Earlier this year, we brought to you the story of one man's quest to sue all of the news organizations for using a clip of his Facebook video in which his partner is giving birth to his child. Kali Kanongataa sued ABC, NBC, Yahoo, CBS, Microsoft, Rodale and COED Media Group for reporting on the video and showing a clip of it, claiming copyright infringement. It was an odd claim for many reasons, not the least of which being that Kanongataa made the stream public and available on his Facebook page, not to mention the obvious Fair Use case to be made by the news groups reporting on the matter. The suits didn't work, of course, with most or all of them having now been dismissed.

But that wasn't the end of the story for Kanongataa and his crack legal team that saw fit to entertain this frivolity. The judge in the case, Lewis Kaplan, decided to verbally light his lawyers on fire when assessing Kanongataa to pay legal fees to the defendants.

No reasonable lawyer with any familiarity with the law of copyright could have thought that the fleeting and minimal uses, in the context of news reporting and social commentary, that these defendants made of tiny portions of the 45-minute video was anything but fair.

That's a fairly damning statement on the court records for the legal staff of Kanongataa, though it stopped short of sanctioning them. Instead, Kanongataa's lawyers will have managed to get him saddled with these court fees by entertaining this litigious nonsense. Judge Kaplan goes on to state that the case was frivolous and that these fee assessments should serve as a good deterrent in order to "better serve the purposes of the Copyright Act." That purpose is not to reward people who see a payday in the form of plainly Fair Use reporting. And we're not talking about pennies in legal fees, either.

Hence, the media outlets that were on the receiving end of the lawsuit are entitled to recover what may amount to hundreds of thousands of dollars in legal costs. Kanongataa's lawyers from New York—Yekaterina Tsyvkin and Richard Liebowitz—did not immediately respond for comment. The judge gave the media companies three weeks to say how much they think they should be awarded in costs associated with defending the lawsuit.

Big dollars, yes, but that's warranted to keep this sort of thing from regularly mucking up the court docket. Copyright's purpose isn't a get rich quick scheme.

Nobody trusts anybody, and it's probably going to end up affecting end users the most. The Snowden leaks showed the NSA's Tailored Access Operations routinely intercepted network hardware to insert backdoors. The exploits leaked by the Shadow Brokers indicated the NSA was very active on the software exploit front as well.

In response to the Snowden leaks, it appears the Russian hardware/software purchasers are stepping up their due diligence efforts. This comes at a time when the Russian government is suspected of hacking away at the American democratic process, as Reuters reports.

Russian authorities are asking Western tech companies to allow them to review source code for security products such as firewalls, anti-virus applications and software containing encryption before permitting the products to be imported and sold in the country. The requests, which have increased since 2014, are ostensibly done to ensure foreign spy agencies have not hidden any "backdoors" that would allow them to burrow into Russian systems.

According to the article, multiple US officials and company executives are tracing the uptick in review demands to a downturn in US-Russian relations following Russia's 2014 annexation of Crimea. But the NSA's hardware operations were exposed in mid-2014, so it's hard to believe the Snowden effect isn't in play.

[Some] reviews are… conducted by the Federal Service for Technical and Export Control (FSTEC), a Russian defense agency tasked with countering cyber espionage and protecting state secrets. Records published by FSTEC and reviewed by Reuters show that from 1996 to 2013, it conducted source code reviews as part of approvals for 13 technology products from Western companies. In the past three years alone it carried out 28 reviews.

Since these companies aren't willing to give up their share of an $18.4 billion market, compromises are being made. Examinations of code are being done in "clean rooms," with conditions somewhat controlled by the companies being vetted. But this isn't always the case. Nor are these precautions necessarily enough to prevent those doing the vetting -- some linked to the Russian government -- from finding undiscovered security holes and flaws. The vetting may help keep Russian government agencies and private companies from being spied on by the US, but it's not going to do much to keep the Russian government from spying on Russian companies and Russian computer users.

So far, only one company has publicly announced its refusal to submit its software for vetting. Symantec has rejected testing by Echelon, a Moscow-based lab with some tenuous ties to the Russian military.

But for Symantec, the lab "didn't meet our bar" for independence, said spokeswoman Kristen Batch.

“In the case of Russia, we decided the protection of our customer base through the deployment of uncompromised security products was more important than pursuing an increase in market share in Russia,” said Batch, who added that the company did not believe Russia had tried to hack into its products.

The company also provides testing for the Russian Ministry of Defense and multiple law enforcement agencies. Echelon claims it's wholly independent from the Russian government, but those assertions haven't been enough to overcome Symantec's objections. Other companies (the article lists HP and IBM) have allowed their products to be tested by Echelon, but neither were willing to comment on this story.

The Russians are checking for US backdoors while potentially seeking to install their own. US companies are given the choice of possibly aiding in Russian domestic surveillance or being locked out of the market. Any lost sales here can at least be partially chalked up to the Snowden leaks. If so, the fallout from the leaks is still causing harm to US companies, years down the road.

The Ninth Circuit Court of Appeals has no good news for the lying law enforcement officers who were hoping to walk off with $167,000 of someone else's money. Two years ago, the district court ruled in favor of Straughn Gorman, who was subjected to two lengthy traffic stops in less than an hour by officers hoping to help themselves to cash he was carrying in his RV.

After stopping Gorman for a non-violation (driving too slow in the left lane), State Trooper Greg Monroe spent roughly a half-hour trying to obtain consent to search Gorman's RV. His reasonable suspicion? Gorman's use of the word "chick" to describe the girlfriend he was driving to visit and the supposedly "rehearsed" aspects of his employment history. Trooper Monroe performed an extensive background check on Gorman while hoping to prolong the stop until a K-9 unit could be deployed, but even his non-routine call to an El Paso DEA records center failed to drag out the traffic stop long enough for it to arrive.

All Monroe knew when he finally let Gorman go is Gorman had at least $2,000 on him. Monroe wasn't going to let this money get away, so he called up another officer from another agency and "relayed his suspicions." He also told the other officer (Deputy Doug Fisher) to bring a drug-sniffing dog with him. Fisher wasn't assigned to patrol the highway Gorman was traveling on, but decided that would be the best use of his time.

Fisher pulled over Gorman after his tire touched the fog line a couple of times. Another records check was run, even though Fisher already knew what results to expect, thanks to Trooper Monroe's heads-up. The drug dog supposedly alerted near a right-rear compartment of the RV. Gorman gave the deputy permission to search that area, but that wasn't good enough for Fisher. Fisher said the alert gave him permission to search the entire RV. This resulted in the discovery of $167,000 in cash, which Fisher took. Gorman was (again) free to go. Gorman was never charged with any criminal act, much less given a citation for the supposed moving violations that predicated the two stops.

The government appealed the lower court's decision, which gave Gorman back his $167,000 plus legal fees. It raised a number of defenses for its actions (which included the state's attorney omitting several facts about the two searches from its affidavits), but the Appeals Court is no more receptive of this deception and deceit than the lower court. From the decision [PDF]:

We hold that the search of Gorman’s vehicle following the coordinated traffic stops violated the Constitution and affirm the district court’s order granting Gorman’s motion to suppress. Gorman’s first roadside detention was unreasonably prolonged in violation of the Fourth Amendment. The dog sniff and the search of Gorman’s vehicle, in turn, followed directly in an unbroken causal chain of events from that constitutional violation. As a result, the seized currency is the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

[...]

The coordinated action at issue in Gorman’s case offers a prime illustration of the value of the “fruit of the poisonous tree” analysis. The analysis allows us to see the officers’ conduct in Gorman’s case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution’s requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops.

This won't be the only time officers behave this way. The Supreme Court's Rodriguez decision stated traffic stops are over once the "objective is complete." This forces officers to be a bit more creative if they're engaged in fishing expeditions without reasonable suspicion to extend the stop. One "solution" is shown above: have a second law enforcement officer initiate a stop to prolong the roadside investigation without triggering the protections of Rodriguez. Another "solution" is to have K-9 units perform stops or be in close proximity, thus lowering the chances of a court finding the stop to be "prolonged."

Both of these solutions are violations of Rodriguez, even if some courts will award the government points for effort. Fortunately, there are a few courts adhering to the intent of the decision: it's not the length of the Fourth Amendment violation, it's the violation itself.

Unfortunately, anything cash-related tends to make officers bypass their better judgment and push the edge of the Fourth Amendment envelope. The good news -- at least for Straugh Gorman -- is he's getting all of his cash back, plus legal fees. That it took more than two years for this to happen is unfortunate, but to be expected -- especially in a legal system that's stacked against victims of civil asset forfeiture.

As we reported last month, CDN provider Cloudflare has decided to hit back against patent troll Blackbird Technologies with an aggressive strategy. Leading this charge is Doug Kramer, Cloudflare's General Counsel, who joins us this week to discuss the current situation with Blackbird and the broader patent landscape.

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The ACLU is celebrating twenty years of making the internet better. On June 26th, 1997, the ACLU prevailed in Reno v. ACLU, with the Supreme Court striking down the anti-indecency portions of the 1996 Communications Decency Act (CDA).

As can be gathered by the law's name, it was written from a position of morality and panic -- the fear that the internet's connectivity would drown the nation's youth in easily-accessible porn. And yet, the law survives today as one of the most important factors in the internet's speedy growth, thanks to Section 230, which prevents service providers and social media platforms from being held civilly responsible for users' posts and actions.

But it might not have been that way. In 1996, the ACLU didn't even have a website of its own and most legislators had nothing more than bill sponsors' parades of horribles to go on. So, for the children, the CDA criminalized "obscene or indecent" material if it could be viewed by minors.

It was another case of legislators "knowing" what was indecent when they saw it. But even under that wholly subjective standard, the government spent most of its time shrugging.

During the various internet censorship cases the ACLU brought, we asked the government to identify speech in each category, and they were largely unable to do so. For example, they said that an online photo on Playboy’s website of a topless woman was not harmful to minors, but a virtually identical photo on Penthouse’s website was.

The ACLU's website was born from this legal battle. In order to show standing, the ACLU had to publish something the government might consider "indecent." It chose a Supreme Court decision declaring George Carlin's famous "Seven Words You Can't Say on TV" monologue "indecent." The entire monologue was included in the decision's appendix. The ACLU posted the decision and asked readers to guess which words the Supreme Court had found indecent. Obviously, it ended up with far more than seven words, which was enough to give it standing to challenge the CDA provision.

The plan worked. The ACLU took its challenge all the way to the Supreme Court and won. If it hadn't, the internet would be as boring and lifeless as the blandest of network TV offerings. That's the standard legislators were hoping to apply to the world's greatest communication platform: the same rules the FCC applies to broadcast TV. The Supreme Court struck down this damaging provision, recognizing the enormous potential of the web and the threat posed to it by "think of the children" legislation.

The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

The ACLU's site has a long interview with Chris Hansen, who led the ACLU's litigation. It's well worth reading, especially considering what the web might have become if no one had stepped up to defend "indecent" speech.

We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."

But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.

The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?

Although the United States has consistently interpreted section 1201 as creating a cause of action separate and independent from copyright infringement, courts construing the statute to date have divided over its relationship to the traditional rights of copyright owners. There currently is a circuit split as to whether a violation of the access‐control provisions under section 1201(a) requires a “nexus” to infringement—i.e., that the circumvention be done for the purpose of, or otherwise relate to, infringing an exclusive right under section 106 of the Copyright Act. This issue has particular significance in the context of copyrighted computer programs embedded in everyday consumer products.

In 2004, the Federal Circuit held in Chamberlain Group, Inc. v. Skylink Technologies, Inc. that there must be a “reasonable relationship” between the access gained by the circumvention and the protections conferred by section 106. Chamberlain’s garage door openers contained copyrighted software controlling operation of the motor. The software included a “rolling code,” which prevented the system from activating unless it received a signal from an authorized transmitter. Chamberlain alleged that Skylink’s manufacture and sale of “universal transmitters,” which circumvented the rolling code and accessed the copyrighted software, violated the anti‐trafficking provisions of section 1201(a)(2). The court, however, rejected that claim, holding that section 1201 did not create a new property right, but rather, “introduce[d] new grounds for liability in the context of the unauthorized access of copyrighted material.” The court further stated that “circumvention is not a new form of infringement but rather a new violation prohibiting actions or products that facilitate infringement.” The court also expressed policy concerns, including the view that without an infringement nexus requirement, section 1201(a) would result in anticompetitive conduct unrelated to copyright concerns. The court ultimately held that the Copyright Act granted consumers “the right to use the copy of Chamberlain’s embedded software that they purchased” and, therefore, in the absence of copyright infringement or facilitating copyright infringement, the defendant could not be liable for a section 1201(a)(2) trafficking violation.

In 2010, the Fifth Circuit in MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc., relied on Chamberlain to conclude that “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” The United States, however, urged rehearing on the ground that that construction was “inconsistent with the text, structure, and legislative history of the DMCA.” Such a reading, the United States argued, “threatens to frustrate Congress’s purpose in section 1201(a)(1), which was to provide a federal prohibition against bypassing passwords, encryption, and other technologies that regulate access to a copyrighted work in circumstances in which the copyright owner would not otherwise have a remedy under the Copyright Act.” The court subsequently withdrew its opinion and substituted an opinion omitting the challenged portion of the original.

Later that year, the Ninth Circuit expressly declined to follow Chamberlain and instead rejected a nexus requirement as “contrary to the plain language of the statute.” In MDY Industries, LLC v. Blizzard Entertainment, Inc., the court held MDY liable under section 1201(a)(2) for trafficking in technology in the form of a self‐playing bot, which was designed to circumvent a technological control on a video game sold by Blizzard. In rejecting the reasoning of Chamberlain, the Ninth Circuit looked to both the statutory text and its legislative history. Among other textual considerations, the court noted that section 1201(a) refers to technological measures protecting access to “a work protected under this title,” while section 1201(b) refers to measures protecting “a right of a copyright owner under this title.” The court read this distinction to indicate that Congress intended section 1201(a) to “extend[] a new form of protection, i.e., the right to prevent circumvention of access controls, broadly to . . . copyrighted works.” Section 1201(b), meanwhile, was intended “to reinforce copyright owners’ traditional exclusive rights under § 106 by granting them an additional cause of action against those who traffic in circumventing devices that facilitate infringement.”

So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.

So, of course, that's not at all what the Copyright Office decided. Instead, it argues that there shouldn't be such a "nexus" requirement, because it might upset Hollywood to have less control. I mean, that's not the phrase it actually uses, but that's exactly what it's saying here:

The Copyright Office shares the concern that section 1201(a)’s protections for access controls have the potential to implicate activities far outside the traditional scope of copyright law. The Office does not, however, believe enacting an infringement nexus requirement to be advisable, as it could severely weaken the right of copyright owners to exercise meaningful control over the terms of access to their works online—a right that both Congress and the Executive Branch have properly recognized as essential to the development of the digital marketplace for creative content

If you don't live in the copyright world, this statement may not seem like a big deal, but it's actually a massive and hugely troubling admission. It's the Copyright Office saying that the point of anti-circumvention should be about giving copyright holders more control over digital marketplaces and not about preventing infringement. Of course, that's not what Hollywood has always claimed in the past. They always insist the reason they need anti-circumvention provisions all over the place is to stop infringement. But everyone has always assumed it's truly because they want more control and leverage over digital marketplaces. And here you have the Copyright Office admitting, right up front, that, sure, these provisions are about giving Hollywood extra control and not about stopping infringement.

The Copyright Office tries to justify this by arguing that (for example) bypassing the password protection on a Netflix or Spotify account might violate 1201, but wouldn't infringe on an underlying Section 106 right -- and thus 1201 without a nexus requirement is necessary to enable more Netflix or Spotify like markets:

In particular, Congress sought to facilitate the development of online content delivery platforms in which the consumer pays for access to copyrighted material rather than for possession of a copy. Section 1201(a) reflects Congress’ understanding that such models will succeed only if copyright owners have the legal right to prohibit persons from evading electronic paywalls or other technical measures used to limit access to users who satisfy the rightsholder’s specified terms.

But... this is not a copyright concern. That's a business model concern. If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law.

If Congress truly wants to protect Hollywood from people sharing their Netflix passwords, there are other ways to do it without trying to loop it into copyright law -- and 1201 is a part of copyright law. It shouldn't then be abused for completely non-copyright purposes. Having an underlying nexus to copyright is the only sane way for the law to actually be related to the fundamental rights under copyright law. But here, the Copyright Office is arguing that Hollywood should get non-copyright rights of control over digital marketplaces, just because it thinks that's good for Hollywood. And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.

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Stories about both the abuse of the DMCA process and the peril YouTubers regularly find themselves subject to by way of intellectual property laws are both legion, but to see the truely egregious nature of the abuse of this sort of thing, it takes a story about them intersecting. We appear to have such a story on our hands in the form of a music composer hired to work on a video game that then began sending DMCA notices to YouTubers over a contractual dispute with the game publisher. This story weaves a strange path, so let's dig in.

Alex Mauer is a digital composer. She was hired to do contract work by Imagos Softworks, the developers of Starr Mazer: DSP. That game had been available for early access on Steam, but is still down at the time of this writing. The reason for that is that Mauer sent Steam a DMCA notice for the game, claiming that it used her music without proper payment. Mauer and Imagos are in the middle of a fairly heated contract dispute, one which Imagos has been taking public with explanations of what happened and why the claim is not true.

When you have dug into enough of these sorts of things, you begin to have a good sense for what's going on based on everyone's responses. Imagos' response is solely from its perspective, so it is not to be taken as the final word on the matter, but claims this detailed tend to be more common from those on the right side of things. Despite having been paid roughly $35,000 for her work on the game as a contract for hire, Mauer is currently claiming that Imagos owes her another $10,000. Even if that were true, the rights for the music in the contract were transferred to Imagos, making the DMCA claim against the game inappropriate. Through it all, Imagos claims to have attempted to resolve this with Mauer on several occasions only to be refused, while also going so far as to strip her music from the game and replacing it with temporary placeholder music.

But Mauer is apparently still unsatisfied. As I mentioned above, you can often get a sense of which side of an issue is on the firmest ground by how they behave. Well, Mauer's behavior in the past week has amounted to levying DMCA claims against every YouTuber showing off Starr Mazer: DSP footage that included her music. Even with the obvious Fair Use defense these YouTubers would have, that isn't even the most infuriating aspect of the tactic. No, that title belongs to Mauer suggesting to the YouTubers that she was launching the DMCA claims to raise awareness of the contract dispute and would rescind them if the YouTubers would give some hell to Imagos instead.

According to Ms. Mauer, Imagos Softworks owes her US$ 10,000 “for unpaid music work” (on Starr Mazer: DSP) and she is trying to use the DMCA strikes as a way to generate awareness about her situation. Sadly, this isn’t the intended purpose of the copyright strikes system, and innocent content creators are being punished when their only involvement in the matter has been that they published videos covering the independent roguelike shooter.

Well-known YouTuber SidAlpha even reached out to Mauer on behalf of his smaller peers to try to figure out what the hell was going on and received the following reply.

The fact that TemmieNeko is directing her complaints to me instead of the developer is a problem. This seems to be the general response of those who were hit with DMCA strikes. I did suggest to some who complained to me that I would reverse their DMCA strikes if they were willing to redirect their complaints to the developer/complaints about the developer. No one was willing to do so, and I no longer want to offer anyone the possibility of having their DMCA strikes reversed. Thank you.

It's worth repeating that none of this serves the purpose of the DMCA. In fact, there is a ton of potential harm to the YouTubers in question, who, in receiving these abusive DMCA notices, are at risk of having their channels pulled by YouTube. They can file a counter-claim, and should be successful with them, but there is still a risk. There is also risk for Mauer herself, as the DMCA process does have a perjury provision for fraudulent claims.

SidAlpha also explained that once the affected YouTubers process a successful counterclaim, they would be able to file a civic lawsuit against Mauer. This is because filing a fraudulent DMCA claim is considered perjury and she would be tried in the state the Youtubers live in. In addition, because the videos are transformative, they are protected by the Fair Use Doctrine which renders the DMCA strike spurious. Also, she doesn’t own the music in the first place because it was made as part of a for-hire contract with Imagos. Imagos owns all content related to Starr Mazer and Starr Mazer: DSP.

Mauer has since gone on to send out DMCA notices for a couple other games in which her music is featured, including one put out by Adult Swim. As part of this, Mauer has gone so far as to send a DMCA notice to Turner Broadcasting. Meanwhile, she put the music she created for Imagos under her contract on her own website, selling it as part of an album for $1,000.

This is as clear an abuse of the DMCA process as I've seen to date and there is no excuse for imperiling innocent YouTubers over a contract dispute with a game publisher. If ever there were a case begging for punishment over abuse of the DMCA system, this is certainly it.

Last year, the cable industry quietly launched one of the most misleading and successful lobbying efforts in the industry's history. The target? A plan concocted by the former FCC that would have let customers watch cable programming without having to rent a cable box or use a CableCARD. Given the industry makes $21 billion annually in rental fees off of this entrenched hardware monopoly, the industry got right to work with an absolute wave of disinformation, claiming that the FCC's plan would confuse customers, increase piracy, and was (with a little help from Jesse Jackson) somehow even racist (seriously).

At one point, the industry even managed to grab the help of the US Copyright Office, which falsely claimed that more cable box competition would somehow violate copyright. Of course the plan had nothing to do with copyright, and everything to do with control, exemplifying once again that for the US Copyright Office, public welfare is often a distant afterthought.

As part of this stage show, the cable industry also created a group specifically tasked with attacking the proposal. Dubbed the Future of TV Coalition, the group set forth to not only attack the FCC's plan, but to propose its own counter proposal it claimed made any cable box reform efforts at the FCC unnecessary. Dubbed the "ditch the box" proposal, the cable industry and the Future of TV Coalition breathlessly stated the industry (pdf) was already cooking up ways to help consumers avoid rental fees have greater choice, and that these efforts were already well underway:

"This new “Ditch the Box” approach calls for binding, enforceable obligations for major TV providers to allow customers to ditch their set-top boxes and access live and on demand programming via boxless apps compatible with a wide range of retail devices, including smart TVs, game consoles, streaming devices, laptops, tablets, phones, and more...Providers will have two years to fully implement the new requirements – and many are already racing to do so sooner."

That was then, this is now. Shortly after Trump's election win, the new Ajit Pai led FCC quickly moved to scuttle the plan. And not too surprisingly, the cable industry's counter plan to make lives better for consumers never actually materialized, and appears to have been mothballed:

"The Future of TV Coalition has gone silent — it last tweeted Nov. 28 — the cable industry’s trade group NCTA hasn’t had much to say about it either. NCTA spokesman Brian Dietz wrote in an e-mail that Ditch the Box was pitched as “an “alternative” to the Wheeler’s original proposal. Without the FCC’s acceptance of Ditch the Box, that plan got ditched."

So without somebody actively pressuring an uncompetitive sector to stop being uncompetitive, they continue to be uncompetitive. Who could have possibly predicted that? Of course the cable industry continues to pay empty lip service to the idea of choice and freedom, all the while continuing efforts to make actual consumer choice on this front as difficult and expensive as ever (see Comcast's decision to charge users a completely unnecessary fee just to use a Roku as a cable box, or cross-industry efforts to use unnecessary broadband usage caps and overage fees to drive up the cost of streaming via their competitors).

The cable industry falsely believes this is all an ingenious plan to keep its traditional cable TV cash cow alive indefinitely. But as the continued and accelerating rate of TV cord cutting illustrates, the cable sector isn't going to be nearly as impervious to market evolution as it likes to believe.

The Ninth Circuit Court of Appeals has upheld Matthew Keys' conviction and sentence of two years for a 40-minute web defacement he didn't actually perform himself. That works out to basically 18 days for every minute of mild disruption the LA Times suffered, as it (very briefly) suffered through a headline changed to read "Pressure builds in House to elect CHIPPY 1337."

Prosecutors actually wanted five years for this momentary mild hacking, but still managed to end up with two years after the LA Times submitted enough paperwork to make it appear as though this 40-minute malicious hiccup racked up $1 million in CFAA damages.

The appeals court isn't there to question the accuracy of the LA Times' bill of lading, but it does use the inflated figure to affirm the part of the sentencing affected by the claimed damages. From the unpublished opinion [PDF]:

Concerning employee response time, the district court did not abuse its discretion by relying on loss estimates based on employees’ testimonies or on the worksheet prepared by a Fox 40 executive. In response to Keys’s challenge to inconsistencies in the employee salary evidence, the district court appropriately re-reviewed the trial testimony and considered the amount in light of national statistics on the value of non-liquid employee benefits.

The government presented evidence that nearly all of the 20,000 Fox 40 Rewards Program members cancelled their participation in response to Keys’s conduct. Starting essentially from square one, the database took three years to rebuild. The district court did not abuse its discretion in relying on the Fox 40 executive’s representation that this process cost $200,000. It was appropriate for the district court to order restitution in the amount it cost Fox 40 to replace the member database, as it would be difficult to determine the fair market value of such an asset.

Basically, this database could have been worth any amount, so why not the $200k the LA Times claims it's worth. That adds to the restitution amount owed by Keys and also plays a small part in the sentencing. But in total, this is overkill for a 40-minute web defacement, especially one performed by someone else using Keys' login credentials. The move may have been petty and amateurish but it's extremely difficult to believe the momentary elevation of Chippy 1337 to the front page of the LA Times' website warrants a two-year sentence and thousands of dollars in fines.

But it appears the DOJ is happy with this outcome. And having completed its prosecution of Keys, it's presumably performing an OJ Simpson-style hunt for the person who actually performed the defacement.