We've seen various ISPs push back (mostly successfully) on attempts by copyright trolls to lump together hundreds, or even thousands, of separate IP addresses into a single lawsuit for the sake of being able to subpoena identities (and then send threatening "settlement" demand letters). But, still, it's a bit of a surprise to see Comcast get into the game as well, filing a motion with a district court arguing that it shouldn't have to provide such info in response to subpoenas from various copyright trolls. Yes, Comcast has the same basic argument as other ISPs... but Comcast is also the owner of NBC Universal, who is very much on the other side of this issue, and has been one of the strongest copyright maximalists out there. So it's a bit surprising to see them using an argument that, in theory, could come back to make NBC Universal's life more difficult whenever it goes after people for allegedly infringing on its works online. In fact, Comcast argues pretty strongly against copyright trolling in the filing:

Plaintiffs should not be allowed to profit from unfair litigation tactics whereby they use the offices of the Court as an inexpensive means to gain Doe defendants’ personal information and coerce “settlements” from them. It is evident in these cases – and the multitude of cases filed by plaintiffs and other pornographers represented by their counsel – that plaintiffs have no interest in actually litigating their claims against the Doe defendants, but simply seek to use the Court and its subpoena powers to obtain sufficient information to shake down the Doe defendants. The Federal Rules require the Court to deny discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). This case requires such relief.

Now, of course, NBC Universal hasn't gone all the way to the level of pure trolling and forcing settlements out of people, but I've yet to see a single situation where the lawyers at NBC Universal were willing to support anything that might make it more difficult for them to go after people for infringement. Perhaps now that they're under the Comcast umbrella NBC Universal will have to tone down its aggressiveness on these issues?

Susan Crawford believes telecommunications in America are going through the biggest crisis ever, and this is just as bad as the banking crisis was. Monday, at the Freedom 2 Connect conference, the Internet law scholar and former Special Assistant for Science, Technology and Innovation Policy at the White House, laid out what's wrong with broadband in America, hinting and what needs to be done to fix it. It's not going to be easy.

"The stakes are extraordinarily high, this has been an incremental crisis for a long time but now it's an actual crisis," said Crawford, whose book analyzing these issues, Captive Audience, will be published in November. The central issue is the so-called digital divide and what Crawford refers to as the "looming cable monopoly." Due to deregulation, which was predicated on the premise that the free market and competition would protect consumers, cable companies have found themselves with an inordinate amount of power to control the Internet and broadband access while, at the same time, traditional phone companies like AT&T are struggling to keep up and veering towards wireless services.

To support her thesis, Crawford presented some stunning numbers. In the last two years, Comcast market share has grown from 16.3 million subscribers to 18.5, a 14 percent growth. Time Warner Cable has grown 10 percent, from 9.2 to 10.7 million customers. Meanwhile, DSL subscribers have plummeted: AT&T and Verizon market share is down 22 and 21 percent respectively.

So, while it's good to be Comcast, it's not good to be an American citizen. Without competition, there's no drive to improve the service. The average speed of an Internet connection in the United States is around 5Mbit/s. An astoundingly low number if you look at other western countries. South Korea, for example, has an average of 50Mbit/s. And faster connections are starting to be implemented around the world. One gigabit connections are available in countries like Japan, Portugal or Sweden and at much better prices than in the U.S. – in Hong Kong, connecting at one gigabit per second costs $26 a month while in Chattanooga, TN, it costs $350.

What does this mean to the average citizen? It means the United States are giving up their leadership. Crawrford said this means “the next Google won't come from America.” And, even within U.S. borders, there's a fundamental problem: you either pay premium for a mediocre service or you are left behind.

“We end up with two Internets, two societies in America,” Crawford said to me in an interview.

One America does some tweeting and Facebook on their inferior, slower wireless devices. The other America not only gets to enjoy video online, but they can also apply for jobs, do video-conferencing, get an education online and, ultimately, live in the 21st century. Crawford argues that this digital divide ends up creating inequality between the haves and have-nots in America.

The only solution, Crawford argues, is for the government to intervene and regulate. Internet access, particularly high-speed access, should be treated “as a utility, just as electricity, gas and water.” Doing so would make the Internet a natural monopoly in which the government would provide the pipe and guarantee equal opportunity of access to everybody.

It might not happen immediately, but Crawford hopes that, with her influence and that of other thinkers like her, this will come to the forefront of the public discussion. She believes that, eventually, in every district, there will be elected officials who understand and care about these issues. That will be when we'll be able to look for a solution. "We make this a voting issue, that's how we fight back."

Tim Lee has written a long, detailed and really thought-provoking article for National Affairs Magazine, all about what it takes to keep the internet competitive. Lee, who has a reputation for being generally skeptical of regulation without real evidence that it's needed, actually comes down on the side of suggesting that certain key regulations probably make sense to keep the internet competitive, with a specific focus on limiting Comcast's power to directly impact the market, and to effectively disrupt the internet's decentralized nature. It's a persuasive piece that doesn't shy away from the fact that telecom regulations are incredibly complex, and anyone who argues that any change to the existing market is putting regulations where none existed before is delusional, since the whole space is already highly regulated -- it's just a question of how that regulation might shift around.

The key point in all of this is that the guiding star of anyone trying to keep the internet vibrant should be making the market truly competitive with no dominant power able to make significant shifts in the core underpinnings of what makes the internet work. Lee uses the Comcast/Level3 dispute from a few years ago to suggest that Comcast is potentially shifting the traditional contours of the internet's competitive market:

Comcast's large share of the broadband market, along with the fact that most of its customers have few if any comparable alternatives, gives Comcast significant leverage in negotiating with backbone ISPs. Comcast has traditionally been a customer of Level 3, one of the largest internet backbone providers. When a Comcast user exchanged data with a network that was not directly connected to Comcast's own network, Comcast paid Level 3 to carry that traffic.

But in November 2010, the two firms became locked in a bitter dispute. Level 3 had just won a contract to deliver content for Netflix, one of the internet's largest video services. Anticipating that Netflix would generate more traffic than the existing links between the Comcast and Level 3 networks could accommodate, Level 3 proposed installing additional links between the networks. Ordinarily, Comcast, as a Level 3 customer, would gladly accept what was essentially a free upgrade. Instead, Comcast refused to accept the new connections unless Level 3 agreed to pay Comcast for the additional traffic. And Level 3, after voicing strong objections, paid up.

There's a lot more to this -- and Lee highlights some of the more detailed nuances as well, so don't just go on this brief summary -- but he argues it's a sign of the power that Comcast has been building up. I highly recommend reading the full thing if you're thinking at all about the issue of regulations on broadband service providers, and the future of the internet.

As was somewhat expected, this week Comcast announced its plans to offer Xfinity video on demand via the Xbox 360... which will require customers to subscribe to both Xfinity TV and the broadband service, meaning that this isn't a solution for getting around your cable subscription (of course, because Comcast doesn't want you ditching your cable TV). But what's getting much more attention is the announcement that such streaming video won't count against Comcasts' broadband caps, raising some significant questions concerning whether or not Comcast is following the FCC's open internet rules -- the same rules that were put in place to stop Comcast from degrading certain services in favor of others. Comcast, for it part, insists that the rules don't apply to this VOD service, since it's coming over its private network, rather than the public internet, but it's certainly tiptoeing along a fairly fine line. I think the bigger issue is why the cap exists in the first place. But, in the long run, Comcast is definitely trying to back its way into being able set up "most favored nation" status with certain providers, which really does impinge on the internet's basic end-to-end principles.

We've seen some pathetic trademark lawsuits this year (SUE MOAR KALE, anyone?), but I'll nominate this long-running litigation money-sink (going over 3.5 years) as the saddest trademark case of 2011.

Fancaster registered its mark in 1989 for broadcasting services, and over the years it's been used in connection with a range of services, "including selling Fancaster branded radios, charging customers to watch closed circuit boxing matches, producing karaoke shows, transmitting sponsored news messages to wireless pagers and cell phones, and conducting live demonstrations of FANCASTER broadcast services" (cites omitted).

In 2006, it launched Fancaster.com to broadcast short sport-related video clips. It hoped to cover such must-see events "as La Tomatina in Spain, Ostrich racing in Arizona, the Westminster Kennel Club Dog Show and the annual Nathan's Hot Dog Eating Contest." Rather than advertise the website on the Internet (you know, where people who enjoy content online might already be), they were seeking out untapped Internet enthusiasts by "marketing the website at sporting events, bars, on local television channels in Sioux Falls, South Dakota and Sioux City, Iowa, on radio stations in Charleston, South Carolina, and via flyers and handbills."

Meanwhile, in 2008 Comcast rolled out a service called fancast.com "that allowed users to watch full-length premium mainstream media over the Internet." The service was a debacle, losing $80M in less that 2 years due to “the unexpectedly high cost of distributing video content on the internet.” (Even though Comcast acquired bandwidth at wholesale rather than retail costs... how much would it have cost non-carriers to launch competitive services?). In March 2011, Comcast shut down the Fancast service and rolled the domain name over to XfinityTV.

With the overlap between the Fancaster and Fancast names, one possibility is that Comcast blatantly ripped off the name of a small startup who wouldn't want to tangle with a giant, thereby creating "reverse confusion" where everyone thinks first-mover Fancaster infringes second-comer Comcast. But another story equally fits these facts: Fancaster is doing a little trademark trolling, seeking to increase Comcast's $80M of losses by grabbing some gravy for itself. (Some gravy indeed: Fancaster's damages expert thought it would take $73M of corrective advertising to fix Comcast's damage to a brand that has no market awareness outside of Sioux City.)

It's a sad commentary on our milieu when we can't tell which litigant is bullying the other. Maybe *both* parties are equally imbibing the bullying elixir. Fancaster initially unleashed the litigation hounds, but Comcast responded with a hailstorm of countermoves, including an ACPA counterclaim for a slew of "fancast" domain names Fancaster registered after learning about Comcast's upcoming launch. A lot of lawyers appear to have satisfied their billable hour goals using this case. Yay for free-spending, deep-pocketed clients!

Trademark Infringement

The court resoundingly thumped Fancaster's core argument about consumer confusion, miraculously finding a way to twist all of the factors to Comcast's favor. The judge may have cut some analytical corners, but that says the judge simply didn't accept Fancaster's narrative.

The court specifically rejected the possibility of initial interest confusion, citing 3rd Circuit precedent that basically limited IIC to competitors, because the parties didn't directly compete. The court also dismissed Fancaster's efforts to show overlaps in search engine results, saying "the confusion one encounters on an Internet search engine is a twenty-first century version of that experienced when searching the phone book." (I am going to be doing some work this quarter to show that the initial interest confusion doctrine almost never succeeds in court any more, and therefore it imposes costs on both litigants for no gain. This case is just one example of that.)

The court also scoffed at Fancaster's request for $73M for corrective advertising:

There is not a shred of evidence of any damage to the Fancaster mark caused by Comcast. The only loss to Fancaster that Mr. Krueger could testify to was that resulting from pursuing the instant litigation against Comcast.

Evidentiary Issues

Comcast had survey expert Hal Poret do two surveys. The court tossed the first one because it didn't adequately replicate market conditions by not presenting consumers with a navigable website:

use of a printout and static screenshots, instead of live websites, provide ample grounds on which to exclude the March 2009 survey. For one, it is difficult to fathom how presenting a respondent with a paper printout of the FANCAST homepage in anyway replicates how an Internet user would encounter and perceive the FANCAST website in the marketplace. Websites, particularly those that offer video content, are meant to be viewed on a computer and allow consumers to browse and interact with them via hyperlinks. The FANCAST printout offered none of these aspects. Similarly, although viewed on a computer, the static screenshots of the fancaster and control website homepages did not allow respondents to interact with them as they ordinarily would in the marketplace.

I haven't researched this issue, but this ruling may tell us something important about the requirements for consumer surveys when websites are involved.

Conclusion

This ruling eviscerated Fancaster's case, making it a strong win for Comcast, but it left a few residual legal issues open. Yet, the legal battle has been mooted by the passage of time. Comcast already stopped using Fancast as a brand, and Fancaster still hasn't shown a lot of movement towards developing a real business or even a revenue model. Are the parties really going to spend more money on a pointless lawsuit? We all know what the answer should be; let's see how they actually answer.

For more on the case, see Rebecca Tushnet's 43(B)log .

Well, well, well. Here's something interesting. Comcast, who owns NBC Universal (one of the main forces behind SOPA/PIPA), is officially a SOPA/PIPA supporter. However, yesterday, Comcast put up a post congratulating itself (deservedly so!) for completing its DNSSEC deployment, making it "the first large ISP in the North America to have fully implemented" DNSSEC across the board. That's huge, and a clear vote of confidence for DNSSEC, obviously. They also urge others to use DNSSEC:

Now that nearly 20 million households in the U.S. are able to use DNSSEC, we feel it is an important time to urge major domain owners, especially commerce and banking-related sites, to begin signing their domain names. While in the past those domains may have wanted to do so but felt it would have limited effect, they now can work on signing their domains knowing that the largest ISP in the U.S. can validate those signatures on behalf of our customers.

All of this is good... but what may be much more interesting is that, along with this announcement, Comcast has also mentioned that it is shutting down its Domain Helper service. Domain Helper was a somewhat controversial DNS-redirect system, so that when you mistyped something, it would suggest the proper page or alternatives. Many in the internet community complained that these types of redirects mess with the underlying DNS system (which they do). But, as the DNS experts have been saying all along (and NBC Universal has been trying to play down), DNSSEC is incompatible with such DNS redirects. So... that makes this next part a little awkward. Comcast is now admitting, indeed, that DNS redirects, such as Domain Helper, are incompatible with DNSSEC:

When we launched the Domain Helper service, we also set in motion its eventual shutdown due to our plans to launch DNSSEC. Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks). Since we want to ensure our customers have the most secure Internet experience, and that if they detect any DNSSEC breakage or error messages that they know to be concerned (rather than not knowing if the breakage/error was "official" and caused by our redirect service or "unofficial" and caused by an attacker), our priority has been placed on DNSSEC deployment -- now automatically protecting our customers...

Let's be doubly clear about this, because it's important. Just as NBC Universal and other SOPA supporters continue to insist that DNS redirect is completely compatible with DNSSEC... Comcast (and official SOPA/PIPA supporter) has rolled out DNSSEC, urged others to roll out DNSSEC and turned off its own DNS redirect system, stating clearly that DNS redirect is incompatible with DNSSEC, if you want to keep people secure. In the end, this certainly appears to suggest that Comcast is admitting that it cannot comply with SOPA/PIPA, even as the very same company is advocating for those laws.

It would appear that the left hand (people who actually understand technology) isn't speaking to the right hand (lawyers/lobbyists) within the Comcast family. But, I think that NBC Universal and anyone else insisting that DNS redirects are fine in DNSSEC owe everyone else a pretty big apology... when their own company's experts are admitting that the two are incompatible.

While we've seen plenty of judges recognize that copyright troll outfits suing a bunch of people at once for copyright infringement are really nothing more than a fishing expedition to identify people to be sent demand letters for payment, it appears a few judges still don't recognize how this is a serious abuse of the legal process. toyotabedzrock alerts us to the news that U.S. District Court Judge Alexander Williams in Maryland has ordered Comcast and Verizon to turn over names in two cases involving (of course) porn companies. What's even more ridiculous here is that Judge Williams should clearly recognize that these cases were almost certainly legal shakedowns, rather than actual cases, because one of the companies involved, Patrick Collins Inc, immediately dropped the case against one of the John Does sued because that defendant got himself a lawyer. If that doesn't indicate that the company doesn't actually want to fight these cases in court, but just wants to get the names to send demand letters, it's difficult to know what would convince the judge.

It was barely a week ago when we reported that Universal was planning to test a $60 Video On Demand release of Tower Heist only 3 weeks after the theatrical release of the film. In that report, we noted that theater owners were threatening to boycott the film if Universal went ahead with its plans. We now learn that Universal has given into the demands of theater owners and will be putting off its early VOD release of this film. This is not all too surprising as Universal would not want to damage its relationships with theater owners. However, Universal still plans to go forward in the future with this plan as soon as it finds a mutually beneficial deal with theater owners. Nowhere, however, is there any indication that Universal is seeking a plan that is mutually beneficial to consumers.

There are times when I wonder just what various entertainment industry execs are thinking (or drinking or smoking, as the case may be). Back in April we laughed at the idea that people would be interested in paying $30 for video on demand for a movie, just because they could get it a little bit before it came out on DVD. The $30 price point was just too high. And, of course, it didn't take long for the news to come out that... $30 was just too high and almost no one bought.

So what do you do if that plan fails? Well, if you're smart, you look at more reasonable price points. If you're not... you raise the price. Yes, that's right. Universal, with the assistance of parent company Comcast, is now going to test the preposterous $60 video on demand offering. The reason for the jacked up price? Because it'll come out on VOD three weeks after being released in the theaters -- at which point the film will still be in the theaters. The test is also going to be done on what the studio hopes is going to be a blockbuster: Tower Heist, starring Eddie Murphy, Ben Stiller and Matthew Broderick.

Here's what's wrong with this: the studio is thinking about this from the studio's perspective and not the consumer's perspective (at all). Of course, this is NBC Universal we're talking about, so that's not particularly shocking. In the studio world, release "windows" are everything. And each later release window is less and less of a big deal. So it's totally natural to them to think "gee, if we move up the release window, that's more valuable, so let's jack up the price." But a consumer isn't thinking about release windows. A consumer is thinking "I want to watch a movie. I could go out to the theater, or I could watch it at home." And then they look at the option at home... and if they can, say, watch a film at no additional cost from Netflix... or if they can grab a movie at Redbox for $1... and they compare that to $60 for video on demand, who's actually going to do that? The pricing is insanity.

Even funnier, however, was watching how the theaters totally freaked out over the original $30 plan, as they do with any plan to shrink the precious "window" between the theatrical release and any other kind of release. This is because theater owners don't know what business they're in. They think that they're in the content business, when they're really in the business of selling their seats. The fact that theater owners thought they couldn't compete with an insane $30 rental suggests that they don't know how to provide a good experience.

And, of course, now that there's an even more ridiculous $60 price point, you would think that the theater folks would chuckle and say "hey, we can compete with that, no problem." But it appears theater owners may be even more unable to comprehend the mind of the consumer than the execs at NBC Universal. Thus, Cinemark is already warning that it will boycott the movie if Universal goes forward with this plan.

In the meantime, it's also worth noting that the theaters convinced a bunch of big name Hollywood directors to sign an open letter to the studios protesting these kinds of "early" VOD releases. One of the names on that letter, by the way? Brett Ratner. The director of Tower Heist. Embarrassing... He is, of course, trying to distance himself from this trial, noting that he wasn't informed of it until the day before it was announced and had nothing to do with it. Of course, that's part of what happens when you do a deal like this. The studio owns the project, and they can do whatever they want with it.

Either way, don't expect too many people to pay up for this experiment. It almost makes you wonder if the idea is to make it fail on purpose.

First thing's first: let's face up to the fact that online polls (especially on political issues) are pretty close to meaningless. However, Jamey Fletcher points us to a rather amazing graphical mess perpetrated by MSNBC in response to Ron Paul supporters flooding the vote for its online poll concerning who won the recent dog & pony show debate among a bunch of Republican presidential wannabes. Here's the screenshot he took, and the live poll certainly looks similar to me right now as well (though, at last check, Paul has an even larger percentage of the vote): Now, as Jon Stewart has pointed out, the mainstream press loves to ignore Ron Paul. But math is math. 50% is not just a nudge above 17%... and yet that's what the graphic appears to show. In fact, on Jamey's screen the top two bars are 368 pixels and 244 pixels. That's a very different ratio than 50% to 17%.