So, Vice's Motherboard has an amusing article about how the misleadingly named GuitarHeroFailure (misleading, because the guy's actually good at the game) tried to get around YouTube ContentID takedowns on one of his Guitar Hero videos (of Ozzy Osbourne's "Bark at the Moon") by singing an acapella version of the song over it. The overall effect is really quite amazing. Watch the video (and don't miss his, um, "variation" at the very end) below:
The guy claims, in a separate video that he wasn't really trying to comment on copyright law (he actually says "YouTube's copyright laws," which, you know, aren't actually a thing). But, no matter what it is commenting on it. He notes that he was really proud of how well he did in that particular game, and was disappointed that it got taken down by YouTube.
But, even if he didn't mean for it to be a comment on copyright law, it absolutely is. But here's the craziest part. It's likely that his new video also violates copyright law. Because, remember, when it comes to music licensing in particular, copyright law is insane. There are multiple licenses that you need. There's one for the sound recording -- and in this case, he doesn't have to deal with that one. But, if you're doing a cover song, you need a mechanical license for the composition of the song. And then, the fact that it's been put on a video raises a whole separate issue, which is the need for a totally different license called a synch license, for when you use a composition with a video.
Of course, YouTubers rarely (i.e., basically never) get such licenses at all, and it's mostly ignored by everyone. But that doesn't mean it will always be. And, again, that highlights the absolute insanity of music licensing these days. People are doing stuff that clearly is not taking away anything from the market for the original music, but because of the messy, patchwork setup of copyright laws and music licensing, it's almost impossible to be fully compliant no matter what you do.
And don't even get me started on the copyright questions raised by this other video in which someone took GuitarHeroFailure's acapella and synched it to the original Ozzy song. Because, really, there aren't enough hours in the day to analyze that mess...
Years back, Georgia dentist Gordon Austin was indicted on 12 counts "with multiple counts of simple battery, aggravated assault, and cruelty to children." The details of the case were pretty horrifying, involving claims of Medicare fraud, along with multiple claims that Austin hit his patients when they would complain loudly (apparently after the anesthesia did not work properly). When he was indicted, the local news covered the story as you can see below:
That video was uploaded by a user named "gordonaustinsacoward," and it was uploaded on March 1, 2009, while the case was still ongoing. Eventually, Austin appeared to have worked out a plea deal, in which he pled guilty to Medicare fraud, while the assault and cruelty to children charges were dropped. His dental license was pulled and he got five years probation, along with $15,000 in fines.
Everything about this is ridiculous. The statute of limitations (1 year for defamation) is long past. From everything that's been reported, it's not clear that anything in the video is even defamatory anyway. And, of course, in just reposting someone else's video, there are Section 230 protections as well. This seems like Austin deciding he wants to find out who uploaded the video and this is the way he wants to do so. Paul Levy from Public Citizen has filed a motion to quash the subpoena.
It is settled law that, when a subpoena seeks to identify an anonymous Internet speaker so
that the speaker can be served as a defendant in a lawsuit, the plaintiff has the burden of showing
both that he has filed a valid complaint and that he has admissible evidence establishing the
elements of his claims.... No
such evidence has been provided here. Moreover, settled law also establishes that the complaint
cannot possibly succeed for several reasons, including that the suit was filed six years after the
allegedly defamatory statements were made, long after the statute of limitations expired, and that,
because Doe only posted a video that somebody else had created, section 230 of the
Communications Decency Act immunizes him from being sued.
The motion notes that the defamation complaint has all the hallmarks of someone just trying to censor -- mainly a total lack of calling out any actually defamatory claims:
The complaint repeatedly refers to
“false” statements but never specifies what the alleged falsities are and how they are false. And
although the complaint alleges actual malice in very conclusory terms, it never explains why an
ordinary citizen would not be justified in accepting the word of the prosecution as well as Fox
News in repeating the gist of the indictment and republishing the TV story.
Of course, in the end, all this can serve to do is bring Gordon Austin's previous guilty plea and indictment back into the public's attention. And it may end up costing him -- both in bringing the case back into the public's view, but also because California recently made attorneys' fees mandatory on subpoenas that are quashed, something that Paul Levy will now be testing -- including seeking fees from the lawyers who filed the bogus lawsuit and subpoena in the first place:
Several years ago, the California Court of Appeal ruled, in a case we handled involving a subpoena from the so-called “randy rabbi,” Mordecai Tendler, that California’s anti-SLAPP statute cannot be used to strike subpoenas sought in support of litigation in a different state. The California legislature responded by amending its Code of Civil Procedure to provide that, when the target of such a subpoena successfully moves to have the subpoena quashed, the court "shall" award attorney fees. This statutory provision can help encourage lawyers to take subpoena cases as, for example, the inclusion of a “special motion to quash” in DC’s anti-SLAPP law has encouraged lawyers to take on such motions pro bono. And equally important, it can create a disincentive for the issuance of groundless subpoenas to the California ISP’s that can only be subpoenaed in California. But, so far as I have been able to determine, that statute has not yet been applied. In order to fortify the disincentive, we intend to argue that, like any other attorney fee award under the discovery rules, that the lawyer can be held responsible along with the client.
As Levy notes, it appears that Austin's lawyer, John Autry, refused to withdraw the subpoena when asked, and appeared to know that he was filing a lawsuit well after the statute of limitations had run out:
I personally urged the lawyer who signed the subpoena, John Autry (whose name does not appear on his firm’s web site), to withdraw the subpoena. I am willing to assume that, given the nature of the legal practice described on the Coles Barton web site, their research might never have brought section 230 immunity to their attention, but Mr. Autry certainly knew that the defamation action was time-barred; he was defensive about that aspect of the case when I first spoke to him. Moreover, however much Mr. Autry might be willing to let his client proclaim his innocence when not speaking under oath, he cannot possibly doubt that the anonymous poster had at least some reason to believe that Austin was guilty of the charges for which he was indicted, and which were described in detail during the television broadcast. I don't see how he can possibly expect to make out a prima facie case in support of his client’s causes of action, and he can fairly be held responsible for not having noticed that California requires the plaintiff to present sufficient evidence to make out a prima facie case before an online poster can be outed. Thus Austin’s lawsuit has no realistic chance of success, and Mr. Autry can be faulted for lending his position as an officer of the court to obtain issuance of a subpoena that represents pure bullying, perhaps undertaken in the hope that the anonymous user might be unable to find and afford counsel to have it quashed in California.
It is a shame that Austin’s lawyer was neither able to persuade his client to drop the subpoena, nor willing to withdraw his own participation in this travesty. At this point, however, it seems likely that the lawyer will have to join his client in paying a financial price for that bullying.
from the they're-wrong-about-the-throttling,-maybe-not-on-the-jerk-thing dept
On Monday we wrote about T-Mobile flat out lying about the nature of its BingeOn mobile video service -- and after a couple of days of silence, the company has come out swinging -- by lying some more and weirdly attacking the people who have accurately portrayed the problems of the service. As a quick reminder, the company launched this service a few months ago, where the company claimed two things (though didn't make it entirely clear how separate these two things were): (1) that the company would not count data for streaming video for certain "partner" companies and (2) that it would be "optimizing" video for all users (though through a convoluted process, you could opt-out).
There were a bunch of problems with this, starting with the fact that favoring some partner traffic over others to exempt it from a cap (i.e., zero rating) is a sketchy way to backdoor in net neutrality violations. But, the bigger issue was that almost everything about T-Mobile's announcement implied that it was only "partner" video that was being "optimized" while the reality was that they were doing it for any video they could find (even downloaded, not streamed). The biggest problem of all, however, was that the video was not being "optimized" but throttled by slowing down video.
Once the throttling was called out, T-Mobile went on a weird PR campaign, flat out lying, and saying that what they were doing was "optimizing" not throttling and that it would make videos stream faster and save users data. However, as we pointed out, that's blatantly false. Videos from YouTube, for example, were encrypted, meaning that T-Mobile had no way to "optimize" it, and tests from EFF proved pretty conclusively that the only thing T-Mobile was doing was slowing connection speeds down to 1.5 Mbps when it sensed video downloads of any kind (so not even streaming), and that actually meant that the full amount of data was going through in many cases, rather than an "optimized" file. EFF even got T-Mobile to admit that this was all they were doing.
So that makes the response of T-Mobile execs yesterday and today totally baffling because rather than actually respond to the charges, they've doubled down on the blatant lying, suggesting that either it's executives have no idea what the company is actually doing, or that they are purposely lying to their users, which isn't exactly the "uncarrier" way that the company likes to promote.
We'll start with the big cheese himself, CEO John Legere, whose claim to fame is how "edgy" he is as a big company CEO. He's now released a statement and a video that are in typical Legere outspoken fashion -- but it's full of blatant lies.
The video and the typed statement are fairly similar, but Legere adds some extra color in the video version.
Let's parse some of the statements. I'll mostly be using the ones from the written statement as they're easier to cut and paste, rather than transcribe, but a few from the video are worth calling out directly.
I’ve seen and heard enough comments and headlines this week about our Binge On video service that it’s time to set the record straight. There are groups out there confusing consumers and questioning the choices that we fight so hard to give our customers. Clearly we have very different views of how customers get to make their choices -- or even if they’re allowed to have choices at all! It’s bewildering …so I want to talk about this.
Of course, this is a nice, but misleading attempt to frame the conversation. No one is complaining about "giving choices to consumers." They're complaining about (1) misleading consumers and (2) providing a worse overall experience by throttling which (3) directly violates the the FCC's prohibition on throttling. The next part I'm taking from the video itself, rather than the printed statement, because Legere goes much further in the video, including the curses, which magically don't show up in the printed version:
There are people out there saying we’re “throttling.” That's a game of semantics and it's bullshit! That's not what we're doing. Really! What throttling is is slowing down data and removing customer control. Let me be clear. BingeOn is neither of those things.
This is flat out wrong and suggests Legere doesn't even know the details of his own service. As the EFF's tests proved (and the fact that YouTube videos are encrypted should make clear) T-Mobile is absolutely slowing down data. In fact, EFF got T-Mobile to confirm this, so Legere claiming it's "bullshit" is... well... bullshit!
But he's playing some tricky word games here, claiming that throttling is not just slowing down data, but also removing customer control. That's (1) not true and (2) also misleading. For all of Legere and T-Mobile's talk about "giving more options to consumers" or whatever, they're totally leaving out the fact that they automatically turned this on for all users without a clear explanation as to what was happening, leading to multiple consumer complaints about how their streaming videos were no longer functioning properly -- even for users on unlimited data plans.
Customer choice? Sure they could "opt-out" after through a convoluted process that many did not understand. But T-Mobile made the choice for all its users, rather than providing a choice for its customers to make.
Mobile customers don’t always want or need giant heavy data files. So we built technology to optimize for mobile screens and stream at a bitrate designed to stretch your mobile data consumption. You get the same quality of video as watching a DVD, but use only 1/3 as much data (or, of course, NO data used when it’s a Binge On content provider!). That's not throttling. That's a huge benefit.
Again, this is both wrong and misleading. There is no optimization. Legere is lying. They are 100% slowing down the throughput on video when they sense it. The EFF's tests prove as much. Yes, for some video providers when they sense lower bandwidth, they will downgrade the resolution, but that's the video provider optimizing, not T-Mobile. T-Mobile is 100% throttling, and hoping that the video provider downgrades the video.
But in cases where that doesn't happen then it doesn't save any data at all (the EFF test confirmed that the full video file still comes through, just slower).
Also, note the play on words "You get the same quality of video as watching a DVD." At first you think he's saying that you get the same video quality overall, but he's not. He's saying as a DVD, at 480p, which is lower than the 1080p that many HD videos are offered at. And that's what many people are complaining about -- that they'd like to watch videos at the full 1080p, but T-Mobile made the choice that they can't do that unless they go through a convoluted process to turn this off.
Rather than respond to any of this, Legere then claims that "special interest groups" and Google are doing this.... "to get headlines."
So why are special interest groups -- and even Google! -- offended by this? Why are they trying to characterize this as a bad thing? I think they may be using Net Neutrality as a platform to get into the news.
Wait, what? Google -- the same Google that absolutely refused to say anything publicly at all about net neutrality for years during the debate suddenly wants to get into the news by jumping on the net neutrality bandwagon? Does Legere have any idea how ridiculous that sounds? And it's not like Google has a problem getting into the news. And what about EFF and others? Does he really think they need to get extra news coverage?
But note the facts here: at no point does Legere respond to the actual charges leveled against the company. He then concludes by yelling at everyone for daring to complain about this:
At T-Mobile we're giving you more video. More choice. And a powerful new choice in how you want your video delivered. What's not to love? We give customers more choices and these jerks are complaining, who the hell do they think they are? What gives them the right to dictate what my customers, or any wireless consumer can choose for themselves?
Nice. I'm part of the contingent complaining about this and I'm also a T-Mobile customer... and the CEO just called me a jerk while telling me he's fighting for his customers? Really now?
And again this whole statement is blatantly misleading. The "choice" was made by T-Mobile for all users, and getting out of it involves a convoluted process that most don't understand and where none of this was made clear to end users. Beyond violating the FCC's "no throttling" rule, I wonder if it also violates the FCC's transparency rules as well, in which they are required to be much more upfront about how the data is being treated.
Also, the statement above is from the video where we're described as "jerks," but in the written version it leaves out the "jerks" claim, but also includes the following bit mocking YouTube for letting users choose to change the resolution on videos:
YouTube complained about Binge On, yet at the same time they claim they provide choice to customers on the resolution of their video. So it's ok for THEM to give customers choice but not for US to give our customers a choice? Hmmm. I seriously don't get it.
But that's bullshit also. YouTube's choice option there is a clear pulldown on every video shown, so that a user just needs to click on the video their watching and set the resolution. T-Mobile's is a process that's not clear at all, with some users reporting they had to call in and get T-Mobile customer service to turn BingeOn off for their account. To compare the two situations is completely bonkers.
As far as I can tell, Legere either doesn't understand what his own company is doing technically, or knows and is purposely misrepresenting it. Neither of those look good and go against the entire "uncarrier" concept they keep pitching. I'd expect better as a T-Mobile customer than being told that I'm a "jerk" for pointing this out.
And it appears he's not the only one among senior execs at T-Mobile who still don't realize what their own company is doing. On Wednesday at a Citigroup conference, T-Mobile's Chief Operating Officer Mike Sievert
spewed some more nonsense suggesting he, too, has no idea what his own company is doing:
At a Citigroup investor conference Wednesday, T-Mobile executives shot back, saying YouTube’s stance is “absurd.” YouTube is owned by Alphabet Inc. “We are kind of dumbfounded, that a company like YouTube would think that adding this choice would somehow be a bad thing,” said T-Mobile Chief Operating Officer Mike Sievert. He said YouTube hasn’t “done the work yet to become part of the free service.”
Taken at face value, that comment makes no sense. If YouTube hasn't done the work yet to become a part of the free service than why the fuck is T-Mobile slowing down its videos? YouTube wasn't complaining about "adding this choice." YouTube was complaining about direct throttling of video content by T-Mobile, in clear violation of the FCC's prohibition on throttling.
Sievert and Legere both don't seem to understand (1) what YouTube and users are complaining about or (2) what his own company is doing. That's... troubling, given that these are the CEO and COO of the company. It really seems like T-Mobile execs might want to spend some time talking to its tech team to understand the fact that the only thing T-Mobile is doing to video is throttling it down to 1.5 Mbps, rather than any actual "optimization" before spewing more nonsense and calling their own customers "jerks." And, they might want to realize that their claim that this is all "bullshit" is actually complete bullshit. And that their bullshit may very well violate the FCC's rules.
Big companies often have a way of tap dancing around the truth. It's rarely lying, because they will choose their words carefully, in a manner that clearly misleads or distorts, but is not necessarily outright lying. T-Mobile, however, appears to be flat out lying. We recently wrote about the charges from YouTube that T-Mobile was throttling YouTube videos as part of its Binge On program that zero rates video on mobile phones so it doesn't count against data caps. We noted the problems with this program when it launched, but YouTube's claims take it even further.
Again, the program supposedly "optimizes" video streams down to a lower resolution, with the promise that partner videos will not count against T-Mobile's data caps. However, YouTube pointed out that it is not a partner and its videos were being throttled, in clear violation of the clear "no throttling" rules from the FCC. T-Mobile took exception to my post about it and demanded corrections and clarifications, making a few different claims. After investigating the claims, I can say (1) that we will not be clarifying or correcting anything in the original post and (2) more importantly, it appears that T-Mobile is flat out lying in some of its claims. It's not dancing around the truth, it is claiming things that are simply untrue. This is the key claim that T-Mobile's PR person made to me:
Using the term “throttle” is misleading. We aren’t slowing down YouTube or any other site. In fact, because video is optimized for mobile devices, streaming from these sites should be just as fast, if not faster than before. A better phrase is “mobile optimized” or “lower resolution.”
This is clearly not true. While you can have a semantic debate about whether "throttling" is "optimizing," the facts with T-Mobile are pretty clear: it is NOT optimizing YouTube videos at all. It is 100% throttling them.
When Binge On first launched without YouTube as a partner, many people asked why, and T-Mobile's VP of Engineering, Grant Castle, explained that the reason was because it could not identify YouTube videos, since nearly all YouTube traffic is encrypted. Thus, T-Mobile admitted that it had no way to "optimize" YouTube videos:
T-Mobile says the problem is technical. The software it is using to deliver streaming video at lower-definition quality needs to be able to identify the incoming traffic as being video as opposed to, say, photographs or email. It can’t always do that with YouTube.
Most YouTube traffic uses a protocol called HTTPS, which T-Mobile can detect, but some portions may be using a less-used protocol called UDP that the wireless company has more difficulty reading, according to Grant Castle, vice president of engineering at T-Mobile. That means the carrier isn’t certain about the format of some streams coming from YouTube.
“YouTube is a little difficult,” said Mr. Castle.
Thus, the only thing that T-Mobile can do for many YouTube encrypted streams is not to "optimize" it at all, but to flat out throttle it down to speeds around 1.5 mbps. You can see this in the tests done by Dualsim.us and the following video.
Remember how T-Mobile in their message to me said that the "optimized" videos should show up "just as fast, if not faster than before." Yeah, that's bullshit. Watch the video below (I start the video about 5 minutes in -- the first five minutes mostly just show that the two phones are both on T-Mobile's unlimited network with similar speed connections -- at which point the video comparison is shown):
As you can see, rather than "just as fast, if not faster than before," what you see for the throttled -- not "optimized" -- video is, instead, something much slower. That's because T-Mobile appears to downgrade the data flow from ~12 Mbps down to something like 1.4 or 1.5 Mbps.
That's absolutely 100% throttling. There is no "optimization" going on because T-Mobile cannot optimize those videos, since they're encrypted.
T-Mobile is lying. Flat out lying.
And... in a bit of perfect timing, just as I was completing this post, I see that EFF has published the results of its own technical tests of BingeOn, which also confirm that there is no "optimization" here -- and got T-Mobile to admit it was lying. It's purely throttling:
Our last finding is that T-Mobile’s video “optimization” doesn’t actually alter or enhance the video stream for delivery to a mobile device over a mobile network in any way. This means T-Mobile’s “optimization” consists entirely of throttling the video stream’s throughput down to 1.5Mbps. If the video is more than 480p and the server sending the video doesn’t have a way to reduce or adapt the bitrate of the video as it’s being streamed, the result is stuttering and uneven streaming—exactly the opposite of the experience T-Mobile claims their “optimization” will have.
Given the difference between what T-Mobile implies they do and what we found, we contacted them to get clarification. They confirmed that they don’t do any actual optimization of video streams other than reducing the bandwidth allocated to them (and relying on the provider to notice, and adapt the bitrate accordingly).
In fact, the EFF study compared a hash of the download to a version that was on the server and found the files were identical (i.e., no "optimization" -- just purely throttling). Again, this is the exact opposite of what T-Mobile's PR person told me in demanding a correction. T-Mobile is lying.
EFF also discovered that T-Mobile's earlier statement that it can't detect encrypted video is also misleading, as the company now claims it can:
The second major finding in our tests is that T-Mobile is throttling video downloads even when the filename and HTTP headers (specifically the Content-Type) indicate the file is not a video file. We asked T-Mobile if this means they are looking deeper than TCP and HTTP headers, and identifying video streams by inspecting the content of their customers’ communications, and they told us that they have solutions to detect video-specific protocols/patterns that do not involve the examination of actual content.
Finally, EFF realized that even if you're just downloading the video (i.e., not streaming, but downloading for later viewing), you STILL get throttled:
The first result of our test confirms that when Binge On is enabled, T-Mobile throttles all HTML5 video streams to around 1.5Mps, even when the phone is capable of downloading at higher speeds, and regardless of whether or not the video provider enrolled in Binge On. This is the case whether the video is being streamed or being downloaded—which means that T-Mobile is artificially reducing the download speeds of customers with Binge On enabled, even if they’re downloading the video to watch later. It also means that videos are being throttled even if they’re being watched or downloaded to another device via a tethered connection.
A separate claim in the email from T-Mobile is more of the "tap dancing around the truth" variety. And it's the claim that T-Mobile made it clear from the beginning that it would be doing this to non-partner videos as well. Here's what the T-Mobile rep said in the email to me:
This is how Binge On has always worked. We said it from the stage, in press materials, on the web, and in customer notifications last month, and media covered it last month, as well.
This is extremely misleading. Nearly everyone I've spoken to among people who follow these issues had no idea that the "throttling" (not optimization) applied to non-partner videos. I, as a T-Mobile customer, also never received any such notice (though the PR person then forwarded me the "notification" email, so I guess technically I have now received it). Either way, I went back to look at the press release and T-Mobile's own page about Binge-On to see about how clearly the company really revealed that it would also be throttling non-partner video. And the company was not at all clear about it.
In the press release (not surprisingly), T-Mobile focuses on all the Binge On partners. To realize that it's also throttling other videos you have to carefully parse some confusing text buried in the 8th paragraph of the press release, which most people won't even recognize. Here are paragraphs four through eight -- with the relevant mention bolded (without that, you might miss it):
With Binge On, video now streams free for viewers and subscribers of Crackle, Encore, ESPN, Fox Sports, Fox Sports Go, HBO Now, HBO Go, Hulu, MLB, Movieplex, NBC Sports, Netflix, Sling TV, Sling Box, SHOWTIME, STARZ, T-Mobile TV, Univision Deportes, Ustream, Vessel, Vevo, VUDU—with more streaming services on the way—without ever touching their 4G LTE data on Simple Choice plans with extra data. T-Mobile is also including Verizon’s Go90 and AT&T’s DirecTV streaming services in Binge On, so even the Duopoly’s video services stream without fear of overages.
Binge On is open to any streaming video provider who meets the technical requirements, which are available online at www.t-mobile.com/bingeon. And it’s completely free for video streaming providers to join.
“With Binge On, no one pays—not the customers, not the video streaming services—and everyone wins,” said Legere.
Powered by new technology built in to T-Mobile’s network, Binge On optimizes video for mobile screens, minimizing data consumption while still delivering DVD or better quality (e.g. 480p or better). That means more reliable streaming for services that stream free with Binge On, and for almost all other video, it means T-Mobile Simple Choice customers can watch up to three times more video from their data plan. And, as always, T-Mobile has put customers in total control with a switch to activate or deactivate Binge On for each line in their My T-Mobile account. Binge On is all about customer choice.
So basically all of the press release is talking about how Binge On is about "free" video from partners, and then in the second half of a sentence, buried in the middle of a paragraph (eight paragraphs into the press release) is a tidbit about how "for all other videos" the bandwidth is downgraded (what T-Mobile falsely calls "optimized"). That is the farthest thing from being clear about what is happening.
Similarly, on the website for Binge On itself, this is far from clear. Most of the page goes on and on and on about how "you can stream all you want for FREE without using your data." The clear implication is that video streaming doesn't count against a datacap. Lower down it has the following:
What basically no one is going to realize is that the "Watch 3X more video" claim on the right is talking about non-partner video. They don't actually say that. In fact, given how so much of the focus is on how the video doesn't count against the data cap at all, the whole "3x more video" bit is actually kind of confusing, because they're both saying you can watch "as much video as you want" on the left, and then on the right, saying you can now watch 3x as much video. They are not being clear at all about this.
It's only if you go all the way to the bottom of the page and click to expand the first "question" about Binge On that it finally explains what this means:
I mean, it's really, really buried. Here's a screenshot of the whole page, showing you where this information is buried (and, remember, this is showing it to you after I've clicked the little "+" button to show more). Most people will miss it entirely:
So, yeah: T-Mobile is flat out lying in claiming that it "optimizes" YouTube, and it's being ridiculously misleading in arguing that it was abundantly clear about how Binge On would impact non-partner videos.
Now, the big question: will the FCC actually do anything about this?
For quite some time now, we've pointed out that the whole zero rating issue was a way for broadband providers to conduct a stealth war on net neutrality -- first putting in place "restrictions" that they could then "lift" for partners, pretending it was a consumer friendly move. Last month, T-Mobile introduced Binge-on, it's second such attempt at zero rating. Its first, Music Freedom, exempted some streaming music services from its data caps. Binge-On focused on video, but had a few oddities. Like Music Freedom, Binge On would make "select" video streaming platforms exempt from the data cap -- but in order to do that, it would downgrade the quality of those streams to 480p, a lower resolution than most are used to these days. It was notable that neither YouTube nor Amazon Prime were included "partners" in the launch.
But... some people started noticing some problems: specifically, even those services that have not partnered with T-Mobile started seeing their own videos downgraded. The complaints started to flow on Reddit: someone noticed that Amazon-owned Twitch.tv's videos were suddenly being throttled. Others noticed YouTube videos being throttled. In both cases, those users were able to "fix" the problem by going into their account and turning off Binge On, but it still seemed troubling that T-Mobile had decided to automatically turn on Binge On for users, downgrading streaming video, even for video providers who had not agreed to such provisions.
Degrading video quality this way violates the FCC’s no-throttling part of the net neutrality rule, which forbids reducing the quality of an application or an entire class of applications. Even though T-Mobile and its brilliant CEO, John Legere, have done much to shake up the mobile industry in positive ways (they even won me over as a subscriber), this is one practice that the company should, and probably must, abandon.
As a purely legal matter, T-Mobile cannot easily defend its actions by arguing that this discrimination is good for its users. The FCC has already rejected that argument in advance by adopting a “bright-line” rule for all technical forms of discrimination absent some special technical justification. After hearing from millions of Americans throughout 2014, the FCC decided earlier this year that “the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet,” and named one of them throttling.
YouTube, which is owned by Alphabet Inc., said T-Mobile is effectively throttling, or degrading, its traffic. “Reducing data charges can be good for users, but it doesn’t justify throttling all video services, especially without explicit user consent,” a YouTube spokesman said.
T-Mobile -- which has never been a fan of the new net neutrality rules, seems to think that because the service is "optional" that makes it okay. But that ignores two key things: (1) the FCC's rules say no throttling and (2) even if it is optional, T-Mobile turned it on for everyone, without telling users, and has not made it at all clear to users what's happening. That is, in every complaint you see online, you'll notice that people have no idea that this service has been turned on.
That makes it hard to square with the idea that this is for the benefit of T-Mobile subscribers. T-Mobile's only statement on this issue so far is also totally disingenuous:
In a statement, the No. 3 U.S. carrier by subscribers said its customers “love having free streaming video that never hits their data bucket” and like “both the quality of their video experience and the complete control they have.”
Again, this is T-Mobile exempting certain services from the data caps it set up itself. If customers love having streaming video that doesn't hit their data caps, then there are all sorts of ways to do that, which don't involve messing up the user experience overall, and without surreptitiously turning this system on in a way that messes up the plans of users.
Over the last few months, we've seen basically all of the major telcos look for ways to test the boundaries of the new net neutrality rules. At some point the FCC is going to have to smack them down or the tests are going to get more anti-consumer and more blatant. And, again, don't be fooled into thinking this is a "pro" consumer move in that it exempts data from the cap. That's like someone tackling you and then demanding to be called a nice guy for giving you a hand to get back up. The data caps are set by T-Mobile itself. The argument pretending that an exemption is somehow consumer friendly should immediately be spun around to point out that the caps themselves are then clearly anti-consumer.
Either way, one hopes that the FCC is actually paying attention, otherwise the telcos are going to keep moving to walk all over the new rules, with plans like this one, figuring out where and how they can throttle or prioritize traffic based on the providers' own needs, rather than based on what the internet allows.
Earlier this year, Senator Dianne Feinstein, who seems to be an endless well of bad ideas around surveillance, started pushing a bill that would require internet companies to report to the government any content they suspected was posted by terrorists. This bill has all sorts of problems, not the least of which is that most of the major internet companies already alert the government to any terrorist-related content that they come across. But, by mandating such reporting, it will only lead to these companies filing a bunch more reports -- much of which will be bogus, flooding the government with useless information, just to avoid running afoul of the law.
Back in September, Senator Wyden successfully forced Feinstein to drop the bill...
But, of course, in the wake of the Paris and San Bernardino attacks all bad ideas are back on the table, and Feinstein is bringing this one back as well. She's teaming up with the intelligence committee's other biggest cheerleader, Intelligence Committee boss Senator Richard Burr, to reintroduce the idea, and they put out a completely bogus statement that plays up the fearmongering angle as much as possible, about those darn ISIS people using social media.
“We’re in a new age where terrorist groups like ISIL are using social media to reinvent how they recruit and plot attacks,” Senator Feinstein said. “That information can be the key to identifying and stopping terrorist recruitment or a terrorist attack, but we need help from technology companies. This bill doesn’t require companies to take any additional actions to discover terrorist activity, it merely requires them to report such activity to law enforcement when they come across it. Congress needs to do everything we can to help intelligence and law enforcement agencies identify and prevent terrorist attacks, and this bill is a step in the right direction.”
“Terror groups have become adept at taking advantage of social media platforms to spread their message,” Senator Burr said. “Social media is one part of a large puzzle that law enforcement and intelligence officials must piece together to prevent future attacks. It’s critical that Congress works together to ensure that law enforcement and intelligence officials have the tools available to keep Americans safe. The stakes have never been higher and having cooperation with these outlets will help save lives here and abroad.”
Neither of those quotes makes any sense. Again, most companies already report stuff, and mandating it will only lead to more bogus reports to avoid liability for the companies, while potentially leading to less active monitoring since they only have to report stuff if they come across it. As for Burr's assertion that this is necessary to give law enforcement "the tools" to find this information -- that's a totally different issue. Doesn't law enforcement have computers? Can't they go to Twitter and Facebook and YouTube themselves and do searches?
Let’s make sure the record is clear: The Director of the FBI testified a few months ago that social media companies are ‘pretty good about telling us what they see.’ Social media companies must continue to do everything they can to quickly remove terrorist content and report it to law enforcement.
I’m opposed to this proposal because I believe it will undermine that collaboration and lead to less reporting of terrorist activity, not more. It would create a perverse incentive for companies to avoid looking for terrorist content on their own networks, because if they saw something and failed to report it they would be breaking the law, but if they stuck their heads in the sand and avoided looking for terrorist content they would be absolved of responsibility.
I’m for smart security policies. If law enforcement agencies decide that terrorist content is not being identified quickly enough, then the solution should be to give those agencies more resources and personnel so they know where to look for terrorist content online and who to watch, and can ensure terrorist activity is quickly reported and acted upon.
Why is this proposal such a bad idea? As we described in July, it would create a requirement for all electronic communication services – social media companies, as well as Internet service providers, web hosts, cloud services, and public libraries or coffee shops that offer WiFi access – to make reports about their users’ activity based on a completely opaque set of criteria. Creating such an obligation, with its vague parameters, would drive Internet companies to one of several likely responses. Some would decide to significantly over-report their customers’ information and private communications to the US government to ensure that the company stays on the right side of the law. Others would refuse to review any content that was flagged to them, for fear that doing so would mean they obtain the “actual knowledge of any terrorist activity” that triggers the reporting obligation.
Either of these outcomes pose major problems for the free expression and privacy of Internet users. It’s also far from clear that this would generate actionable information for law enforcement or intelligence agencies. Further, this type of reporting obligation would undermine any sense of trust between Internet users and the companies that provide the service providers that enable them to access information, conduct transactions, and share their perspectives online. The proposal would essentially deputize US-based Internet companies to act as agents of the government, including potentially requiring entities such as email services to turn over the contents of private communications if they are part of the “facts and circumstances” of alleged terrorist activities – for their users both in the US and abroad.
It's a bad idea and Feinstein knows it's a bad idea, because all of this has been explained to her multiple times in the past. So why is she still proposing it?
that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the blocking of access to YouTube, a website enabling users to send, view and
The Court found in particular that the applicants, all academics in different [Turkish] universities, had been prevented from accessing YouTube for a lengthy period of time and that, as active users, and having regard to the circumstances of the case, they could legitimately claim that the blocking order in question had affected their right to receive and impart information and ideas.
One interesting aspect is how the court describes YouTube -- not just a place to find cat videos, but:
a single platform which enabled information of specific interest, particularly on political and social matters, to be broadcast. It was therefore an important source of communication and the blocking order precluded access to specific information which it was not possible to access by other means.
This ruling builds on the earlier ruling by the ECtHR in Yildrim v. Turkey (2012), which found against the Turkish practice of blocking entire sites and web services when content might have been illegal in only some instances. In the 2012 decision, the court recognized the claim of the owner of a service using Google Sites; in this case, the plaintiffs were not site owners, but users. In short, this ruling recognizes the rights and standing of internet users under the [European Convention on Human Rights]. The academics also successfully petitioned the court to recognize the concept of "citizen journalism" for the first time. This opens the door for more non-credentialed, unlicensed, or independent journalists and bloggers to fight for their rights.
Those broader implications make the win by the three Turkish academics even more valuable, since the ECtHR judgment can now be used to fight censorship in any of the 47 countries that have ratified the European Convention on Human Rights (pdf).
A few weeks ago, we pointed out that Hillary Clinton had, unfortunately, joined in with other clueless politicians to call for "Silicon Valley" to "develop solutions" to the "concerns of law enforcement and counterterrorism professionals" on "encryption." Anyone who's followed the "debate" over encryption over the past year knows that asking Silicon Valley to "develop solutions" is James Comey's codewords for "create a backdoor for encryption" -- no matter how many times experts in encryption have explained to him that such a solution makes everyone less safe. After we and a few others wrote about Clinton's unfortunate and dangerous decision to throw her lot in with those who wish to backdoor encryption, one of her main tech advisers, Alec Ross, went a little ballistic, insisting she did not say what she clearly did say.
STEPHANOPOULOS: How about Apple? No more encryption?
CLINTON: This is something I've said for a long time, George. I have to believe that the best minds in the private sector, in the public sector could come together to help us deal with this evolving threat. And you know, I know what the argument is from our friends in the industry. I respect that. Nobody wants to be feeling like their privacy is invaded.
But I also know what the argument is on the other side from law enforcement and security professionals. So, please, let's get together and try to figure out the best way forward.
But, again, that's like asking "the best minds" to come up with bullets that only kill bad people. Or books that only nice people are allowed to read. You're asking for an impossibility, and in doing so, you're making everyone less safe by undermining encryption -- which is the key to realistic computer security.
Even worse, when Clinton claims that she knows "what the argument is from our friends in the industry" she gets their argument wrong. It's not just about invading privacy. It's about the fact that she's asking for the impossible. It's not just about protecting the privacy of people from intruding government. It's about not weakening overall systems that will allow those with bad intent to do lots of damage. It's a ridiculous statement and Clinton appears to be getting just as bad technology advice as basically every other presidential candidate.
STEPHANOPOULOS: If you were in the Oval Office tonight, would you be announcing a new strategy?
CLINTON: Well, I think what -- that's what we'll hear from the president, an intensification of the existing strategy and I think there's some additional steps we have to take.
If you look at the story about this woman and maybe the man, too, who got radicalized, self-radicalized, we're going to need help from Facebook and from YouTube and from Twitter. They cannot permit the recruitment and the actual direction of attacks or the celebration of violence by this sophisticated Internet user.
They're going to have to help us take down these announcements and these appeals they get up.
I know that this view is one that many people agree with, but it's equally dangerous. First, it assumes that ISIS propaganda is apparently so powerful that no counter speech could possibly work against it, and thus it must be censored. But that's ridiculous on multiple levels. It overvalues the speech of ISIS and its supporters and the impact that it has (most studies have shown radicalization happens because of people individuals know in real life, not randos on the internet).
Really, though, exactly how are Facebook and Twitter and YouTube supposed to do this? How are they supposed to review every bit of content that everyone creates, and determine which bits are "good" and allowed and which are "bad" and not allowed? Clinton is asking for a fairy tale -- a world where (1) it's obvious what's good content and what's not and (2) one in which every bit of speech and communication is monitored and scored on such a non-existent scale. Both of these things are impossible. I don't know about you, but I prefer political candidates who focus on the possible, rather than fairy tales (I recognize this leaves me with basically almost no politicians to support, but occupational hazard, I guess...).
In a separate speech, given at the Brookings Institution, Clinton took this idea even further, calling on Silicon Valley to "disrupt ISIS," which is such a painful abuse of the term "disrupt" as to again raise questions about who is advising her on tech policy issues:
“We need to put the great disrupters at work at disrupting ISIS."
Disruption in the tech world is about making things cheaper and better, and reinventing markets. It's not about magically stopping bad people from using technology. This is still fairy tale thinking.
But, more importantly, it encourages (or potentially threatens to mandate) that these content and communications platforms have to start proactively monitoring all speech online, and determining, on the fly, what speech is "good" and which speech is "bad." That's dangerous and will undoubtedly lead to much greater censorship -- including content that actually is useful in highlighting atrocities and dangerous activities online. We've seen this before. After US politicians pressured YouTube into removing "terrorist" videos, it resulted in videos being deleted from a Syrian watchdog group that was documenting atrocities.
Besides, these two separate issues seem totally contradictory. On the one hand, Clinton and other anti-encryption folks whine about not being able to see what terrorists are saying "because encryption." But then, at the same time, they're saying that when those same people talk about things publicly online -- in a way that's trackable -- we should shut them down.
It's almost like they have no strategy at all... except to try to throw the blame on technology companies.
Back in 2013, we were impressed when the folks at Automattic (the company behind WordPress), actually filed some lawsuits against people who were abusing DMCA takedown notices just to takedown content they didn't like. Earlier this year, the company also took a strong stand against DMCA abuse by including a "Hall of Shame" in which it called out and shamed particularly egregious takedowns. At the time, we mentioned that other companies should pay attention. Fighting for your users' rights is important, but too many companies don't do it (and many just take things down on demand).
Now YouTube has stepped up a bit as well. There have been plenty of complaints about how YouTube -- and ContentID in particular -- deal with fair use. It's quite difficult for an algorithm to determine fair use, and that's part of the reason why we get nervous when copyright system defenders insist that you can automate takedown processes without collateral damage. However, Google has announced that it will promise to pay the legal fees (up to $1 million) of certain YouTubers where takedowns have been issued in cases where YouTube agrees that fair use applies:
We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.
We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it (for more background on the DMCA and copyright law see check out this Copyright Basics video). In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.
It is absolutely true that even when video creators believe that their use is non-infringing because it's fair use, many still won't issue a counternotice, because the next step, if the copyright holder disagrees, is to go to court. And even if you have a slam dunk case, that can be both time consuming and incredibly expensive. And, of course, if you lose, it can be life-destroying expensive, thanks to the idiocy of statutory damages provisions in copyright law.
Constantine Guiliotis, who goes by Dean and whose channel dedicated to debunking sightings of unidentified flying objects has just over 1,000 subscribers, is one of the video makers YouTube will defend. Mr. Guiliotis has received three takedown notices from copyright holders of videos that he has found online and posted to his YouTube channel, U.F.O. Theater.
In his videos, Mr. Guiliotis includes the videos he found but also provides analysis and commentary, which YouTube argues is within the guidelines of fair use rules. The site reposted the videos after its review and told Mr. Guiliotis it would defend him against any future legal action. Like the other creators YouTube has selected, Mr. Guiliotis has not been sued for his videos.
“It was very gratifying to know a company cares about fair use and to single out someone like me,” Mr. Guiliotis said.
Sherwin Siy, over at Public Knowledge, notes that Google probably won't have to spend much money, as any copyright holder who realizes that Google is backstopping the videos will probably (wisely) realize that going to court is less likely to have the desired effect (which is usually just intimidating people into taking down content). However, it's still an important move in creating extra protection for fair use and in helping to establish a clear bar of what's considered to be fair use:
But while this means that Google isn’t likely to spend much, if any money, in litigating these cases, the program still does two very important things. First, it does in fact protect those uploaders. By giving these videos a stamp of approval, Google’s legal team will make the sort of person who sends a bogus or careless takedown notice think even harder about filing a bogus lawsuit. That sort of reassurance can be enough encouragement for someone to put back a video. Oftentimes, someone receiving a takedown notice can shy away from exercising her rights to have it put back because doing so exposes her to a lawsuit. With this sort of protection, much of that fear disappears.
But perhaps the more useful aspect of the program is that it sets a clear example of what fair use is. As videos are added to the program, other users will have a useful set of models that show what Google’s lawyers, at least, are confident is fair use. That information can help an everyday YouTube user in ways that more text-based and specific guides (for educators, etc.) might not.
And this collection of videos sets an example for far more than just other video creators. The set of fair uses on display can act as a living example of the predictability of fair use. Too often, the doctrine is considered hazy or indefinite or impossible to determine. And while there are lots of cases that can exist in a gray area, there’s even more cases that actually are pretty black or white. Most people have seen clearly infringing videos; this program will show a wider audience clearly non-infringing videos. That’s particularly important in the face of other countries who have yet to adopt fair use as a limit on their copyright laws, and have been told that it’s too unpredictable for them to rely upon.
This is why YouTube’s announcement is a game-changer: Copyright-based censorship strategies are no longer risk free. Now, before launching an unjustified DMCA takedown, the claimant will have to weigh the risk of going up against Google and its deep pockets in a lawsuit. (The legal environment could get even more interesting in light of a recent ruling in the Prince “dancing baby” that could make it easier for fair use victors to claim legal fees from those who removed their videos).
I don't know if I'd go that far. Again, Google is only protecting a "handful" of videos, but at the very least it may scare off some of the more egregious abuses, and that's always a good thing. Now, we just need even more platforms to recognize that fighting for your users' fair use rights is important.
As you may recall, back in 2007, entertainment giant Viacom sued YouTube for $1 billion, arguing that it was nothing more than a piracy site. Of course, Viacom's case faltered, badly, when it was later revealed that over 100 of the videos it listed as infringing had been... uploaded by Viacom employees as part of a marketing strategy. That act alone showed that even Viacom employees recognized the site had "substantial noninfringing uses." After seven years of battling it out in court, the two sides finally settled last year. However, it does seem noteworthy that Paramount Pictures, the major Hollywood movie studio that is owned by Viacom just announced that it had posted over 100 of its own movies for free on YouTube in their entirety.
This is important for a variety of reasons, but most of all it shows that, once again, when legacy entertainment firms learn how to embrace new technologies, rather than sue them, they're better off. Legacy entertainment companies have basically tried to sue or kill every new technological innovation that somehow challenged new business models. They sued over radio, television, VCRs, cable TV, MP3 players, DVRs and internet video. And yet, once they learned how to use each of those, they realized how great these platforms were in helping to distribute, to promote and to monetize their works.
If Viacom had succeeded in its lawsuits and killed off YouTube, would these movies be available for free online today? I think most people would agree the answer is "no way."
This is a big part of the reason why I get concerned about attempts to shut down businesses that some insist are "nothing but piracy sites." The VCR was "nothing but a piracy tool." The MP3 player was "nothing but a piracy tool." Radio was "nothing but a piracy tool." And YouTube was "nothing but a piracy site." And yet... given the chance to grow and to innovate, these services show that they are successful because they're providing a better product. Suing them out of existence takes away opportunities like this, where companies learn that they can benefit from these (often free!) services to better promote, distribute and monetize their own works. It's easy to think that something that is often used for infringing works in the early days is never going to be anything useful or legitimate, but that ignores the history of innovation in this space. Every new innovation originally looked like a piracy tool. Until it no longer did. Perhaps, rather than trying to kill off every new service, Hollywood should take a lesson and realize that maybe it should be figuring out better ways to embrace them early on, rather than many years later.