The various ways in which the big ISPs would implement their version of the "six strikes" Copyright Alert System had mostly been leaked over the past few months, but there had been nothing coming out of Comcast. AT&T planned to block "frequently visited websites" after the fourth strike. Verizon planned to throttle speeds so low that it would drive users crazy. It looks like Comcast is doing something similar to Time Warner, which means that after four accusations (not convictions, not proof of guilt, just accusations), anyone using the account of someone who hits that strike will have all of their browsing hijacked and sent to a landing page that they cannot get around. Oddly, for reasons that don't make much sense, the page that TorrentFreak links to on Comcast's site disappeared. If I go to it, I get a 404 not found. But if I do a search on the keyword "mitigation," it still shows up in the index. Then I click, and the page is still gone. Either way, while it's technically true that they're not "cutting off" people, they are clearly cutting them off from the wider web.
"If a consumer fails to respond to several Copyright Alerts, Comcast will place a persistent alert in any web browser under that account until the account holder contacts Comcast's Customer Security Assurance professionals to discuss and help resolve the matter,"
No information is given on what it means to "resolve the matter." It's hardly a surprise that Comcast would choose the most extreme option, considering that it owns NBC Universal, whose execs supposedly drove much of the discussion around the CAS system. In the meantime, are we still supposed to believe, as per the cheery video that the Center for Copyright Information put out, that this is all for the benefit of ISP users?
Kevin Collier over at the DailyDot claims he's got it on good authority that the "six strikes" system, officially known as the Copyright Alert System, officially kicks off on Monday, many months later than scheduled. For whatever reason, the organization behind the program, the Center for Copyright Information, has been insisting for some time that there was no official rollout date, and the various ISPs would be individually choosing when to turn on the random assortment of punishment mechanisms made available to copyright holders based entirely on accusations, not conviction or other proof. Apparently, what they meant was that everyone would roll it out in a single week, but on different days. Because that makes so much sense.
The ISPs—industry giants AT&T, Cablevision, Comcast, Time Warner, and Verizon—will launch their versions of the CAS on different days throughout the week. Comcast is expected to be the first, on Monday.
So, now we get to watch people get falsely accused, those with open WiFi suddenly have to fear bogus slow downs to their networks and other assorted collateral damage. Oh, and does anyone actually expect to see a sudden spike in "sales"?
Oh, and the Center for Copyright Information has put up a snazzy new website and video over some non-descript smooth jazz that I'm sure they licensed, and which practically screams the following basic message (note: message paraphrased): "Hey, we're just your friendly neighborhood copyright maximalists, out here trying to make friends and, oh, oops, we just wanted to let you know, in the friendliest way possible, that we think you're lying, thieving pirates, and we'd really like it if you stopped, or we might have to make your internet connection completely useless. But we don't want to have to do that, because we're all friends here, enjoying the internet. Isn't the internet great?"
The video makes a few blatantly ridiculous claims, including suggesting that they have some foolproof technology for seeing whenever you infringe. They claim that the system is designed to "support the creative work that we all love and enjoy." Which is kind of amusing, since nothing in the system is about giving people a reason to buy. Just a reason to get pissed off at ISPs and copyright holders for making accusations. I'm sure that's going to convince so many people to buy.
Remember Malibu Media? That's the copyright troll that has run into some trouble with some of its lawsuits lately and may be in for even more trouble. In November, we noted that they had very aggressively tried to argue that Verizon should shut up and hand over private info on subscribers after Verizon had pushed back on some subpoenas. It sounds like Malibu recently tried the same thing with Comcast... and Comcast has hit back hard. What's incredible is that the lawyers for Malibu Media are so clumsy or sloppy that they didn't even remove Verizon's name from the request. Comcast lawyers wasted little time in highlighting the many problems with Malibu Media's demands:
As a preliminary matter, there are several confusing elements in the Subpoenas that affect
Comcast's approach to responding. First, the two 2088 Subpoenas instruct Comcast to designate
the person(s) "who are the most knowledgeable about the subject matter categories set forth in
Exhibit though there is no "Exhibit A" appended to either of the two Subpoenas that
Comcast received in that case. There are, as identified elsewhere in those Subpoenas,
"Schedules A and B" but no "Exhibit A." Moreover, the Schedule A attached to the Subpoenas
does not set forth any subject matter categories, but rather identifies documents requested for
production. Conversely, Schedule B sets forth subject matter categories. We accordingly
assume that there is no "Exhibit A" and that the reference to Exhibit A (or Schedule A) with
respect to subject matter categories should be "Schedule B" However, if there is an Exhibit A
that happens to be left out, or this assumption is otherwise misplaced, please notify us
Second, the three Subpoenas' Schedules A and refer to "Verizon Internet Services" and
to documents pertaining to Verizon (and, thus, not to Comcast). Of course, Comcast would not
have any documents relating to Verizon or its Internet Services, nor could there be any person(s)
at Comcast knowledgeable about such Verizon documents. We assume these references to
Verizon were intended to identify Comcast, and respond below accordingly. But if that is
incorrect, there would be no documents produced, and no deponent identified, for the separate
reason that Comcast would not have any responsive material(s) or information related to Verizon
Of course, it's not just because of stupid mistakes by Malibu Media's lawyers that Comcast is standing up against the troll. Apparently the subpoenas are asking for a hell of a lot of info, including details about individuals' internet usage, which Comcast reasonably finds to be excessive.
More substantively, Comcast may not provide to any third party documents or
information that include a subscriber's personally identifiable information without first
ensuring compliance with the requirements of Section 631(c) of the Communications Act, 47
U.S.C. 551(c). That Section generally prohibits cable operators from disclosing such
information without the subscriber's express written consent, and also imposes an affirmative
obligation on a cable operator to "take such actions as are necessary to prevent unauthorized
access to such information by a person other than the subscriber or cable operator." Id.
551(c)(1). Section 631(c)(2) provides three exceptions to the general ban on disclosing PII
without the subscribers' express consent. Only one is applicable to your requests as you have
not included any signed consents from the subscribers. Specifically, Section 631(c)(2)(B) states
that disclosure is permitted "pursuant to a court order authorizing such disclosure, if the
subscriber is notified of such order by the person to whom the order is directed."
We note that at a prior stage of this case you obtained a court order authorizing disclosure
of PII for the individuals identified and named in Schedules A and to the Subpoenas. Indeed,
the information gained in response to that earlier order allowed such identification of the
subscribers in the present Subpoenas. But that court order only authorized disclosure of
subscriber names and addresses, and MAC addresses. Schedules A and B to the present
Subpoenas call for a great deal more than names and addresses; rather, they seek PII relating
(among other things) to the DMCA record(s) for the identified subscribers, the identified
subscribers' internet bandwidth usage, specific content watched or accessed by the subscribers,
and bills and invoices relating to use of the service, which in turn would reveal the identified
subscribers' viewing habits, service selections, costs paid, and other sensitive information.
Moreover, some of the documents you seek also concern Comcast confidential and proprietary
information on the operation of Comcast's network, and other document requests refer to
subscriber service usage that Comcast does not track or monitor.
The letter goes on to note additional problems with Malibu Media's demands that someone from Comcast show up in court. It amazes me how some of these copyright trolls act at times, and their assumptions that big companies like Verizon and Comcast don't have lawyers.
The Washington Post has a profile piece about Washington DC power dealmaker David Cohen, who has led Comcast's policy and lobbying efforts for the past decade. It starts out (and ends) with a whopper of a story about Cohen explicitly had Comcast not offer a special internet offering for the poor since he wanted to use it as a bargaining chip in the NBC Universal purchase:
In fall 2009, Comcast planned to launch an Internet service for the poor that was sure to impress federal regulators. But David Cohen, the company's chief of lobbying, told the staff to wait.
At the time, Comcast was planning a controversial $30 billion bid to take over NBC Universal, and Cohen needed a bargaining chip for government negotiations.
"I held back because I knew it may be the type of voluntary commitment that would be attractive to the chairman" of the Federal Communications Commission, Cohen said in a recent interview.
At the end of the article, the reporter (Ceclia Kang) notes that the FCC later "took credit" for this program when it was launched:
The initiative may not have sealed the FCC's decision to approve the NBC merger. But it helped, Cohen said.
The proposal clearly captured the fancy of regulators. Late last month, Genachowski, the FCC chairman, touted the program, seemingly claiming some credit for its creation.
"This particular program came from our reviewing of the Comcast NBC-U transaction," Genachowski said in a speech. "Comcast embraced it as good for the country, as well as good for business. And I'm fine with that."
In other words, Cohen delayed a program to help the poor... in order to help make Comcast much, much richer in buying NBC... and then conveniently engineered it so that the FCC takes bogus credit for the program which would have been launched much earlier if Comcast hadn't used it as a bargaining chip. It's hard not to be cynical about politics in general and the FCC in particular when these kinds of stories hit the press. We've long been concerned about the FCC's ability to be played like a fiddle by industry lobbyists, and this only seems to confirm that point.
We've all heard the refrain from the MPAA a million times: profiting off of someone else's work is "theft" and we need new laws to stop that kind of thing. So, it struck me as interesting to see an article in the Wall Street Journal, claiming that multiple Hollywood studios are planning movies about Julian Assange and Wikileaks:
Among the studios with WikiLeaks movies in development are Time Warner Inc.'s HBO Films, DreamWorks Studios, Comcast Corp.'s Universal Pictures and Annapurna Pictures, the company run by Megan Ellison, daughter of Oracle Chief Executive Larry Ellison.
Most of the article talks about the difficulty of creating a movie based on a true story that's still very much in progress. However, they just barely touch on the question of paying for the story. After all, the story of Assange is based on "his work," right? There had been one project that sought to buy an option on Assange's own memoirs, which were due to be published by Random House, but apparently Assange failed to deliver and the deal fell through. Other projects did option different versions of the Assange story -- but not from Assange himself. One optioned the book from former WikiLeaks spokesman, turned Wikileaks critic, Daniel Domscheit-Berg. Another optioned a profile of Assange that was done in the New Yorker.
However, all of the actual stories focus on Assange and his work in building up Wikileaks. If Hollywood really believes so strongly in not "profiting off the works of others" without fairly compensating them, why aren't they lining up to pay Assange?
Update: Dah. Got fooled on the date. Someone had sent that one anonymously, and we missed that the date was from back in March. Others are reporting the program won't go into effect until the fall.
At this point, it's no surprise, but the RIAA's Cary Sherman has now confirmed that (as had been previously stated) the big ISPs (Comcast, Time Warner Cable and Verizon) will be ready to kick off their "six strikes" plan this weekend. Apparently, the idea of actually giving the public a seat at the table, and looking into whether or not this made sense, wasn't seriously considered. Of course, none of this will do anything to bring revenue back to RIAA or MPAA members. It won't even do anything to stop infringement in the long term. As always, people will figure out ways around this. We've already seen the massive failure of an even stricter program, Hadopi, in France. Can anyone seriously claim that this will somehow work better in the US? Instead, it won't be long until we hear the stories of false accusations, or families who have their internet connection limited or locked down because a neighbor maybe downloaded some infringing content. Little Susie needs to do some research for her homework? Not tonight, kids. Hollywood has to teach you a lesson. Of course, the only real lesson is that the entertainment industry needs to stop blaming customers, and start looking inward, at its own failure to innovate. Pissing people off by limiting their internet connections is not a productive path forward.
Less network investment, less competition, higher prices. Great for investors, not so great for you
Bode's piece focuses on Moffett's silly analysis that the DOJ's interest is in how Comcast and Time Warner are trying to stifle Netflix and Hulu and that will somehow increase prices (huh? what?!?) because they'd take away Moffett's preferred solution of anti-consumer data caps.
However, I wanted to focus in on the larger issue here: the idiocy of short-term Wall Street thinking over long term strategy. Wall Street functions on a quarterly basis mostly -- with an occasional nod to looking out a full year, but rarely anything further than that. This creates stupidly short-sighted incentives that are deathly towards anyone with any long term goals or strategy. It argues that any big strategic investments don't make sense, because they cost lots of money in the short term, but you won't see payback until outside the myopic window of vision of these Wall Street analysts.
Perhaps that's great for day traders, but as Bode notes, it's bad for the public. And here's the thing: it's actually even worse for companies. It's unfortunate how many companies find themselves slaves to Wall Street analysts views in making their strategic planning efforts. Because that holds them back from actually making the important big strategic investments they often need for the future. Every so often you have a more visionary leader who simply ignores the folks like Moffett. You get situations like Ivan Seidenberg at Verizon, who ignored Moffett and invested in fiber -- which is why it's still competitive today. Unfortunately, as Seidenberg got closer and closer to retirement (which happened last year), the company backed away from continuing its build out. Short term thinking over long term thinking.
In some ways, this is the flipside to the Innovator's dilemma. It's an explanation for why big legacy companies fail to respond to disruptive innovation: because they can't. Because they can't put in the effort to be ready for disruption and instead leave themselves wide open to such disruption by not investing in their future, but rather by listening to the Craig Moffetts of the world -- such that the money that could be building a company for the future instead ends up in the hands of Moffett's real clients: the short-term investors.
If we want to build a stronger economy that builds jobs and continues to innovate, we have to figure out a way to diminish the power of Wall Street's short-term focus, and how to incentivize companies to understand what investing for the long run means.
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
“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.