This week, our first place winner on the insightful side is Thad with a short first amendment refresher regarding PEN America's lawsuit against Trump:

Reminder for the slow class:

The First Amendment restricts the government from punishing speech.

The President is part of the government.

The President is not allowed to punish people or organizations for saying things he doesn't like.

This is completely different from Techdirt, or Twitter, or Facebook, or Google, or any other private entity, punishing people or organizations for saying things they don't like. That's legal. Because those are not government organizations.

(Pedants who think they are being clever may note that the First Amendment only mentions Congress; it doesn't say anything about the President. Well, here's the thing about that: if Congress is not allowed to make a law giving the President the power to punish people for speech he doesn't like, then the President doesn't have that power.)

In second place, we've got an anonymous comment musing about what could be a significant factor in lots of police abuse and justice system failures:

I believe a part of this attitude is caused by people believing in the Hollywood version of law enforcement. In which the Hero Cops are never wrong and a trial is just a formality in which the Bad Guy only ever gets acquitted if his Sleazy Lawyer gets him off on some technicality.

That was in reference to an accidental admission by NYC prosecutors that they abuse the bail system to punish innocent people, and for editor's choice we've got two more thoughts on that from some regular commenters. First, it's That One Guy with an additional question:

'They're a serious threat to the public... right until they pay'

In addition to what they inadvertently admitted, that they are deliberately(and illegally) setting bail too high in order to keep people in jail until trial, the argument that posting bail is a threat to public safety merely brings up another question:

If someone is an actual danger to the public, why would there be a bail amount set at all? If someone is suspected or assault and/or murder can they walk until trial so long as they have enough money?

If someone is a demonstrable threat to those around them the simple act of paying does not magically make them not a threat, so if there is real evidence that someone poses a threat to the public why would any level of bail be set, rather than a case made to the judge that the accused presents a threat to those around them and as such it would be much safer to have them behind bars until trial.

This is of course a rhetorical question, as it's pretty clear that they don't think the people are actually threats, the point is instead that even assuming they were being honest they'd still have a hole large enough to drive a semi through in their argument.

Next, it's That Anonymous Coward expanding on the impact this has:

One of the other reasons to keep them locked up is so they take the plea. Locked up you need to get someone to cover rent, watch kids, feed pets, beg your boss to not fire you... gee all of those pressures seem like a reason innocent people might take a plea to have hope of salvaging their life before it gets destroyed waiting for their day in court where they roll the dice with an underpaid overworked public defender who might have all of 2 minutes to look at your case & no time or budget to actually put on a defense.

The punishment starts with the accusation and gets multiplied at every step to keep the system churning quickly. There can be video of you 5 states away, but that won't matter until you get a day in court and that could be months away. You get a hearty GTFO, dumped on the street & have to find out what happened to your stuff & try to rebuild your life.

What people think the justice system is & how it works is so very different than the reality. Some people are mad their tax dollars give the accused a public defender, because they wouldn't be in jail if they were innocent (because the 15 times I heard about people released from jail after being found innocent were flukes & that never happens now).

Over on the funny side, our first place winner is murgatroyd with a reaction to the appeals court ruling saying that Georgia's laws are not protected by copyright:

Oh, great. Because of this, Georgia no longer has any incentive to create new laws! I hope Mr. Malamud is happy.

In second place, we've got a quick anonymous response to another commenter's utterly baffling rant about "open source" and China:

Let’s add open source to the veritable dictionary of words you don’t understand. Along with veritable, dictionary, and words.

For editor's choice, we start out with a reaction from Vidiot to the tiny class action settlement payout for Vizio customers:

$13? That's one of the biggest class action awards I've seen. Still holding a check from TD Bank that's supposed to make amends for lobby-located coin counting machines that chronically undercounted the contents of my pickle jar full of pocket change. I haven't needed the 56 cents yet.

Finally, we head back to last week's comment post, where I noted that stderric's winning comment was passing along a John Oliver joke. He defended himself, asserting:

Think what you will, but I consider "Humor Curator" to be an honorable enough pursuit :)

(As the person putting this post together right now, I agree!)

That's all for this week, folks!

Five Years Ago

There was plenty of NSA apologia again this week in 2013. Keith Alexander was claiming that he was protecting civil liberties by violating them and playing the fear card by claiming people will die due to the Snowden leaks, while the lawyer who helped give legal cover to Bush's warrantless wiretapping was claiming everyone will grow to love the intrusive NSA, and Dianne Feinstein was playing the 9/11 card (and being debunked by the ACLU).

Meanwhile, the latest information from the leaks revealed that the NSA was collecting email contact lists and instant messaging friend lists overseas with no oversight, that the agency was involved in the drone strike program, and of course that the agency was in fact drowning in a glut of data.

Ten Years Ago

This week in 2008, the president finally signed the ProIP bill and created America's copyright czar position. We took a closer look at the MPAA's lawsuit against RealNetworks (and how it was all about controlling innovation), while the RIAA was appealing the mistrial ruling in the Jammie Thomas trial, and a German court was finding Google Images thumbnails to be a copyright violation. Unexpectedly, the McCain campaign sent a letter to YouTube urging them to consider and protect fair use when processing DMCA requests, and YouTube offered up the excellent response that they can't give the campaign special treatment, but they hope McCain will fix the law. Meanwhile, Larry Lessig was giving his own impassioned defense of fair use and remix culture.

Fifteen Years Ago

This week in 2003, the EFF found another person who was wrongly accused of file-sharing and sued by the RIAA (they wouldn't be the last), just as the RIAA was commencing round two of its shakedown scheme by, as promised, offering people a chance to pay up before being sued (how nice of them). We also took a closer look at the RIAA's lawsuits against Grokster and Morpheus, and how their true ambitious goal was to overturn the Betamax precedent that makes video tape machines legal. Also this week, Brewster Kahle was fighting against the DMCA in an attempt to preserve old software.

Meanwhile, lots of companies and industries were really struggling to adapt. Some people were discussing possible futures for usual-consumer-electronics-leader Sony after Apple beat it to the punch on smartphones, print publishers were basically dragging their heels about this whole internet thing, and Polaroid reached the highly questionable conclusion that its future was in digital photo kiosks.

A few weeks ago, Bloomberg published a giant story claiming that Chinese spies did a somewhat daring supply chain hack on American big tech firms. The gist of the story was that servers from Super Micro had hidden chips that somehow were then used by Apple and Amazon (not to mention the US government), that allowed someone in China to access certain data. The story was a blockbuster that got everyone talking. But, almost as soon as it came out, a bunch of people started raising questions about the story. While the Bloomberg reporters claimed over a dozen sources, both Apple and Amazon came out with incredibly strong denials. Way stronger than is common in these situations. And while I know some cynical people insist that companies will lie about this stuff all the time, that is not actually true. Some companies may misrepresent things, or try to play down stories, but outright fabrication is not at all common (and the consequences of a company doing it would be severe). And here, both Amazon and Apple's denials were so clear, so specific and so adamant that it raised serious questions about the reporting.

Since there was so much confusion over it all, we held off on writing about it, figuring more information would come out in the days and weeks after the initial story. And so far, nearly all of the "additional info" has only served to raise significantly more questions about Bloomberg's reporting. Various government and intelligence agencies all claimed they had no evidence to support these claims. Again, some will argue that they are lying, and (again) while those agencies may have a history of misrepresenting things, the denials here were clear and unequivocal. The UK's National Cyber Security Centre (a part of GCHQ) said they completely supported Apple and Amazon that no such attack occurred. The US Department of Homeland Security said the same thing. Dan Coats, the US Director of National Intelligence said the US intelligence community has seen no evidence of such an attack, which certainly undermines the Bloomberg story. Some of the folks quoted in the Bloomberg article even questioned the accuracy of the article with one going so far as to say the article that he is named in... "didn't make sense."

Also, as reporter Nicole Perlroth noted, one of the reporters on the Bloomberg story -- Michael Riley -- had also done a story back in 2014 making bold claims that the NSA had exploited the Heartbleed bug, and multiple other reports ripped that story to shreds, with multiple people denying it and no one else confirming it.

Now, with this story, Apple has done something it's never done before: asked Bloomberg for a retraction of the article. That's a pretty big move -- and Bloomberg says it still stands by its reporting (as it did with the Heartbleed story).

However, at this point, Bloomberg has whittled away whatever benefit of the doubt there was left and set fire to the scraps. It's difficult to believe that Bloomberg's story was accurate, and the company and its reporters owe everyone an explanation -- or at least some additional evidence to support the reporting. I don't doubt that there is a kernel of truth in the story -- but given the vehement and thorough response from everyone, it certainly seems likely that the reporters on the Bloomberg piece misunderstood something big, leading to misreporting of things in a way that leads to a very inaccurate picture of what's going on. Bloomberg should, at the very least, appoint someone else to go through the work put in by reporters Michael Riley and Jordan Robertson, and explore whether or not the story really is accurate, and why it is that basically everyone is saying it's not.

Reporters can, and do, make mistakes. How they respond to such mistakes is the real marker of the ethics they and the organizations they work for hold. Considering Bloomberg stood by that Heartbleed story, perhaps we shouldn't expect such a reckoning at the publication -- but, at the very least, it's going to lead plenty of people to write off Bloomberg as a credible source on issues like these, and that's unfortunate, given that there are some really big and important stories having to do with computer security right now. Having one major publication show itself to be untrustworthy in its coverage would be very bad.

Whistleblowers play a vital role in releasing information the powerful would rather keep secret. But the former pay a high price for their bravery, as the experiences of recent whistleblowers such as Chelsea Manning and Edward Snowden make plain. Another whistleblower whose life has become very difficult after leaking is Rudolf Elmer. He has a Web site about his actions and his subsequent problems, but it's not the easiest to navigate. Here's Wikipedia's summary of who he is and what he did:

In 2008, Elmer illegally disclosed confidential bank documents to WikiLeaks detailing the activities of [the Swiss multinational private bank] Julius Bär in the Cayman Islands and its role in alleged tax evasion. In January 2011, he was convicted in Switzerland of breaching secrecy laws and other offenses. He was rearrested immediately thereafter for having again distributed illegally obtained data to WikiLeaks. Julius Bär as well as select Swiss and German newspapers alleges that Elmer has doctored evidence to suggest the bank engaged in tax evasion.

According to a new article about him in the Economist, Elmer has undergone no less than 48 prosecutorial interrogations, spent six months in solitary confinement and faced 70 court rulings. The good news is that he has finally won an important court case at Switzerland's Supreme Court. The court ruled that since Elmer was employed by the Cayman Islands affiliate of the Zurich-based Julius Bär bank, he was not bound by Switzerland's strict secrecy laws when he passed information to WikiLeaks. Here's why that is a big deal, and not just for Elmer:

The ruling matters because Swiss banks are among the world's most international. They employ thousands of private bankers offshore, and many more in outsourcing operations in countries like India and Poland. Many foreign employees are involved in creating structures comprising overseas companies and trusts linked to a Swiss bank account. Thanks to the ruling, as long as their employment contract is local they can now leak information on suspected tax evasion or other shenanigans without fear of falling under Switzerland's draconian secrecy law, which imposes jail terms of up to five years on whistleblowers.

Sadly, Elmer's problems aren't over. According to the Economist article, he was found guilty of forging a letter and making a threat, and has been ordered to pay SFr320,000 ($325,000) towards the costs of the case. He maintains this was imposed on him as "revenge" for prevailing in the main part of his case. Certainly, in the light of the Supreme Court's ruling in favor of whistleblowing, he is unlikely to have won any new friends in the world of Swiss banking.

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

Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia's laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let's dig in:

For the past few years, we've been covering the fairly insane situation down in Georgia, where they insist that the state's annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia's laws are not covered by copyright. But here's where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to "annotate" the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only "official" version of Georgia's state laws is in the "annotated" version. If you want to look up the official law of Georgia you are sent to the "Official Code of Georgia Annotated" (OCGA), and it's hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend "the Official Code of Georgia Annotated," which certainly suggests that the OCGA -- all of it -- is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it's also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court's analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

To navigate the ambiguities surrounding how to characterize this work, we resort to first principles. Because our ultimate inquiry is whether a work is authored by the People, meaning whether it represents an articulation of the sovereign will, our analysis is guided by a consideration of those characteristics that are the hallmarks of law. In particular, we rely on the identity of the public officials who created the work, the authoritativeness of the work, and the process by which the work was created. These are critical markers. Where all three point in the direction that a work was made in the exercise of sovereign power -- which is to say where the official who created the work is entrusted with delegated sovereign authority, where the work carries authoritative weight, and where the work was created through the procedural channels in which sovereign power ordinarily flows -- it follows that the work would be attributable to the constructive authorship of the People, and therefore uncopyrightable.

The court admits that there are strong arguments in both directions on this one, but:

... at the end of the day, we conclude that the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.

Because of this, the court doesn't even need to do a fair use analysis. Since there's no copyright in the OCGA, the fair use question doesn't even matter, and Malamud (and anyone else) is free to post and access the full OCGA.

There's a lot more details in the opinion, but the above quotes summarize the point quite nicely. Congrats to Carl Malamud, who has suffered quite a bit in facing this fairly insane lawsuit. As we noted early on, even if the state felt that it's copyright was valid (which was still a big question) the fact that it would seek to sue a small nonprofit for daring to make their own laws accessible was shameful and disgusting.

We'll close out this post with the concluding paragraphs of the opinion as well, which set out, once again, why the law (including annotations) is public domain and should be freely accessible to all:

The OCGA annotations are created by Georgia’s legislative body, which has been entrusted with exercising sovereign power on behalf of the people of Georgia. While the annotations do not carry the force of law in the way that statutes or judicial opinions do, they are expressly given legal significance so that, while not “law,” the annotations undeniably are authoritative sources on the meaning of Georgia statutes. The legislature has stamped them “official” and has chosen to make them an integral part of the official codification of Georgia’s laws. By wrapping the annotations and the statutory text into a single unified edict, the Georgia General Assembly has made the connection between the two inextricable and, thereby, ensured that obtaining a full understanding of the laws of Georgia requires having unfettered access to the annotations. Finally, the General Assembly’s annual adoption of the annotations as part of the laws of Georgia is effected by the legislative process -- namely bicameralism and presentment -- that is ordinarily reserved for the exercise of sovereign power.

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

As a result, no valid copyright can subsist in these works.

This ruling also strengthens Malamud's arguments in some of his other legal fights, concerning the concept of "incorporation by reference," where laws reference this or that standard created by 3rd parties, and require various entities to abide by those standards. Malamud has long argued that if the law incorporates those standards, then those standards must be freely accessible for the same reason -- and has been fighting that issue in a different court case. Reading this ruling certainly gives weight to that argument as well (though that one is in a different circuit).

It's no secret that the Vietnamese government is no fan of the open internet. All the way back in 2002 we wrote about the government requiring people to register just to create a website. That same year we were writing about people being arrested for posting criticism of the government. In 2008, we wrote about the Vietnamese government banning "subversive" blogs as well. With the rise of social media, Vietnam has shifted its focus there. In 2013, it banned news reporting on social media, saying it should be for personal use only. In 2014, we wrote about how the government was abusing Facebook's own reporting tools to shut down dissenters from using the site. And at the beginning of this year, we wrote about how the government now employed around 10,000 people whose only job was to monitor the internet for dissent.

And now it's going to get even worse -- to a degree that might even lead some of the big internet companies to leave Vietnam entirely. And we have the NSA (partially) to blame. Ever since the revelation of the Snowden documents, describing how the NSA was getting access to all sorts of data and metadata on foreigners by compelling various private companies to cough up their data, there's been a big push among some for data localization. Some of that push has come from privacy activists themselves, arguing in other countries that their data shouldn't be allowed to go to the US where the NSA has so much access -- but much of it has simply been using the NSA revelations as a stalking horse to get what they want: which is the ability to snoop locally on all of that data. That's why countries like Russia has been a huge proponent of data localization.

And now we can add Vietnam to the list. Despite strong condemnation from the US (and US internet companies) it appears that Vietnam wants to require any internet company with Vietnamese users to host that data locally where the government and its thousands of content monitors can snoop on it:

The new draft decree requires companies providing a range of services, including email, social media, video, messaging, banking and e-commerce, to set up offices in Vietnam if they collect, analyze or process personal user data.

The companies would also be required to store a wide range of user data, ranging from financial records and biometric data to information on peoples’ ethnicity and political views, or strengths and interests inside Vietnam’s border.

Not surprisingly, the same law gives law enforcement much greater ability to demand data from these platforms, because of course it does. The Vietnamese officials pushing this plan say its necessary for "cybersecurity" which is utter nonsense.

This could be a real test for companies like Facebook and Google and there's a strong argument they (and others) should seriously consider simply shutting off access in that country, even as both sites are quite popular there. Giving in here will undoubtedly mean having to give in elsewhere, and literally supporting the suppression of political dissent.

The UK government is still polishing its porn filtering law. The latest updates to the law show there's been some effort put forth to make the law less stupid, but even these additions don't make the law (or its implementation) much better.

There are still threats of fines and other governmental pressure should sites fail to "voluntarily" adopt the measures recommended by the UK government when the law goes live next year. One noticeable change is that the responsibility of deciding what is or isn't porn will be placed in the hands of the UK's film classification board, the British Board of Film Classification. If it's anything like the MPAA, it won't necessarily know porn when it sees it, but it will know what it doesn't like and regulate along those lines.

The updated guidelines [PDF] try to blend suggestions and mandates into something cohesive and palatable, all while removing as much government accountability as possible. The updates recognize collecting personally-identifiable info on British porn filters creates a juicy target for malicious actors. It also notes this data collection must somehow comply with the UK's tangle of privacy laws, meaning companies should put some sort of protections in place, but not so much they undermine positive identifications.

The BBFC suggests a possible compromise: verification of age only and no retention of site access logs. But, like everything else, this too is only a suggestion. This means sites are free to gather and retain as much info as they'd like and potentially dodge privacy-related legal battles by pointing to the UK government's porn blockade demands.

In this ridiculous pile of "would you kindly (under possible penalty of law)?", one aspect of the porn filtering plans continues to stick out. And it promises to make the BBFC's job extremely difficult, if not completely impossible. One round of updates on and the UK government is still no closer to resolving the issue, as The Verge's James Vincent points out:

A final addition in the BBFC’s guidelines is a newly clarified exemption for any site where “pornographic material makes up less than a third of content.” So if a site is two-thirds safe for work, it won’t have to verify users’ ages. This means social media platforms like Twitter, Reddit, and Tumblr — which are home to a lot of pornographic material — will not be policed. (Sites that advertise pornography are not covered by this exemption.)

However, the current wording of the guidelines still leaves a lot of unanswered questions. For example, how exactly will regulators measure the ratio of SFW to NSFW content? “Are they going to measure this in URLs, number of files, pixels, or what?” asks [Open Rights Group director James] Killock.

Good question. And, at this point, one the BBFC can't answer. This will compound the problems plaguing any content filtering system: overblocking, underblocking, and easy circumvention. The filtering offered by ISPs has already dabbled in all three, and the law is still a few months away from its official debut.

The one thing the filtering law is almost guaranteed to accomplish is increase the marketshare of incumbents -- both in terms of ISPs and porn providers. One of the age verification methods being shopped around was created by the media company (MindGeek) that owns some of the largest porn sites in the world. If MindGeek's software becomes the de facto solution to verification problems, the company will be able to tie its competitors up with licensing agreements for years to come (and to collect data on competitors' users during the verification process).

The UK government is addressing a problem that cannot be completely solved by offering up a handful of half-assed suggestions backed by ethereal threats of punishment if the internet in general fails to comply. The embarrassment it's been throughout the course of its development is in no danger of redeeming itself in the future.

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As promised/threatened, the DHS is moving forward with expanded use of biometric scanning at airports, including facial recognition and fingerprint matches. What was touted as a way to combat international terrorism and illegal immigration will now include those on the home front, as the tech spreads to include US citizens on domestic flights. But the TSA doesn't see this as an unwanted incursion into the lives of innocent citizens. Instead, it pitches it as a useful tool to speed up security screening at TSA checkpoints.

TSA says that by moving toward facial recognition technology in a time where travel volume is rising, it’s hoping to reduce the need for physical documents like passports and paper tickets. Currently, TSA manually compares the passengers in front of them to their ID photos, but it believes an automated process that can match facial images to photos from passports and visa applications will be more accurate and efficient.

The TSA expects paying customers to foot the bill for the expansion -- the same citizens it's been selling civil liberties back to for years. From the TSA's "roadmap" for expanded biometric screening:

Currently, TSA and airline partners verify traveler identity primarily by processing biographic data and inspecting physical identity and travel documents. The use of biometric technology will simplify the passenger experience and increase efficiency and security effectiveness.

The roadmap focuses on four main goals: 1) partnering with U.S. Customs and Border Protection (CBP) on biometrics for international travelers; 2) using biometrics provided by TSA Pre✓® members to enhance the travel experience; 3) expanding biometrics to additional domestic travelers; and 4) developing the infrastructure for biometric technology. TSA is already carrying out these objectives through smart investments and collaborative partnerships.

Yes, the paying members of the TSA's Pre✓ program will be the first to "enhance" their "travel experience" by feeding their faces into a database the TSA controls, using tech prone to erroneous conclusions. Other travelers won't be able to opt out of biometric screening, however. They'll just be subject to the non-enhanced travel experience where TSA and CBP officers ask a long series of invasive questions and infer suspicious behavior on the part of travelers who bypass the biometric kiosks.

It's true that traveling in the US has always been a "papers, please" experience. But prior to the 9/11 attacks, this simply meant presenting a ticket before boarding. Now, it's everything about everybody, no matter how useless this information is 99.9% of the time. Rather than move towards smarter screening methods, the TSA has decided to subject everyone to the same level of screening with the same arbitrary rules stemming from airborne attacks the TSA failed to prevent.

The TSA pitches this as a paperless airport, but it's really just another way for the government to compile a massive database of identifying info and of citizens' movements. The DHS likes to talk about its 96% accuracy target, but has released no information about actual accuracy in test runs, so concerns about false positives/negatives aren't going away anytime soon.

The government has responded in the worst way to terrorist attacks in the US. It has made freedom of movement a hassle -- one that diminishes Constitutional protections and turns every traveler into a potential suspect.

As you probably have noticed, there's a growing tide of streaming video services popping up to feed users who want a cheaper, more flexible alternative to traditional cable. By and large this has been a very good thing. It's finally driving some competition for bumbling apathetic giants like Comcast, forcing them to at least make a feeble effort to improve customer service. It also reflects a belated admission by the broadcast industry that you need to compete with piracy (instead of say, suing the entire planet and hoping it goes away) by offering users access to cheaper, flexible viewing options.

But the gold rush into streaming has come with a few downsides. Studies have suggested that every broadcaster on the planet will likely have their own streaming service by 2022. In a bid to drive more subscribers to their service, said broadcasters are increasingly developing their own content, or striking their own content exclusivity deals, and then locking that content in an exclusivity silo. For example, if you want to watch Star Trek: Discovery, you need to shell out $6 a month for CBS All Access. Can't miss House of Cards? You'll need Netflix. Bosch? Amazon Prime. The Handmaid's Tale? Hulu.

Again, on its face this impulse makes perfect sense: you want the kind of content that drives users to your platform. And at first it wasn't all that noticeable, because there were only a handful of services. Even if you subscribed to four of them, you still probably were saving money over your traditional cable bill.

The problem is, as more and more companies jump into the streaming market, users are being forced to subscribe to an ocean of discordant services to get access for the content they're looking for. As users are forced to pony up more and more cash for more and more services, it's going to start defeating the purpose of ditching over-priced, traditional cable. But instead of going back to cable, back in March we noted how users are just as likely to consider piracy.

And of course that's already starting to happen, with BitTorrent usage seeing some modest but notable bumps, especially overseas. It's minor now, but if you've paid attention to several decades of piracy precedent, it's not hard to predict the outcome of this rush to cordon off everything into far too many exclusivity silos. Disney, for example, is preparing to pull all of its best content off of Netflix (Star Wars, Pixar, Marvel) and make it exclusive to its own streaming platform. In the wake of its acquisition of Time Warner, AT&T is contemplating doing the same thing with old episodes of shows like Friends. You may have noticed a trend:

"Before Netflix got into the Original series game, it made a name for itself by licensing content from other distributors like Warner Bros. TV, Paramount Television, and NBC Universal Television. Licensing deals are great for fans who don’t have cable or are looking to discover new series in full, but now that streaming is king, distributors and production companies have realized that they can make more money by consolidating their content on a single streaming service — hence why Disney, WarnerMedia, DC, and other media companies are creating their own platforms with original content."

You'd be pretty hard pressed to find many people in the streaming or broadcast sector who realize the pitfalls of this gold rush toward streaming exclusivity, even after all of the painful piracy and gatekeeper lessons learned thus far. After all, most industry executives are right that having must-watch exclusive content is necessary to drive subscriber adoption, and that developing original content in house is a better financial proposition than skyrocketing broadcast licensing costs. But few have paused, taken a step back, and considered how the rush to exclusivity at scale could come back to bite the sector at large.

That's thanks, in part, to the weird aversion among most journalists and analysts to even mention piracy in their reports or stories. Most reporters and analysts see even mentioning piracy as some kind of bizarre cardinal sin that implies they somehow advocate for the behavior. This tendency to ignore the elephant in the room is a major reason the industry has such a hard time learning that you have to compete with piracy, not engage in idiotic, counter-productive and often harmful attempts to "cure" it with legislation, lawyers, or an endless parade of terrible ideas.

The old adage that those who fail to learn from history are doomed to repeat it will likely hold true here. If the current trend holds, by 2022 consumers will be forced to subscribe to an absolute universe of $10 to $15 per month services just to get all the content they're looking for, on the presumption the average household has an unlimited amount of disposable income.

If history is any indication, it will take another year or two for the industry to identify and admit this exclusivity parade is driving users back to piracy. At that point, they'll probably burn through a rotating crop of "solutions" (like waging war on password sharing), before coming to this central conclusion: that licensing your content to a sensible but not overwhelming crop of companies actually good at the technical and customer service aspects of streaming (like, Netflix) -- instead of everybody and their mother launching their own streaming product -- wasn't such a terrible idea after all.