Wow. Just... wow. Following the net fight between The Oatmeal webcomic creator Matt Inman, and aggregator of non-funny stuff, Funnyjunk, we've been pointing out that Funnyjunk's lawyer, Charles Carreon needs to stop digging himself deeper into the hole he's found himself in. Instead, he seems to have decided on the opposite strategy, and he's digging deeper and deeper every minute.

If you don't recall, he was trying to shut down the fundraising effort that Inman set up in response to Funnyjunk's threat. And then he accused Inman of "instigating security attacks" against his website. The latest is that he's now redirected his own website to a sales page for his book, but also has done an interview with Dave Thier at Forbes, in which he's even more aggressive in fighting back against Inman and those who are mocking him. It's really quite incredible. Thier describes Carreon as being "excited about this bizarre new world he had stumbled into" and now focused on somehow pinning the blame on Matt Inman:

In his 20 years as a lawyer, he says, he’s written hundreds of letters like the one he sent Inman, but the response to this one was unique.

“So someone takes one of my letters and takes it apart. That doesn’t mean you can just declare netwar, that doesn’t mean you can encourage people to hack my website, to brute force my WordPress installation so I have to change my password. You can’t encourage people to violate my trademark and violate my twitter name and associate me with incompetence with stupidity, and douchebaggery,” he says. “And if that’s where the world is going I will fight with every ounce of force in this 5’11 180 pound frame against it. I’ve got the energy, and I’ve got the time.”

Except, uh, nowhere has Inman "declared netwar" nor has he encouraged anyone to hack Carreon's website. If it's true that scriptkiddies have gone after Carreon's website, that's unfortunate, but it's a ridiculous (and obnoxious) stretch to pin the blame for that on Inman. Of course, associating someone with incompetence, with stupidity and with douchebaggery is broadly a statement of opinion. There's a First Amendment thing we have that generally says that's okay. People can call each other stupid douchebags, and we like that in America.

For color commentary, we turn to Ken at Popehat, who decides to educate Carreon on the First Amendment:

The implications of Mr. Carreon's position are profoundly chilling. Under the rule he seems to suggest, if you write about bad behavior by someone else, even if you don't urge action, you run the risk that you will be held liable when one of your readers is inspired to hack or threaten or harass. Perversely, this means that the more criminal or unconscionable or horrific the conduct you are describing, the greater legal risk you take by writing about it. That's not the law, thank God. The very suggestion is un-American and contemptible.

Moreover, note that Mr. Carreon is suggesting that it is actionable not only to inspire people to undertake (alleged) illegal action, but actionable to inspire people to "associate me with incompetence with stupidity, and douchebaggery." In other words, if your criticism of someone's conduct leads others to form an opinion of him, and express that opinion, that's actionable. That's true to the extent that someone states false facts about a person — for instance, by falsely accusing them of child abuse. But The Oatmeal offered satirically expressed opinions about Mr. Carreon's conduct in a letter which The Oatmeal presented to his readers to review. To the extent that The Oatmeal opined that Mr. Carreon is incompetent, stupid, and a douchebag, those are classic opinions absolutely protected by the First Amendment. Under First Amendment law governing defamation, they are particularly protected because The Oatmeal presented the facts based on which he drew his opinions — namely, the letter itself. Under the theory that Mr. Carreon seems to be advancing, if I wrote you a letter suggesting that your wife beds down with diseased ocelots and calling for your children to be flogged, and you publish the letter and say that it suggests that I am a disturbed person of low character, then I would be legally responsible if people formed the same opinion based on the evidence you provided. Indeed, under Mr. Carreon's apparent theory, if he criticizes The Oatmeal's response to him as vulgar or unprofessional or uncivilized, he's legally responsible for people agreeing with him. This is not law, this is madness. And bear in mind that Mr. Carreon markets himself as a First Amendment champion.

But Carreon has decided that "there must be a law!" against this, and dammit, he's going to find it:

He may have a very difficult time proving that Inman “instigated attacks,” as he said on his website, but he’s certain he can find some legal recourse for what’s going on right now – “California code is just so long, but there’s something in there about this,” he says.

Back to Ken at Popehat, who notes in response, why yes, there is a law:

Oh, Mr. Carreon, indeed there is. There's California's magnificent anti-SLAPP statute, under which you'll be paying the attorney fees of anyone you sue. There's California's judgment debtor exam law, under which you can be interrogated about your income and assets in preparation for garnishing your income and, if necessary, seeking liquidation of your assets to satisfy a judgment for attorney fees against you. There's California's sanctions statute, under which you can be sanctioned for bringing suit to harass or without adequate legal or factual basis.

Read them carefully. And think. Think hard. Step back from the precipice. This can get better, by you letting it go. Or it can get worse. Much, much worse.

Carreon tells Thier that he welcomes "the opportunity to confront legally the misuse of a new technology." First of all, it's not that new, and he might want to do some digging into other clueless lawyers who have sought to shut down online criticism of themselves. Carreon is still digging and he's going to lose very, very badly in court with the arguments he's making right now. Given his statements to various reporters, he's already made it clear that he's seeking to suppress speech and that he's willing to use any law he can find to do so. That's a particularly short-sighted thing to do, given California's relatively strong anti-SLAPP law, which one hopes Carreon familiarizes himself with.

But, really, there's the bigger issue: what the hell is he thinking at this point? And isn't there anyone with a basic grasp of the internet who knows him who can sit him down and tell him to stop digging?

As the Justice Department continues to pretend there's nothing strange at all about its highly questionable tactics in shutting down Megaupload and having its executives arrested, the courts are still struggling with the details. A few weeks back, we noted that a judge in New Zealand rejected the US's demand that New Zealand merely rubberstamp an extradition order to the US, despite there being numerous questions over the case itself and whether or not extradition is appropriate. As part of that, the judge also ordered the US Attorneys to hand over the evidence they're using to make the case against Dotcom and his colleagues, such that they can properly respond to the evidence. The US, as you might expect has gone absolutely ballistic about this, insisting that such an effort is impossible -- and that "it would take at least two months" to get the evidence together.

Of course, to some of us, that suggests that the DOJ hasn't yet looked at the evidence -- and thus it shut down the company and arrested its staff first, without even knowing if a crime had been committed.

Either way, that months-long delay presented a problem, since New Zealand had scheduled the extradition hearing for August 6th, and the Megaupload legal team deserved some time with the evidence to formulate its defense. The latest, however, is that New Zealand's High Court has agreed to an "urgent review" of the original ruling. The court also told the US to start the process of putting together the evidence to hand over to Dotcom's lawyers, but that it can wait until the High Court has reviewed the case before actually handing them over.

No matter what, this is once again showing the US's hubris in this case -- assuming it could waltz into New Zealand, with highly questionable evidence, shut down a company, and extradite the executives to the US without anyone asking questions. With each move in this case, more questions are raised about the competence of the DOJ staff who worked on this case, led by Neil MacBride -- a former "anti-piracy VP" for the copyright industries, who may have let his biases and previous (and future?) employers' interests get the best of him.

Gamers who cheat are an issue that lots of online games have to deal with, though some are much more aggressive than others. In the past, we've argued that it's overkill to ban such players completely, especially when the "cheats" are really just exposing glitches or bugs in the game itself (i.e., fix the damn game, don't blame the players for your lousy coding). Either way, there's a legitimate concern that some people are getting an unfair advantage and harming the experience for everyone else. Well, now it appears that Rockstar Games has come up with a solution that's slightly more elegant than the sledgehammer of a complete ban. Instead, players caught cheating will be quarantined to a version of the game with each other. So, yes, you can keep playing, but only against other players who are cheating as well.

Anyone found to have used hacked saves, modded games, or other exploits to gain an unfair advantage in Max Payne 3 Multiplayer, or to circumvent the leaderboards will be quarantined from all other players into a "Cheaters Pool", where they'll only be able to compete in multiplayer matches with other confirmed miscreants. In the event we decide to absolve any of these cheaters for their past transgressions they may re-enter play with the general public, however a second offense will result in their indefinite banishment. In either case, we will be removing invalid leaderboard entries to ensure that the players at the top of the charts have earned their spots fairly.

I am a little curious about the appeals process (it would be awesome if they built an in-game courtroom...), but overall, the solution seems a lot more sensible than outright bans. While some are wondering if some players may prefer this "Cheaters Pool," I don't see how that's a problem. It basically allows Rockstar to offer two different versions of the game, in which the skills required are slightly different.

The Cola Wars have been over for a long time. As usual in war, there are no real winners -- just a lot of wasted spending. Now that we're giving peace a chance, here are just a few lingering concerns over these dark-colored soft drinks.

• Coca-Cola and Pepsi are going to modify their recipes a little bit to reduce the amount of caramel coloring and 4-methylimidazole in their colas. Otherwise, a California law would require a cancer warning label since the 4-methylimidazole in the coloring is a known carcinogen. [url]
• There was a fairly complex conspiracy theory behind the introduction of New Coke which suggested that Coca-Cola knew how badly the new formulation would taste to consumers, but that the company made it in order to replace sugar with HFCS. Bonus points for definitively debunking this conspiracy theory... [url]
• If you've ever seen a demonstration of a can of cola dissolving teeth, you might be a bit freaked out by the phosphoric acid listed in the ingredients of many sodas. But the dose makes the poison, and the concentration of phosphoric acid in soft drinks shouldn't worry anyone. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

TorrentFreak has the story of how media company Central European Media Enterprises apparently is using highly questionable copyright claims to censor a YouTube video of someone criticizing CEME's reporting on copyright via their BTV channel. This is happening in Bulgaria, where the company put on a TV show "investigating" two popular BitTorrent trackers, Zamunda and ArenaBG, that are based in that country. Apparently, the report was heavily biased in one direction:

The show went on to press the one-download-one-lost-sale mantra, suggested that a “3 strikes” regime should be considered to deal with infringement, and criticized local ISPs for providing high-speed connections used for pirating.

BTV also claimed to have contacted the operators of Zamunda so that their side of the story could be heard, but a source close to the site told TorrentFreak that after initially making contact and getting Zamunda’s attention (just 3 days before the show was aired), the show failed to respond to further contact from the site.

The end result, critics say, was an ‘investigative’ report biased towards rightsholders at a time when bTV is not only promoting its just-launched Voyo PPV service, but simultaneously running an anti-torrent site campaign of its own.

You can see why this might draw some criticism. Another journalist, Ivan Stamenov, did a rebuttal video, which he posted on YouTube, entitled "BTV and torrents: Shock Dose of Ignorance." BTV's response was to issue a takedown, claiming copyright. He does admit that there is a piece of the video that shows the BTV logo, but he insists that's about the only thing that might be infringing (and that would actually be trademark, not copyright). Either way, it seems pretty clear that this takedown has little to do with the copyrights (though it may have plenty to do with the fight over the concept of copyright), and was very much focused on trying to silence a critic.

NeverSeconds is a blog by a 9-year old primary school student, Martha Payne, photographing and blogging about the school lunches she's served daily. The blog, which only started on April 30th, apparently got a small bit of news coverage... leading the local regional council to issue a ban on the blog, because "media coverage of the blog had led catering staff to fear for their jobs." Except... then the internet exploded in protest, and the council (after one weak attempt to defend its position) changed its mind and issued a statement which "supersedes all other council statements on this matter already issued." In the statement, from the head of the council, it is said that the ban should be lifted (not that it has been) and that "there is no place for censorship in this Council."

That said, the statement still seems upset about the news reporting on the school lunches:

But we all must also accept that there is absolutely no place for the type of inaccurate and abusive attack on our catering and dining hall staff, such as we saw in one newspaper yesterday which considerably inflamed the situation. That, of course, was not the fault of the blog, but of the paper.

We need to find a united way forward so I am going to bring together our catering staff, the pupils, councillors and council officials - to ensure that the council continues to provide healthy, nutrious and attractive school meals. That "School Meals Summit" will take place later this summer.

Either way, the end result is a hell of a lot more people are aware of Martha's blog (and the kind of meals her school serves). The BBC says that in the past couple days, she's received over 3 million visits to the site. The BBC even put up a separate article explaining how the case is a perfect example of the Streisand Effect, and how attempts to censor content backfire. And... just as in the case with The Oatmeal v. Funnyjunk, this Streisand Effect is being used to turn an attempt at censorship into a way to raise money for charity. Martha put up a crowdfunding page to try to raise £7,000 for a charity and it's already made over £48,000.

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?

THREsq alerted us to the news of a company named DietGoal, which appears to not exist for any reason other than to sue over patents, and which has sued the TV network Bravo for creating a recipe finder website. The claim is that it violates US Patent 6,585,516 for a "method and system for computerized visual behavior analysis, training, and planning." The patent basically seems to describe an online recipe database in which "the user can use the Picture Menus to choose meals for a particular time period to correspond to a customized eating plan."

I started to look further into the lawsuit, and I realized that Bravo was not the only target of DietGoal. Not by a long shot. Last September, right before the new patent law went into effect making it difficult to bundle defendants, DietGoal sued a ton of sites -- mainly focused on restaurants (including, but not limited to, Arby's, Chick-fil-A, Dairy Queen, Dunkin' Donuts, Jack in the Box, McDonald's, Panda Express, Taco Bell, Sonic, Wendy's, Burger King, Whole Foods, Tim Hortons, Dominos and Starbucks) as well as a few non-restaurants, including Weight Watchers, Google, IAC and Hearst Communications. If you look at the docket on that one, there are a ton of "dismissals" by DietGoal, which likely means that it was successful in getting the companies to pay up. Others do appear to be fighting it and hitting back with counterclaims and questioning the validity of the patent. Some, like Dominos and Wegmans also sought to break apart the case and make DietGoal face each defendant individually in different cases. That case has also bounced around among a few different judges already.

On April 3rd, DietGoals filed an amended complaint in that original case, attempting to add in a huge list of new defendants -- including Bravo and a bunch of others (many of whom we'll discuss in a bit). On May 24th, the magistrate judge denied DietGoal's motion to file that third amended complaint with all those other parties.

That brings us up to this week, in which DietGoal filed a bunch of lawsuits against a variety of companies (those it had tried to lump into this lawsuit) -- with each one being sued individually. So... yes, there's the lawsuit against Bravo, but also suits against AllRecipes.com, CalorieKing, ConAgra (for having a product nutrition search engine on its site -- no, I'm not kidding, check the complaint), General Mills, Nestle, Nutrisystem, Food.com, SparkPeople, Time, Inc. (for RealSimple.com), WebMD and some others as well.

Basically, it looks as though the DietGoal is operating under the premise that anyone who offers recipes online should have to pay it some money. Of course, all of this should make you wonder: was a patent really needed for the sake of encouraging companies to put databases of recipes online?

With all the talk lately about cybersecurity legislation, we've still yet to see anyone lay out an actual scenario for a real "cyber security" threat (or, at least one that goes beyond your everyday malware or corporate espionage, which are covered by existing laws just fine). However, we have heard lots of fear mongering about planes falling from skies and electric grids being shut down -- despite no evidence that there is any such threat (and, if there is, the concern should be focused on why those things are hooked up to the internet in the first place). And, of course, in all this fear mongering, there's one phrase that stands out: "Digital Pearl Harbor," as in, "we must protect ourselves before there's a digital Pearl Harbor."

David Parera, over at FierceGovernmentIT, has done the dirty work of tracing the history of the phrase, and suggesting that these Chicken Littles have been warning about the "imminent" digital Pearl Harbor for many years now.

The earliest public reference appears to be in a June 26, 1996 Daily News article in which CIA Director John Deutch warned that hackers "could launch 'electronic Pearl Harbor' cyber attacks on vital U.S. information systems."

The next month, then-Deputy Attorney General Jamie Gorelick told the Senate Governmental Affairs permanent subcommittee on investigations that "we will have a cyber-equivalent of Pearl Harbor at some point, and we do not want to wait for that wake-up call," according to the Armed Forces Newswire Service.

Thereafter the term appears to have gone into a hiatus, apart from some offhand or derivative references to the original sources cited above. But, not to worry, Sen. Sam Nunn (D-Ga.) used it again in the spring of 1998, being quoted in a March 19 South Bend Tribune article warning that "We have an opportunity to act now before there is a cyber-Pearl Harbor...We must not wait for either the crisis or for the perfect solution to get started."

There's a lot more where that came from, so go hit the link, read it, and be amazed.

Of course, as Parera notes, just because every single one of those fearmongering reports turned out to be false, it's still possible that the "Digital Pearl Harbor" is right around the corner. But, still, it at least raises significant questions of how important it is that we rush through the bill without an explicit explanation of the true threat. Of course, that won't really matter, as everyone's basically playing a giant game of musical chairs, trying to be ready to claim they "called it" should these horrible things ever actually happen.

We've mocked various newspapers for their ridiculous "social media policies" in the past -- which often try to limit how reporters engage with the community. The whole notion seems backwards. But now one newspaper -- the Colorado Gazette -- has taken things to ridiculous extremes: putting reporter Barrett Tryon on administrative leave for posting a link to a news story about his own newspaper on Facebook. Apparently, the Colorado Gazette's parent company, Freedom Communications, was purchased by a company called 2100 Trust. Soon after that happened, the LA Times reported that the company expected to spin off some of the smaller newspapers, including the Gazette. Given all of this, Tryon posted the following to his Facebook page: The text is a direct quote from the LA Times. The "content director" for the Gazette apparently told Tryon that he had to take down the status update, saying he needed to "remove it per our social media policy which you signed upon employment." The claim was that "this does not meet our standards of factual information" and thus was "perpetuating rumor..."

This is, of course, crazy. Tryon, rightly, pushed back and refused, and there was some back and forth (detailed at that csindy.com link above) eventually leading to a "referral to human resources" for possible disciplinary action. Tryon, reasonably worried, sought to bring his lawyer to the meeting. However, HR told him that the original meeting was cancelled, and that since the company's own lawyer couldn't be there it would be "one-sided" for him to bring his own lawyer. Instead... they placed him on administrative leave, despite no actual meeting or chance to hear his side of the story.

Yes, the end result is that a reporter for a newspaper has basically been suspended from his job for the sin of posting a link to a credible news source about something that was happening with his own company. And people wonder why these kinds of newspapers are having trouble staying in business (or attracting top talent). Who would ever want to work for this newspaper?

What is it with lawyers who default to being over-aggressive, without (apparently) stopping to think about how such aggression will almost certainly backfire? Today's such story focuses on one Neil Meyer, a prominent Beverly Hills lawyer, who represents the Hollywood actor Chris Evans. On June 12th, a blog called the "Celebrity Smack Blog" posted a story with the title "Exclusive! Chris Evans Might Have An STD", which has now been taken down, though Google still has a cache at the time of this writing. It's the sort of typical crap you'd expect from a site called "Celebrity Smack Blog" -- a totally unsourced rumor from an anonymous person (described as "one of my best sources in Los Angeles" which means absolutely nothing). Given that it's on a silly blog and not particularly believable, chances are this is the kind of story that would get a brief bit of buzz and then disappear. Indeed a few other celebrity gossip sites appear to have picked up on the story, but most people don't seem to care, and it certainly doesn't appear on any major site.

Either way, a user on the forum Lipstick Alley posted the story to that forum, with a link to the original, some quotes from the story and the comments, and a random picture of Evans. Meyer quickly sent a threat letter that really tries to include everything but the kitchen sink. It argues that even though Lipstick Alley is a forum, it is responsible for what its users post (which is clearly wrong under Section 230 of the CDA). It argues that the site "fraudulently" and "intentionally" published the post, again despite it being a forum where a user posted the information. Meyer also seems to claim that reporting on Evans -- regardless of whether or not the information is factual -- is a misuse of his publicity rights (which is clearly wrong under the First Amendment). He also claims that merely linking to content that may be defamatory is, itself, against the law. He demands that the site "permanently remove any mention of Mr. Evans" even beyond this particular story -- which, again, has no legal basis.

Oh, and lest we forget, he pretends that he can unilaterally declare that the letter itself is secret and that the site cannot even "report on its substance" let alone publish it:

This letter is confidential legal communication and you are specifically prohibited from publishing any portion of it or reporting publicly on its substance in any way.

Some of the sites (including the original) that had the story appear to have taken them down, suggesting that perhaps they received similar letters. However, the folks who run Lipstick Alley, thankfully, work with lawyer Paul Levy, and have an understanding of the basics of the law and their own liability. Levy has responded to the letter (embedded below) and posted Meyer's letter and his own response publicly. I highly recommend reading both letters. Levy calls Meyer's attention to the legal failings of his threat letter -- and suggests that Meyer's strategy is bound to backfire, due to the Streisand Effect:

Lipstick Alley is not gong to comply with any of your demands. And, indeed, I cannot think of a strategy better suited to drawing both yourself and Evans into disrepute than by sending a letter such as yours. Given that you are billed as an "entertainment lawyer," it is amazing that you may have never taken the "Streisand effect" into account in deciding whether to send your letter.

I actually think there are a few places where Levy even underplays the ridiculousness of the original letter. Beyond the fact it's a user forum, Meyer's arguments, taken to their logical conclusion, would mean that no site could report on or show an image of Chris Evans without his permission. That makes little sense and the First Amendment clearly makes a mockery of such a claim.

And we won't even bother to discuss the ridiculousness of telling Lipstick Alley that it can't even report on the substance of the letter, let alone its specific contents.

Of course, there are a few clues that perhaps the reason that Meyer is unfamiliar with things like the Streisand Effect has to do with the fact that he's not particularly tech savvy. The letter notes that it was "dictated" (old school!), for one thing. But, I also noticed that Meyer's law firm, Stone, Meyer, Genow, Smelkinson & Binder, LLP, doesn't even appear to have a website. The domain which is listed as a part of Meyer's email address in the letter... takes you to a GoDaddy holding page. Yes, GoDaddy.

Hint to Hollywood stars: if you're going to hire an entertainment lawyer to try (badly) to police rumors about you online with questionable legal threats, perhaps first check to see if they have a website themselves.

Net Neutrality has suddenly become a hot topic again. Partly, that's thanks to some awful ideas about regulating the Internet coming from the International Telecommunication Union, notably those proposed by the ETNO -- the European Telecommunications Network Operators Association -- discussed recently on Techdirt. New information from WCITLeaks Wikileaks (found via the Net neutrality in Europe site) provides us with the following details (pdf):

To ensure more efficient use of networks and to allow for new business models better reflecting future demand, Member States should support a new IP interconnection ecosystem that provides both, best effort delivery and end-to-end Quality of Service delivery. Delivery based on QoS allows for management of the IP traffic according to its characteristics (i.e. delivery requirements and acknowledged value) thus supporting innovation to provide a value-added service, making better use of the assets of telecommunications operators.

That may sound innocuous enough, but "supporting innovation to provide a value-added service" is a coded way of saying that the telcos should be allowed to abandon net neutrality, something confirmed in one of the accompanying proposals, which reads:

Art. 4
International Telecommunication Services
4.4 Operating Agencies shall cooperate in the development of international IP interconnections providing both, best effort delivery and end to end quality of service delivery. Best effort delivery should continue to form the basis of international IP traffic exchange. Nothing shall preclude commercial agreements with differentiated quality of service delivery to develop.

The key sentence is the last one: "differentiated quality of service delivery" means ignoring net neutrality.

That proposal to move away from net neutrality contrasts with the Netherlands' decision to enshrine it in law:

The net neutrality law prohibits internet providers from interfering with the traffic of their users. The law allows for traffic management in case of congestion and for network security, as long as these measures serve the interests of the internet user. A technical error in the law might still be corrected in a vote on 15 May. [It was.]

In addition, the law includes an anti-wiretapping provision, restricting internetproviders from using invasive wiretapping technologies, such as deep packet inspection (DPI). They may only do so under limited circumstances, or with explicit consent of the user, which the user may withdraw at any time. The use of DPI gained much attention when KPN admitted that it analysed the traffic of its users to gather information on the use of certain apps. The law allows for wiretapping with a warrant.

DPI is one of the most intrusive ways of undermining net neutrality, since it involves looking inside the data part of an IP packet, not just the header, which contains basic information such as source and destination IP addresses. A recent study from a team at the Syracuse University School of Information Studies has explored the use of DPI to throttle BitTorrent connections:

In order to better understand DPI use and the scope of its deployment, the project makes use of crowdsourced data from a network monitoring test known as Glasnost. An Internet user who runs the Glasnost test can see whether BitTorrent is completely blocked by their ISP, slowed down (throttled), or running normally.

The results for various countries are available as graphs of ISP throttling against time, and show the wide variation in BitTorrent throttling -- and hence the extent to which net neutrality is preserved around the world and by different Internet service providers.

The good news:

BitTorrent throttling by most US ISPs ceased after an FCC ruling in August 2008 that declared Comcast’s actions to be against its 2005 Internet Policy Statement. Only wireless ISPs Clearwire and Hughes showed high levels of BitTorrent manipulation after August 2008, but Clearwire substantially reduced it in 2009. But the Comcast Order was reversed by the courts in April 2010. This data shows that no US ISPs have increased their use of DPI-based throttling since April 2010, despite the absence of any network neutrality regulation in the US.

And the bad news:

The UK is one of the few countries where BitTorrent manipulation appears to be on the rise. DPI measurements for the BT Group in particular increased progressively throughout the 3-year period. Talk Talk’s use of it seems to have declined, but it is still consistently above the threshold indicating some form of manipulation. Test results for O2 UK move erratically slightly above and below the error threshold, making any conclusion difficult. Virgin Media, on the other hand, seems to have altered its policy and increased DPI-based intervention in the 4th quarter of 2010.

At a time when much of the debate about net neutrality is driven by dogma, it's particularly valuable to have some objective data on what's really happening. It's worrying that it turns out that net neutrality has been under assault in some countries for a while -- and disturbing that ETNO wants to intensify that attack still further.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

anothercultland points us to a post over at Digital Music News (obnoxiously entitled "Want More People to Care About Your Music? Then Charge for It…") which, though massively overstated and oversimplified, actually gets at a point I've been thinking about for a while now. The basic premise is that the power of "perceived value" can make charging for music a better proposition than giving it away for free, based largely on a comment from an indie artist:

The music industry isn't the best at studying pricing (that's for sure), but there's evidence that price tags actually increase overall interest and demand for your music - whether that results in a paid transaction or not. Here's a comment from a seriously DIY artist in the trenches, Steady Fingers, who experienced something unexpected.

"But it's funny that even when I used to give away [my music] for free, there wasn't much traffic nor many downloads, almost nothing. Then we decided that we should put it up for sale so that we might be able to recoup some of the money spent on making the music videos (when it's your brother making the videos, I still consider it DIY.) Anyway, as soon as people saw that the music was up for sale, the website and other related social media gizmos received much more attention. Also, people began looking for ways to download it for free, which isn't always a bad sign."

Welcome to the strange world of 'perceived value,' a murky science that enables all sorts of obscene markups - whether at Starbucks, Gucci, or the Apple Store. But the basic idea is this: the simple presence of an elevated price tag - or a price tag at all - is often enough to convince someone that this product has worth.

There is actually some truth to this idea, but only under specific circumstances and with a whole lot of caveats. Perceived value is a real thing, and it can be pretty powerful—but there are significant limitations on how it can be applied to an infinite good like digital content. A good (non-musical) example is self-published Kindle novels: for an author just starting out, it's actually probably a good idea to charge $0.99 instead of making it free, because of the way Amazon separates the lists of free and paid books. Of course, as authors like Joe Konrath have discovered, books at $0.99 make a lot more money than books at $2.99—so the limitations of perceived value come into force quite quickly. In app stores, paid apps may once have held some clout over free ones—but now many of the top grossing apps are free and ad-supported, and the perceived value of a price tag to download has all but disappeared.

And it's disappearing everywhere, as the lines between professional and amateur get weaker all across the media spectrum. I buy a lot of $5 and $10 albums on Bandcamp, and I also download a lot more free ones—and I can't really remember which is which. For indie music, price is a poor indicator of quality. Besides, pretty much all music can be streamed first in a "try before you buy" fashion now, so any perceived value is quickly supplanted by an actual evaluation of the product. Just as with books in the Kindle store, there may be certain venues in which adding a price tag offers some advantage, but that can only go so far and it could always disappear in an instant.

Beyond that, and perhaps most importantly, there is nothing that says you can't charge for your music and also give it away for free. Or, at the very least, charge for it but accept (or better yet embrace) piracy. When payment becomes optional for fans and prospective fans, then they see it as an affirmative choice to support the artist, and many will make that choice. Dan Bull sold enough copies of his Sharing is Caring single to hit the pop charts, and a lot of the attention came not from the fact that he was charging money, but from the fact that he was also giving it away for free (as he does with all of his music). By offering an option to buy and an option to download for free, you get the best of both worlds: the power of perceived value in those few cases where it counts, and the attention of the growing number of people who don't view content that way anymore.