text, but fails. We do not agree either that the district court lacks discretion to allow Doe to remain anonymous or that Doe’s legitimate First Amendment right to speak anonymously is collateral to these proceedings. Although Doe’s infringing speech is not entitled to First Amendment protection, that speech occurred in the context of anonymous blogging activities that are entitled to such protection. An order unmasking Doe would therefore unmask him in connection with both protected and unprotected speech and might hinder his ability to engage in anonymous speech in the future. Further, we do not agree that allowing Doe to remain anonymous would necessarily diminish the impact of the ordered injunctive relief. The dissent’s suggestion that a failure to unmask Doe would obligate the district court and Team’s attorneys to monitor Doe’s activity is inapposite because the district court declined to enter any ongoing injunctive relief. Since Doe has already complied with all aspects of the court’s order, there will be no need for monitoring regardless whether the district court ultimately decides to unmask Doe. Finally, to the extent that the concerns identified by the dissent cut in favor of unmasking Doe, the district court should consider those factors on remand. The Appeals Court sounds like it might be inclined to let Doe keep his anonymity, but pulls back from that bright line and boots it back to the lower court. The good news, as far as Doe is concerned, is that the lower court already ruled in favor of his arguments against unmasking. Nothing in this ruling suggests the lower court should feel compelled to overturn its earlier decision. SMT's insistence the infringer/critic be unmasked smacks of pure vindictiveness. Doe has complied with all requests and orders, leaving very little for SMT to truly complain about, especially as the lower court did not issue an order requiring monitoring of Doe's blogging for possible further violations. If SMT is given a win, it will do more than chill Doe's speech. It will chill the speech of anyone criticizing SMT and its business practices. It certainly wouldn't be a good precedent to set: allowing more powerful entities to unmask weaker ones if they can secure some form of judgment in a court. Hopefully, the lower court will come to the same conclusion the second time around. Permalink | Comments | Email This Story

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A brief review of all of the articles I've written in these here pages about sweet, delicious alcohol mostly have to do with trademark spats between drink-makers, including many in which I've made the point that it's high time for the USPTO to get a little more subtle when it comes to its alcohol marketplace designations. Beer isn't wine, and wine isn't liquor, and the public looking to buy one of those is quite unlikely to confuse one product for another. The focus of many of those posts was how this lack of distinction between the alcohol markets has resulted in too many aggressive trademark lawsuits and threat letters that hardly seemed necessary. But there is a flip side to all of this that serves as another perfectly good reason for the USPTO to make a change. Recently, one liquor distiller sued another in what seems like a fairly plausible trademark infringement case. Few Spirits, the maker of Breakfast Gin, has taken the Michigan-based Gray Skies Distillery to court over the planned December launch of its new whiskey, Breakfast Rye. As reported by MLive.com, Few’s counsel sent a notice in October telling Gray Skies it had “prior rights and registration” to Breakfast Gin, and told it to cease any use of Breakfast Rye. In the lawsuit, it alleged trademark infringement, unfair competition, and violation of Michigan’s Consumer Protection Act. In response, Gray Skies submitted a letter of protest to Few’s pending trademark application. The Breakfast Gin producer is now seeking an injunction to prevent Gray Skies from selling Breakfast Rye, including damages if it goes up for sale in stores or in bars. Now, we could spend time talking about just how valid a trademark the word "breakfast" is in the liquor industry -- whether it's generic, whether it's overtly common, and whether or not its actually somewhat descriptive of the flavor or ingredients within each liquor product itself. Frankly, I don't want to do that in this post. The trademark seems valid to me and it certainly isn't striking any well-tuned outrage chords in my psyche. But one of the defenses proffered by Gray Skies' attorney, Thomas Williams, in its opposition to Few's trademark application shows exactly the problem with a lack of market distinctions in the alcohol industry, except in reverse. "The use of 'breakfast' to describe alcoholic beverage products that have characteristics, aromas or flavors reminiscent of breakfast foods, is replete in the marketplace," Williams wrote. "For example, Founders Brewing Company markets and sells Founders Breakfast Stout and Founders Canadian Breakfast Stout. Dogfish Head markets and sells Beer for Breakfast Stout." Except that none of that should actually matter. Few shouldn't be denied a trademark on the word "breakfast" due to the plethora of beer brews using the word in their names. Different alcohol medium, different customer base, different market. That the USPTO doesn't recognize any of that is the problem, of course, but it's disappointing to see the lawyers for a member of the industry ignore all of that over a simple trademark opposition. It's worth noting as well that the same lawyer, Williams, does not trot out this defense in response to the lawsuit Few filed. There instead he relies on the overall trade dress and, remarkably, claims that gin and whiskey customers are discerning enough to discriminate between types of spirits. One of the factors in trademark law focuses on the likelihood of confusion over a product by consumers. Buyers of craft spirits are very discriminating, Williams said. "I think we would vigorously dispute that anybody's going to be confused when you put the two products side by side in the market, he said. Pick a lane, counselor. By ignoring obvious market distinctions in the alcohol industries, the USPTO has allowed lawyers like Williams to try to play both sides of the argument. On the one hand, oppose a trademark because of similar marks in the beer industry. On the other hand, claim that similar marks within the spirits industry are just fine because gin and whiskey are basically in different markets. A little clarity through common sense any time now, USPTO. Permalink | Comments | Email This Story

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As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee. The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things. Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequently disagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online. That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome. That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman. In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time. There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702. So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business. Permalink | Comments | Email This Story

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Nothing But the Truth Films (NBT) has a credibility problem. Oh, the irony, I would normally say, except for the fact NBT deals mostly with this sort of "truth." We present the black and white facts about the geopolitical climate which include Islam, Illuminati, Freemasonry, Cults and more. See how your freedoms are slowly eroding and spread the message with the help of our channel. So… that's the kind of "truth" we're dealing with, often pronounced "conspiracy theory." J.K. Sheindlin is the person behind NBT Films and the author of a book that has supposedly blown minds of Islam adherents everywhere, resulting in them renouncing their faith on camera. One popular video on NBT's YouTube channel shows a supposed Islamic man angrily and bitterly decrying the religion after having his eyes opened by Sheindlin's book. But the video isn't what it seems: it's actually footage taken from somewhere else, dealing with an entirely different issue, but with NBT's fabricated subtitles giving the impression Sheindlin's book has unconverted another follower of Islam. It made the internet rounds enough that Snopes picked it up and debunked it. While the video purports to tell the “black and white facts” about someone renouncing his faith because of Sheindlin’s book, the clip in reality does not capture an Arab’s reaction to a controversial book, nor does it capture that person renouncing his faith on live television. Sheindlin added fabricated captions to the video (while pledging to tell “nothing but the truth”) in order to generate buzz for his book The People vs Muhammad. This footage is dated 2 July 2013, when Egyptian president Mohamed Morsi rejected the military’s ultimatum to leave office. Opposition activist Ihab al-Khouli, the “Arab guy” in the video displayed above, was reacting to Morsi’s speech… Having been caught out, Sheindlin did what any self-respecting truth-seeker huckster would do: he decided to get Google involved. The invaluable Dean Sterling first spotted the bogus DMCA notice: Last month, the conspiracy channel filed a DMCA copyright complaint requesting that Google delist Evon’s article from its search results. That’s according to the Lumen Database, which archives online takedown requests. And here's what the bogus takedown notice says: The copyrighted work is a video that our company produced, and has been embedded on the following website without our permission. You can see the video embedded on the page, under the section ‘Origin’. We did not give any authorisation for the website ‘Snopes’ to use our video for their news. Therefore, the company Snopes has infringed our copyright. First off, no one needs permission to embed a YouTube video. If someone wants to prevent others from embedding their videos, they can always turn that option off. Second, Sheindlin's complaint about someone else using "his" video is especially rich considering he's using footage created by someone else without acknowledgment and, on top of that, adding his own subtitles to misconstrue the content of the footage he "borrowed." It appears Sheindlin is now warning people about his bogus subtitle work (he has more videos purporting to be people denouncing their Islamic faith after reading his book). This annotation has been added to the beginning of the bogus faith rejection video. If you can't see it, the text box says: "SUBTITLES CHANGED FOR PROMOTIONAL PURPOSES." At long last, Nothing But the Truth Films finally engages in a close approximation of honesty. Refreshing. And once again, someone looks at a tool created to stop copyright infringement and sees a way to silence a critic. Finally, for comparison purposes, here's the legitimate, unaltered video with the correct translation: And here's NBT's "promotional" garbage bullshit version: Permalink | Comments | Email This Story

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You might recall that a few years ago, Amazon began banning competing streaming hardware like Apple TV and Google's Chromecast from the Amazon store because these products competed with Amazon's own streaming hardware. At the time, you might also recall that Amazon offered up the historically stupid claim that this done simply to avoid "customer confusion": "Over the last three years, Prime Video has become an important part of Prime," Amazon said in the e-mail. "It’s important that the streaming media players we sell interact well with Prime Video in order to avoid customer confusion." That decision has only resulted in an ever-escalating game of tit for tat that has started to bubble over in recent months. Around three months ago, YouTube decided to block YouTube from working on Amazon's Echo Show hardware, pushing the bogus claim it was due to a "broken user experience." In response, Amazon expanded its blacklist of Google products by refusing to sell Google Nest hardware as well. This was already bad enough, but the escalating game of "who can be the most obnoxious to paying customers" was taken to yet another level this week. For a while, Amazon managed to create a workaround that directed Echo Show users to the web version of YouTube, but Google/YouTube managed to find a way to block that too as of today. YouTube is also now informing owners of Amazon's Fire TV products that YouTube will no longer work on that hardware either, starting January 1. Needless to say, this is creating a broken experience on both hardware platforms, and customers are clearly annoyed: So Google's feud with Amazon just reached my living room. Got this screen when I launched YouTube on my Amazon Fire TV. pic.twitter.com/vtmcuBTtE9 — Cornell Ngare (@cngare_) December 5, 2017 THIS IS INSANITY pic.twitter.com/dYbi5w7pdD — dan seifert of the house verge, first of his name (@dcseifert) November 21, 2017 In a statement, Google all but admits that the two companies are engaged in a giant game of jackass patty cake: "​We’ve been trying to reach agreement with Amazon to give consumers access to each other's products and services. But Amazon doesn't carry Google products like Chromecast and Google Home, doesn't make Prime Video available for Google Cast users, and last month stopped selling some of Nest's latest products. Given this lack of reciprocity, we are no longer supporting YouTube on Echo Show and FireTV. We hope we can reach an agreement to resolve these issues soon." There are numerous problems here. One being that none of this is really necessary, and that instead of settling their grievances like professionals, the two companies thought it would be a good idea instead to engage in an epic attempt at pettiness which harms openness, innovation, consumer trust, and the consumer experience. But this is also another example of how in the modern era, you don't really own the products you think you're buying, with companies more than happy to eliminate integral functionality at a moment's notice -- without much concern for the end user. The dispute is so idiotic, it even provided US Telecom, an AT&T-funded ISP lobbying organization, the opportunity to take a few pot shots at Google in a statement it circulated to the media yesterday: "Broadband ISPs are committed to providing an open internet for their customers, including protections like no content blocking or throttling. Seems like some of the biggest internet companies can’t say the same. Ironic, isn’t it?" When you're being trash-talked by what's currently the most-hated industry in America, you know you have a problem. Granted, US Telecom is engaged in some major conflations here. One, Google hasn't really clearly supported net neutrality since around 2010 or so, making this obnoxious, but not necessarily hypocrisy. Two, Amazon customers at least have the option to use other hardware, something you can't say about broadband subscribers, who usually only have access to one ISP at the FCC's 25 Mbps broadband definition threshold. This isn't a net neutrality violation, it's just stupid. There really is no winner here. Google and Amazon could simply settle their differences like countless businesses do every hour of every day. Instead, they've decided that the best course of action was a downward spiral that punishes millions of consumers simply because the two companies' executives are unwilling behave like functional adults. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
I cannot imagine what it must be like as an appellate court judge to have to write these words (h/t Brad Heath): Construing the facts in the light most favorable to [Trey] Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment. I don't know which is sadder: the fact that this case -- the absolute nadir (so far!) of stupid teen sexting prosecutions -- even exists or that the lower court somehow found in favor of the officer (now deceased) being sued. A cop engaged in the act of producing child pornography by attempting to force a teen to arouse himself while surrounded by police officers supposedly for the purpose of matching the teen's erect penis to photos the cop already had in his possession as part of a sexting "investigation." The officer was told by prosecutors to do this, which shows the twisted logic of this abhorrent request didn't spring entirely from the mind of Detective David Abbott. He, however, did not turn down the prosecution's request. The prosecutor who ordered this "production" of evidence was Claiborne Richardson. Unfortunately, he has the sort of immunity cops like Abbott can only wish they had: absolute immunity. Richardson walks away from this with little more than reputational damage. There's a judge out there somewhere with their name scrawled across a granted warrant request ordering a teenager to produce an erection for cops. Actually, there's two of them, though both go unnamed in the decision [PDF]. (Oral arguments are embedded at the bottom of the post.) From the dissent's[!] footnote: On this record, search warrants were issued on June 3, 2014, and again on July 1, 2014, by two different magistrates. See Supp. J.A. 72, 76. The June warrant was the only one executed. In executing the June warrant, Abbott was unable to obtain some of the photos being sought. Because the prosecutor and the detective agreed that additional photos were necessary, Abbott was directed to seek the July warrant. That warrant was never executed and was voided. And there's the judge who heard the prosecution's request to get this warrant and said that was fine. That judge's name is Jan Roltsch-Anoll. All of these justice system components worked together to put a teen in a room full of cops with the instructions to masturbate so a detective could take photos. Abbott's representation was willing to take a chance on seeing the lower court's awful immunity decision upheld, despite there being nothing remotely sane -- much less Fourth Amendment-compliant -- about law enforcement's actions. Detective Abbott's survivors continue his fight for him as Abbott killed himself in late 2015 as police tried to arrest him for allegedly molesting two teens he met coaching youth hockey. (Make of that what you will.) The Fourth Circuit Court of Appeals finds nothing at all to like about Abbott's pleas for qualified immunity. Abbott’s search directed at forcing Sims to achieve an erection intruded “upon an area in which our society recognizes a significantly heightened privacy interest.” See Winston v. Lee, 470 U.S. 753, 767 (1985). Requiring Sims to masturbate in the presence of others, like searches involving physical penetration of genitalia, constituted “the ultimate invasion of personal dignity.” Amaechi, 237 F.3d at 363-64; see also King, 825 F.3d at 215. Moreover, we observe that this sexually intrusive search was rendered more egregious by being conducted in a manner that would instill fear in Sims. See Edwards, 666 F.3d at 884-85. Here, Sims alleged that he was “surrounded” by three armed officers as he questioned whether he was required to submit to Abbott’s orders. Upon Abbott’s insistence, Sims ultimately attempted to comply. Sims further alleged that the search caused him to suffer emotional harm. Winston, 470 U.S. at 761-63 (explaining that intrusions without risk of physical harm nonetheless damage the individual’s sense of personal privacy and security). Accordingly, both the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted weigh strongly against any finding that the search was reasonable. Nothing. We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others. Abbott's estate argued the search violated no clear precedent. In other words, no comparative case had reached this level in the justice system and found ordering a teen to masturbate in front of police officers (while one of them photographed him) was a clearly established violation of the Fourth Amendment. The court agrees, but notes there's a very good goddamn reason why there's no precedent exactly on point with this abysmal abuse of power. We further observe that the Administrator is not entitled to invoke qualified immunity simply because no other court decisions directly have addressed circumstances like those presented here. See Clem, 284 F.3d at 553. For good reason, most outrageous cases of constitutional violations rarely are litigated. See K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (explaining that never before had there been a case accusing welfare officials of selling foster children into slavery, but those officials nevertheless would not be entitled to immunity). Abbott’s conduct affronted the basic protections of the Fourth Amendment, which at its core protects personal privacy and dignity against unjustified intrusion by governmental actors. The dissent actually believes Abbott should still be granted immunity because a) he obtained warrants and b) he consulted with Commonwealth prosecutors (namely, Claiborne Richardson, whose reputation should be just as worthless as Abbott's) before obtaining them. If we follow this line of thinking, we are being asked to absolve all officers of egregious misconduct so long as certain procedural steps are followed before they go off the deep end. In fact, it asks to reward officers (and other government employees) who can find support from equally-questionable colleagues for their actions. According to the dissent, the whole rotten barrel should be excused from punishment because the rot was caused by several bad apples, rather than a single, rogue actor. Even worse, if you're going to choose a qualified immunity hill to die on, why would you choose the one containing cops and prosecutors taking photographs of a masturbating teen? What possible public service could a decision in the detective's favor possibly provide? All it would do is create one more line an Appeals Court has yet to draw, allowing cops to force minors to strip and masturbate as long as they have a warrant. But that's what Judge Robert B. King apparently wants: no precedential declaration that forcing minors to masturbate in the presence of officers is a clear violation of established rights. But that's the way the system works. It so insulates police officers and prosecutors from accountability, no one at the bottom level of this pathetic prosecutorial food chain took any action to stop this from happening until after two warrants were issued and one was executed. True fact: people in these positions can stop at any time. They don't need to wait for clearly-established precedent from high-level federal courts. No one forces prosecutors to suggest taking photos of a teen's erect penis and insane requests from prosecutors can always be turned down by law enforcement officers. But no one did anything to head off the clear rights violation. And once it was done, Detective Abbott tried to Nuremberg his way out of it and the Commonwealth's attorney -- Claiborne Richardson -- ducked out of the public eye as soon as the shit started hitting the fan. The legacy of everyone involved, from the detective executing the warrant to the juvenile court judge who granted time for it to be executed should be tarnished forever. Permalink | Comments | Email This Story

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