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Yesterday we posted our comments to the FCC on net neutrality. Tons of others did as well, but I wanted to call out the comment submitted by Senator Ron Wyden. For two decades, Wyden has been a leading advocate of keeping the internet free from burdensome regulations, thus allowing tremendous innovation to occur. This echoes our position as well. However, both of us have advocated strongly for keeping the net neutrality rules in place. As we've pointed out, such rules are actually necessary in keeping the internet free and open -- because access to the internet has become dominated by just a tiny handful of giant companies with a history of bad behavior towards consumers, and repeated statements about plans to defy the internet's end-to-end principles.However, Wyden is particularly annoyed that FCC chair Ajit Pai uses Wyden's own words out of context to support his plan to do away with the open internet rules. You see, in Pai's Notice of Proposed Rulemaking (NPRM), he quotes a letter that Wyden sent back in 1998 about internet regulations:

Ever since social media sites like Facebook and Twitter became household names here in America, we've occasionally had really stupid debates about just what type of access to those accounts employers should get from their employees. Some states have even passed laws that would allow employers to demand social media passwords from employees and applicants, presumably so that company reps can comb through private messages and posts shared only with the employee's or applicant's friends. If all of that seems stupid to you, that's because it totally is!But it's not remotely as dumb as what the EU has decided to do in regulating corporations such that they are disallowed from viewing public social media information about an applicant unless it directly relates to the job for which they have applied. To be clear, this new regulation is non-binding at the moment, but it will be the basis of data protection laws set to come out in the future. Still, preventing a company from viewing publicly available information doesn't make much sense.

The sharing economy -- actually better-described as a rental economy -- is very much in vogue, inspired by the high-profile examples of Airbnb and Uber. But Western enthusiasm pales in comparison to that of Chinese entrepreneurs, who seem to have taken the view that the model will work for anything. For example, alongside the companies that rent out homes and cars, there are now some that will let you pick up an umbrella in a public spot, use it for a short while, and then return it. At least, that's the theory. But the South China Morning Post reports that the Sharing E Umbrella startup ran into a few problems:

In gaming circles, Capcom is often seen as the company that brought you the Street Fighter and Resident Evil series of games. More recently, Capcom has become notable for its Ace Attorney series of games as well. But in intellectual property circles, Capcom will always be the game studio that pimped SOPA to the public, foisted broken DRM on its customers, and treated Resident Evil customers both to a secondary-market killing DRM that allowed only one play-through of the game and the removal of promised features and only alerted customers to it after sales had begun rolling in. I think it's fair to say, in other words, that Capcom has been known to be almost cartoonishly pernicious.Speaking of which, Capcom also recently shut down a fan-translated play-through of an Ace Attorney game only available in Japan. Consistency!

Deescalation isn't something most police officers want to talk about -- especially those who allow their unions to do all their talking for them. But shootings by police have achieved critical mass, forcing the issue to be confronted by law enforcement officials. There are no national guidelines for force deployment. Local law enforcement agencies don't have much in the way of best practices or standards, pretty much allowing officers to decide how much force is necessary on their own, relative to the amount of "reasonable fear" officers can later credibly swear to in court.Cities and police departments may be forced to confront this sooner, rather than later, if for no other reason than to limit the bleeding -- both literally and metaphorically. Civil rights lawsuits are filed daily and settlement amounts continue to escalate. Officers in the US kill ~1,000 people per year, with that number being completely untethered from the "safety" of the job -- at least as compared to violent crime rates and/or officers being killed in the line of duty. Generally speaking, there's less crime in America than there has been for decades, but cops are "fearing for their safety" like it's 30 years ago.Over the past several days, police station CCTV video of a Bangkok police officer disarming a knife-wielding man has gone viral. Instead of greeting a threat with violence, Officer Anirut Malee greeted the potential attack with words… and neutralized the threat completely with a hug.For this act of bravery, Officer Malee was given an award by Thailand's national police chief. And he's become the unofficial poster boy for deescalation. Every situation is unique, some will argue, and what worked here won't work for every person wielding a weapon. This is true, but in the US almost every situation involving a mentally disturbed person carrying a weapon is handled the same way: with a deployment of force, most of it deadly. So, arguments about nuance are worthless in a law enforcement climate where officers are allowed to calm their nerves by firing guns.And the situation above really isn't that unique. A recent controversial killing involved mental distress and wielded knife. Only this one happened in Seattle, and ended in the shooting death of a pregnant woman.It's not as though the officers went into the situation unprepared. They were responding to Charleena Lyle's call to report a burglary. Audio recordings of the officers included discussions about her mental health issues and previous police interactions. And the seemingly-inevitable shooting was preceded by cops telling Lyle they weren't going to shoot her. This shooting took place under a DOJ consent decree meant to curb the use of excessive force by Seattle officers. It doesn't necessarily indicate the decree isn't working, but it definitely doesn't suggest the Seattle PD is approaching these sorts of situations with deescalation in mind.It's almost impossible to imagine a US law enforcement officer approaching a situation like that confronting Officer Malee without a weapon drawn and a whole lot of shouting. There's very little reason for officers to change their approach -- not with courts continually deferring to assertions of fear by police officers and cops who do deescalate situations being fired for supposedly endangering other officers.But the problem isn't just going to go away. Cities and PDs need to address this now, if for nothing other than purely mercenary reasons. It costs money to defend lawsuits and more money to pay settlements. Even if officials don't really care whether the police maintain a healthy relationship with the communities they serve, they can't keep asking taxpayers to pay for the sins of government employees -- not when there appears to be little effort made by these employees to improve the level of their service.

Earlier today, we published Mike Godwin's excellent post about why why everyone should file a comment with the FCC about their views on net neutrality (and, again, we highly recommend reading Gigi Sohn's excellent advice on what to include in your comment if you do). I see a lot of comments on that post with the defeatist and cynical response of "it doesn't matter, Pai's already decided what he's going to do."This is self-defeating, dumb and wrong for a variety of reasons. First, everyone was saying the same damn thing about Tom Wheeler three years ago, and that turned out to be wrong. Despite being a former lobbyist for the cable and wireless industries, and his initial indications that his proposed rules would be weak and allow all sorts of mischief, Wheeler was eventually convinced to go in a different direction. Second, this goes beyond just this current FCC. Even if (as is widely expected) Pai ignores these comments and reclassifies broadband anyway, there is still a court case that will follow -- as well as Congress considering what to do. In both cases, having strong, clearly thought out arguments concerning net neutrality on the record that we can show Pai ignored will help possibly stop Pai's plan from moving forward. Pai is not the end of the story.Third: it's the right thing to do. This is a chance to make your voice heard and participate in the process -- and you should take advantage of that. If you don't, and then you whine about how no one listens to you and how the bureaucrats and politicians don't pay attention to the people -- then you are a big part of the problem. You have a chance to weigh in here and you should.With that said, below is what I just submitted to the FCC. My comments talk about how we, as a company, have relied on an open internet, but also why the existing rules have shown real promise in increasing competition. But, more important, it also discusses why I changed my mind on this issue. Many people here -- even long term readers -- may forget that in the mid-2000s, Techdirt was against having official open internet rules, either via Congress or the FCC. We were afraid that these rules would be bad and harmful. We worried that they would be written in a way that would stifle internet innovation. And, most importantly, we felt that they were missing the point: that the true problem was the lack of competition in broadband access. If there was a real focus on competition, net neutrality would fade away as a problem, as there would be competitive reasons to keep the internet open.But, as we note in our comment, over the past couple decades things have changed. We've seen less and less competition, and now near-total domination of the broadband market by a few players. Even worse, those players have long histories of anti-consumer behavior and have repeatedly made it clear that they wish to end some of the basic principles of the open internet in order to put in place additional toll booths, charging extra to successful internet companies for merely carrying traffic. Finally, with the rules of 2015, we've seen a decrease in bad behavior by internet providers -- such as throttling Netflix upstream via interconnection disputes (even though that's not technically a part of the open internet rules). Similarly, we've seen that the new rules have inspired third parties like Sonic and Ting to increase their competitive broadband buildouts.Given all of that, while we're generally worried about any kind of "regulation" for the internet, this was a case where the market had clearly failed to deliver a truly competitive and innovative market, and light touch rules as blessed by multiple courts under a Title II regime clearly made sense, and they have been working for the past two years. Changing that now makes no sense. And if we could change our mind concerning such rules, so can the current FCC.

The weird and persistently silly copyright reform process in the EU Parliament continues to get more and more bizarre and stupid. Last month, we told you about the first committee vote, which we feared would be terrible, but turned out to be only marginally stupid, as the worst parts of the proposal were rejected. Now, two more committees -- the Culture and Education (CULT) and Industry, Research and Energy (ITRE) Committees -- have voted on their own reform proposals and the results are really, really bad if you support things like culture, education, research and the public. And, yes, I get the irony of the fact that the Culture and Education Committee in the EU just declared a giant "fuck you" to culture and education with its vote.Among the many problematic aspects approved by these committees is a filter requirement that would block users from uploading legally obtained media into the cloud. This makes no sense -- especially given that the EU already has additional "you must be a pirate" taxes on situations where individuals are making copies of their legally acquired works.And then there's the whole "snippet tax" which legacy newspapers are demanding because they've failed to adapt to the digital age, and they want Google News to send them money for daring to send them traffic without monetary compensation. The whole concept is backwards... and here, it's been expanded. As Copybuzz explains:

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The global war against privacy tools, VPNs and encryption continues utterly-unhinged from common sense, and the assault on consumer privacy remains a notably global affair. Reddit users recently noticed that India's fifth largest ISP, YOU Broadband, is among several of the country's ISPs that have been trying to prevent customers from using meaningful encryption. According to the company's updated terms of service, as a customer of the ISP you're supposed to avoid using encryption to allow for easier monitoring of your online behavior:

Despite DHS hints that foreign airports were falling down on the "security theater" job, it appears a few customs officials are more than happy to engage in local versions of "extreme vetting." New Zealand customs officials are way ahead of the DHS in this department, having turned airports into rights-free zones where nearly anything can happen... to travelers.

Today is the deadline for the first round of the FCC's comment period on its attempt to roll back the 2015 open internet "net neutrality" rules. The deadline is partly meaningless, because there's a second comment period that is technically to respond to earlier comments -- but allows you to just file more comments. However, it is still important to make your voice heard no matter which side you're on. We'll be posting our own comments later today, but first, we wanted to share Mike Godwin's thoughtful discussion on why you should comment and why you should provide a thoughtful, careful "quality" comment, which he first posted to the R-Street blog, but which is being cross posted here.If you count just by numbers alone, net-neutrality activists have succeeded in their big July 12 push to get citizens to file comments with the Federal Communications Commission. As I write this, it looks as if 8 million or more comments have now been filed on FCC Chairman Ajit Pai's proposal to roll back the expansive network-neutrality authority the commission asserted under its previous chairman in 2015.There's some debate, though, about whether the sheer number of comments—which are unprecedented not only for the FCC, but also for any other federal agency—is a thing that matters. I think they do, but not in any simple way. If you look at the legal framework under which the FCC is authorized to regulate, you see that the commission has an obligation to open its proposed rulemakings (or revisions or repeals of standing rules) for public comments. In the internet era, of course, this has meant enabling the public (and companies, public officials and other stakeholders) to file online. So naturally enough, given the comparative ease of filing comments online, controversial public issues are going to generate more and more public comments over time. Not impossibly, this FCC proceeding—centering as it does on our beloved public internet—marks a watershed moment, after which we'll see increasing flurries of public participation on agency rulemakings.Columbia University law professor Tim Wu—who may fairly be considered the architect of net neutrality, thanks to his having spent a decade and a half building his case for it—tweeted July 12 that it would be "undemocratic" if the commission ends up "ignoring" the (as of then) 6.8 million comments filed in the proceeding.

This week, after we talked about a worrying DMCA ruling for Zazzle, one commenter suggested that selling merchandise eliminates safe harbors, and compared it to an anime fan site. An anonymous reply won most insightful comment of the week by laying out the problems with that comparison:

Five Years AgoThis week in 2012, we saw the folks who had recently been defeated by the internet try to sneakily get their way. In Europe, that took the form of resurrecting the all-but-dead ACTA inside the Canada-EU Trade Agreement (and writing clueless columns, of course). In the US, it was Lamar Smith trying to sneak SOPA through in bits and pieces in other bills, seemingly having learned nothing from the experience. The public wasn't oblivious though, and soon a backlash led to some of the problems of CETA being fixed and Smith's new bill falling apart.Ten Years AgoThis week in 2007, webcasters lost their fight to delay a big royalty hike when the court denied the requested stay, but then SoundExchange surprised us all by actually being just a little bit decent and holding off on actually enforcing the royalties. Sony BMG tried to redirect some of the blame for its rootkit fiasco by suing a company that supplied one of the pieces of copy protection software, while the silly DRM game of AACS was serving only to annoy legitimate customers. And surprise, surprise: a study found ripped DVDs weren't even a big source of piracy compared to file sharing.Fifteen Years AgoThe battle over webcasting had already begun five years earlier in 2002, when it was clear that the labels wanted internet radio stations to go away. Meanwhile, after much concern about various pieces of bad internet legislation, it looked like Congress wasn't going to be moving on any of it anytime soon — but that didn't mean we could ignore a new bad bill that would basically eliminate people's fair use rights, which was unsurprising at a time when it looked like only one person in all of Congress really understood or cared about user rights.Also this week in 2002, in a move that would further cement them both as tentpole internet platforms for years to come, eBay bought PayPal.

Trump's pick to head the FBI -- former DOJ prosecutor Christopher Wray -- appeared before the Senate to answer several questions (and listen to several long-winded, self-serving statements). Wray's confirmation hearing went about as well as expected. Several senators wanted to make sure Wray's loyalty lay with the nation rather than the president and several others hoped to paint him into a Comey-bashing corner in order to belatedly justify Trump's firing of his (potential) predecessor.Wray also spent a lot of time not talking about things he claimed he was unfamiliar with -- covering everything from presidential directives, to Donald Trump Jr.'s Russian emails, to questions about CIA human rights violations that went unnoticed/unprosecuted during his tenure in the DOJ.Sen. Orrin Hatch -- as he did during a recent Comey hearing -- brought up the subject of encryption. Hatch claims he "agrees with Tim Cook," which places him in opposition to Sens. Feinstein and Burr. It also puts him in opposition of the possible new FBI boss, who had this to say about encryption. (h/t Politico's Eric Geller)

The last thing anyone heard about Five Eyes surveillance partnerships via official channels was more than seven years ago. In the intervening years, leaked documents have shed a little light on the information sharing Five Eyes countries (US, UK, Canada, Australia, New Zealand) engage in. But the last Five Eyes agreement released is now more than 60 years old.

Man's best friend remains a cop's worst enemy. At least, that's what the numbers appear to show. Cops claim the job is dangerous -- hence the ~1,000 people killed every year by law enforcement officers. Trigger-happy cops: "Hold our beer."

About a month ago, Buzzfeed's founder and CEO, Jonah Peretti summed up my feelings about watching old news media organizations running around everywhere blaming Google and Facebook for their own failure to innovate:

Oh boy. It's no secret that the Australian government -- led by George Brandis (who has made it abundantly clear he has no clue what a VPN is or what metadata is) -- is pushing strongly for mandated backdoors to encryption. At this point, it's beating a dead horse, but this is a very, very bad idea for a whole host of reasons -- mainly having to do with making absolutely everyone significantly less safe.And it appears that Brandis' ignorance has moved up the chain of command. Australian Prime Minister Malcolm Turnbull has now put out what may be the single dumbest statement on encryption yet (and that's a pretty high bar). After being told yet again that safe encryption backdoors violate basic mathematics, Turnbull became super patriotic about the ability of Australian law to trump mathematics:

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Since at least 2009, the DHS has asserted a legal right to copy/search the contents of anyone's electronic devices at the border. Its privacy assessment said no one has much privacy, at least not near US borders. Building on years of judicial national security deference, the DHS has recently expanded its searches of electronic devices, eliminating most of its adherence to the Fourth Amendment in the process. If your devices wander into the country's Constitution-free zones, you can expect to suffer diminished expectations of privacy.Noting that border searches of electronic devices were increasing exponentially (more searches in February 2017 alone than in all of 2015), Senator Ron Wyden did two things: introduced a bill creating a warrant requirement for border electronic device searches and asked the CBP (Customs and Border Protection) about its new demands for social media/email account passwords.The DHS has responded [PDF] to Wyden's questions, and the answers are a bit surprising.

You may have noticed that things aren't going particularly well for the traditional cable TV industry. Ratings for many channels are in free fall, the rate at which customers are cutting the traditional TV cord is accelerating, and the number and quality of competing streaming services is only growing. Cumulatively, this has forced many previously myopic cable and broadcast executives to stop denying the obvious and to candidly admit there's an actual market (r)evolution afoot, even if most of them still aren't quite exactly sure how to adapt to it.And while the headlines are often filled with dire warnings about traditional cable TV being "doomed," that's not really true. Cable operators still lay claim to somewhere around 98 million paying customers. And keeping these users from fleeing to competing streaming services really isn't that complicated. These companies just don't want to do what's necessary. Namely, listen to their customers, offer more flexible and convenient services, shore up their atrocious customer service, and finally begin seriously competing on price.Many traditional cable providers have responded by offering a new suite of so-called "skinny bundles" that profess to offer lower costs and to offer greater channel flexibility. But more often than not old habits die hard, and the industry often saddles these offerings with numerous murky restrictions, or layers of misleading fees. The end result is that these offers either aren't really competitive, or wind up costing nearly as much as traditional cable.Case in point: Charter (Spectrum) is currently hyping a new $20 bundle of a few dozen channels they're testing in a handful of markets. Usually these trials exist to give the impression the cable company is being innovative, but are never launched nationwide for fear of mass-cannibalization of traditional customers downgrading from more expensive plans. But most news outlets were quick to lavish praise on Charter's new offering, many posting the ad for the $20 price point alongside their reports on the new service:Except that "$20" isn't really $20, since the cable industry just can't let go of some bad habits.Trial participants who actually have tried the service say it not only doesn't work all that well, but Charter has chosen to hide a number of obnoxious fees that dramatically jack up the price of the service. Of particular note is the fact that Charter saddles the offering with a $6 per month "broadcast TV fee." As we've noted previously, this increasingly-utilized fee simply takes some of the cost of programming and buries it below the line. Why? It lets the cable provider falsely advertise a lower price. And despite being false advertising, regulators from both parties traditionally haven't given much of a damn.Some companies, like Comcast, have gone so far as to try and claim the broadcast TV fee is just their way of being transparent with consumers, since nothing quite says transparency like customers having no idea what a service they're buying will actually cost. But as the market floods with alternatives from the likes of Hulu, YouTube, Sling TV and more increases, cable and broadcast executives are eventually going to have to realize that the threshold for tolerating this kind of bullshit -- in the face of real competition -- isn't going to be quite at high as they're accustomed to.

The DHS has decided air travel is the unsafest thing of all. In the wake of multiple fear mongering presidential directives -- including a travel ban currently being contested in federal courts -- the DHS has introduced several measures meant to make flying safer, but in reality would only make flying more of a pain in the ass.The government has argued in court that flying is a privilege, not a right, and the DHS seems hellbent on making fliers pay for every bit of that privilege. We've seen laptop bans introduced as a stick to push foreign airports to engage in more security theater and a threat to rifle through all travelers' books and papers to ensure nobody's reading explosive devices.Now, the DHS is going to be scanning everyone's faces as they board/disembark international flights.

Techdirt readers will probably recall a long-running saga involving corporate sovereignty, $500 million, the US pharma company Eli Lilly, and drug patents. In its claim against the Canadian government, made using NAFTA's Chapter 11, Eli Lilly insisted it should have been given some drug patents, despite Canada's courts finding that they had not met the requirements for patentability -- specifically that there was no evidence that the drugs in question provided the benefits in the patent. Eli Lilly said that Canada was being unreasonable in setting a slightly higher bar than other countries by demanding that a patented drug should actually do something useful. As Mike reported back in March, even the lawyers that made up the corporate sovereignty tribunal hearing this case agreed that Canada was within its rights to take this view. They not only dismissed the claim, but ordered Eli Lilly to pay Canada's legal fees.This was a huge win for Canada in particular, and governments in general. At the time, it all felt a little too good to be true. And now seems it was: as infojustice.org reports, the Supreme Court of Canada has just overturned decades of precedent -- and implicitly the Eli Lilly ruling -- by making it easier for Big Pharma to gain patents on medicines that don't really work:

If you're going to fight in the Cyber Front, you're going to want the most up-to-date office chairs. Here's an unlikely use of federal tax dollars, as spotted by the EFF's Dave Maass: "FBI Cyber Security Furniture."Disappointingly, the FBI isn't actually looking for something along the lines of Matrix dental exam chairs for office drones to monitor... uh... multiple monitors during crucial cyber operations. Instead, the FBI is looking for standard office furniture to furnish its new Colorado cyber security office.But the scope of work doc [PDF] indicates not just any office furniture will do. On the FBI's Cyber Titanic, reshuffle-ability of deck chairs is crucial.

At the tail end of June, The Presidential Advisory Commission on Election Integrity turned heads when it began asking states for confidential voter data. The Commission was formed via executive order back in May as part of a supposed effort to crack down on what the Trump administration has insisted (without any supporting evidence) is an epidemic of widespread voting and voter registration fraud. As part of the data collection the Trump administration demanded voter names, political affiliations, addresses, dates of birth, criminal records, the last four digits of their Social Security numbers, and more.But it didn't take long for the entire effort to unravel. The commission's first misstep was asking states to submit this personal data via unencrypted e-mail. The commission also offered states the ability to deliver the data via a system called SAFE—the Safe Access File Exchange. Traditionally used by the military for the transfer of unclassified files too large for email, the service does allow encrypted transfers via civilian computers, but would have required numerous technical steps and guidance (the commission didn't take or offer) to adequately protect the data's integrity:

So we've seen some unique and amusing trademark disputes in the past, but this one beats them all. Canadian lawyer Rob Kittredge got to send a rap video cease-and-desist to Coca Cola. Yes, you heard me correctly. A rap video cease and desist. Not a cease and desist letter about a video. The video is the cease and desist letter. Check it out:And... yes, it appears that Rob is, in fact, the lawyer in the video as well. As background -- if you somehow missed it -- a few years ago, there was a virally popular rap song and video, by Brendan "B.Rich" Richmond, called Out for a Rip, spoofing Canadian culture/stereotypes. It got over 12 million views, and has become a bit of an anthem.So, yeah. Coca Cola is using the phrase "out for a rip" on its Coke bottles and Richmond and his lawyer Kittredge decided the best way to respond was to write a song calling out Coca Cola on this and then recording a whole video. At the end of the video there's an actual letter (part of which is dictated in the song itself) which is also pretty damn amusing:

The cable and broadcast industry goes to some amusing lengths to downplay cord cutting and streaming competition's impact on ratings and subscriber totals. Initially the impulse was just to insist that cord cutting wasn't real. When the data made outright denial impossible, the industry began insisting cord cutting was only something done by irrelevant nobodies living in mom's basement or Millennials who would see the error of their ways once they procreated. Of course data repeatedly showed that these people were the norm, and now we're looking at potentially one of the biggest quarterly subscriber losses in television history.As ratings have reflected the industry's dying cash cow, they've also taken consistent aim at viewership measurement systems as well. A bone of particular contention has been Nielsen, which is stuck between trying to accurately measure the damage and cater to myopic cable and broadcast clients that can't hear well with their heads buried firmly in the sand. A few years ago, Nielsen was forced to stop publicizing the rise in broadband-only (not TV) households. More recently, ESPN tried to publicly shame Nielsen when the company accurately highlighted the massive subscriber exodus happening at the channel.But the cable and broadcast industry has been engaged in some other notable shenanigans to try and protect the illusion that everything is going swimmingly. The Wall Street Journal indicates that the industry has increasingly been going so far as to intentionally misspell their programs in program listings. Why? Because when they know a show is going to see a ratings dip, listing it under another name prevents its core listing from being impacted in the Nielsen ratings:

Since 2004 we've talked about the effort to take unlicensed spectrum, previously used by TV stations, and make a new wireless broadband delivery alternative. Dubbed "white spaces" (or occasionally and misleadingly "super WiFi") the technology has the potential to provide less expensive, niche connectivity in areas incumbent broadband providers are unwilling to upgrade. Even then, incumbent ISPs have consistently tried to kill the technology, as has the National Association of Broadcasters (NAB), whose members aren't keen on an entirely new broadband and TV delivery mechanism they won't have control over.This week, Microsoft punctuated years of global trials of this technology with the announcement that it would be deploying white space broadband to around two million Americans in 12 states (New York, Texas, Washington, Virginia, Michigan, Maine, Arizona, Georgia, Kansas, North Dakota, South Dakota, and Wisconsin) over the next five years. According to Microsoft, the project should cost somewhere around $10 billion, and provide another layer of competition in some of the areas that need it most:

As you probably know (because it's almost unavoidable across the web), today is the "Day of Action" on behalf of net neutrality. Tons of other sites are participating in various ways. Many are popping up widgets, warning you of how crappy the internet might become if broadband access providers were allowed to create the kind of internet they dream of -- one in which they are the gatekeepers, and where they get to put tollbooths on services trying to reach you. But you already know about all that, because you already read Techdirt, and we've been talking about this for over a decade. Many sites are encouraging you to comment on the FCC's proceedings -- which you absolutely should do (even as the FCC itself is making a mockery of the commenting process, by allowing bogus and fraudulent comments in.However, for this day of action, I wanted to focus people here on two key things. First, yes this does matter. I know that some of you think you're oh-so-cool and therefore you take the cynical approach of "it doesn't matter, man, the fix is already in" or however you phrase it, but that's bullshit. This stuff does matter. And I know that the cynical folks and the DC insiders absolutely hate when people bring this up, but other situations in the past -- including SOPA and the last net neutrality rule making -- were both situations where the "savvy" absolutely knew what was going to happen... and they were totally wrong. If enough people speak up and make things clear, change can and does happen. And if you still want to remain cynical, consider this: being cynical and insisting that nothing you do will matter guarantees that nothing you do will matter and by default helps ensure the shitty situation you're so cynical about remains shitty. Speaking up at least contributes to the possibility of things going in a better direction.Second: while you absolutely should go and file FCC comments (and I highly recommend first reading this guide to filing impactful FCC comments from a former top FCC staffer), this fight is going to end with Congress one way or the other. Two months ago we wrote about the real game plan to destroy net neutrality, and you can see it playing out in realtime. Ajit Pai's move to get the FCC to repeal the rules is an effort to force the hand of Congress, and make it come in and create new regulations. Indeed, if you look around, it's not hard to find lots of opeds from telco-funded folks about how "Congress should solve this" (all of which pretend to support net neutrality). And, yes, this is the kind of thing that Congress should solve -- if we trusted Congress to actually do what was in the interest of the public, rather than the interests of the broadband access providers. But, right now, you shouldn't. After all, this is the same Congress that happily voted to kill broadband privacy rules, and then seemed shocked that this upset people.So, the fight at the FCC matters, but the end game is Congress. And we all know that bad stuff can happen in Congress (especially when it comes to broadband providers writing legislation themselves). But (and this is the important part): the best way to stop bad stuff from happening in Congress is to speak up. This is what killed SOPA five years ago, even though a ton of people in Congress had signed on as co-sponsors. We've talked about this in the past: lobbyists win in Congress all the time, but only on issues where the public isn't speaking up. Congress relies on lobbyists to fill in the gaps (and sometimes that's even okay!). The problems come in when the public interest and the lobbyists' interest diverge -- and if the public isn't speaking up, then the lobbyists win. But if the public is speaking up -- and doing so loudly -- it can stop bad bills in their tracks (witness Congress's recent inability to pass any major bad legislation).So, not only should you be commenting for the FCC's benefit, you should be calling your Representative and Senators and letting them know that if they support undermining net neutrality in any way -- even with bogus bills that pretend to support net neutrality, while really undercutting it -- then you'll no longer support them. If you can, set up meetings. Make Congress aware that this matters to you deeply. Make them aware that if they support the internet, the people on the internet will support them back. Make Congress aware that this is an issue that matters and that ignoring the will of the public (most of whom -- on both sides of the partisan aisle overwhelmingly support an open internet) will not go unnoticed by the wider internet.Techdirt only exists because of the open internet. When I set it up almost 20 years ago, I didn't have to go and get permission. I didn't have to go and beg (or pay!) AT&T or Comcast to make sure people could reach the site. It wasn't like TV or publishing where I had to get approval from some giant gatekeeper to exist. I just got to set stuff up and now millions of people have visited and supported us over the years. The internet is wonderful because it's not TV and there aren't gatekeepers. Let's keep it that way.

There has been much in the way of focus on all the different ways Congress has devised to fight with itself as of recent, with most of that revolving around stupid partisan bickering and political posturing. Still, there are real proposals on the table, and currently the 2018 defense budget is one of them. We've already talked about some recent changes in DoD recruitment strategies that seek to get with the times, as it were. But where those changes were made to stave off dwindling rosters of soldiers at CYBERCOM, the House proposal for 2018 includes the creation of a brand new military branch.

A really weird decision with some implications for DMCA safe harbors has come out of a US district court in California. The case revolves around paintings and pictures licensed by Greg Young Publishing International [GYPI], several of which appeared on Zazzle's website and, consequently, were turned into physical reproductions (mugs, t-shirts, etc.) via Zazzle's automated print-on-demand process.After some discussion about which prints GYPI actually controls for infringement claim purposes, the court gets down to addressing the supposed infringement. Discussing the safe harbor provisions, the court finds Zazzle qualifies for these protections. Sort of. The court says Zazzle qualifies as a provider of online services and, thanks to GYPI never sending any DMCA notices, it had no knowledge of the infringement.That's where the court's reasoning starts swimming in non-concentric circles. As Eric Goldman points out, the court's legal math doesn't add up when it decides there's something Zazzle could have done to prevent the alleged infringement. Goldman comments on the court's strange determination:

If you read our post yesterday, you know that Techdirt friend Rob Reid is releasing his latest novel, After On by publishing the first near-half of the book for free on Medium. As promised, today we're joined by Rob on the podcast for a discussion about the book, the launch, and what it's like to publish science fiction in 2017. And don't forget to get your copy of the book!Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

An argument that we've made for years is that for all the whining about how the legacy entertainment industry insists it needs DRM, adding DRM takes away value. It limits the content/games/software/etc. that people purchase a license to and therefore limits the value. You don't need an economics degree to recognize that providing less value decreases how much people are willing to pay (and how many people are willing to pay). Thus, there's at least some economic force when using DRM that decreases the potential market for DRM'd offerings. Supporters of DRM will likely counter with some version of the argument that this decrease in value/addressable market is okay, because it's less than the expected decrease in the potential market that happens when "OMG I CAN GET A PIRATED VERSION FOR FREE!?!?!?!??" enters the market. I'm not entirely convinced that's true -- as time and time again, we've seen that people are more than happy to pay for (1) official versions in order to support creators they know, appreciate and trust and (2) especially when it comes with other benefits beyond just the content.But, one thing that hasn't really ever been made clear is just how much DRM depresses markets. Until now. Some researchers at the University of Glasgow have just released some preliminary research (found via Cory Doctorow and EFF) specifically looking at the market for DVD players -- and how things work when they come with built in DRM and without it. The findings are pretty spectacular. People are much more willing to spend more money to be able to avoid DRM.

You'd be hard pressed to find a bigger enemy of net neutrality than the fine folks at AT&T. The company has a history of all manner of anti-competitive assaults on the open and competitive internet, from blocking customer access to Apple FaceTime unless users subscribed to more expensive plans, to exempting its own content from arbitrary and unnecessary usage caps while penalizing streaming competitors. AT&T also played a starring role in ensuring the FCC's 2010 net neutrality rules were flimsy garbage, and sued to overturn the agency's tougher, 2015 rules.So it's with a combination of amusement and awe to see the company's top lobbying and policy head, Bob Quinn, pen a missive over at the AT&T website proudly proclaiming the company will be joining tomorrow's "day of action protest" in support of keeping the existing rules intact. According to Quinn, the company still opposes the FCC's popular 2015 consumer protections, but wanted to participate in the protest because that's just how much the sweethearts at AT&T adore the open internet:

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Facebook is at it again, hoping to make law enforcement agencies second-guess their secrecy demands. It recently successfully challenged gag orders attached to 381 warrants served to it by Manhattan DA Cyrus Vance's office. It also forced Minnesota law enforcement to retract warrants seeking information from a police shooting victim's girlfriend's Facebook account by challenging the secrecy added to the demand for data.Court documents obtained by Buzzfeed show the social media giant is taking on another gag order -- this one possibly related to arrests stemming from protests during Trump's inauguration.

With this week's net neutrality protests being joined by the likes of Google, Facebook, Amazon, Netflix, Reddit and hundreds of startups and small companies, the cable and broadcast industry appears to be getting a little nervous. So far they've had a relatively easy time convincing FCC boss Ajit Pai to not only dismantle the rules, but to blatantly ignore the massive public support the rules enjoy. Pai's even turned a blind eye as somebody used a bot to stuff the agency's public comment system with bogus support for the telecom industry's horrible idea.The media coverage of this week's protest risks popping the narrative bubble that there's significant support for killing net neutrality. So the telecom-industry funded think tank FreedomWorks apparently came up with an ingenious plan to launch, well, something that kind of looks vaguely like a counter protest:

So we've been talking for months now about how the Trump FCC has quite intentionally turned a blind eye to fraudulent comments being posted to the agency's net neutrality proceeding, since the lion's share of these bogus comments support the agency's plan to gut the popular consumer protections. Numerous people say they've had their identities lifted by somebody that has used a bot to populate the agency's comment system with hundreds-of-thousands of fake comments supporting the telecom-industry backed effort. Calls by these folks (and a few Senators) for an investigation have been simply ignored.I'm among the folks that had their identities used to generate bogus support for killing the rules. My case is, however, a bit more tailored and personal. Back in April, somebody posted this comment to the FCC comment system pretending to represent me and one of the websites I write for. In it, my obtuse doppleganger falsely claims I run an unlicensed political PAC, then proceeds to prattle through a series of repeatedly, painstakingly debunked claims about how the agency's arguably-modest rules somehow stifle investment, harm orphans, and damage the time-space continuum:

It's been a little over a year since the Steam platform finally rolled out a true refund program for digital game purchases, with Microsoft quickly following suit. While gamers rejoiced at the news that every game purchase wasn't some form of a gamble, game developers reacted in a range generally between being nonplussed to vocally angry or fearful. The overall concern was that this move to shift the balance of Steam's supportive stance towards the consumer and away from the game developer would negatively impact the bottom line of developers now faced with a negative column in their sales metrics.Yet there are still very smart people in the gaming industry. One of those people appears to be Garry Newman, the developer for Rust, a survival game available on Steam's platform. Rust has been refunded a staggering 300,000-plus times, resulting in nearly four-and-a-half million dollars in refunds. But rather than freaking out and lashing out at the Steam refund policy, Newman instead decided to publish the refund statistics for everyone to see. And then he went on to explain why he thinks the refund policy for his game is actually a good thing.

When he was head of GCHQ, Robert Hannigan said some pretty clueless things about the Internet and encryption. For example, in 2014, he accused tech companies of 'facilitating murder', and joined in the general demonization of strong crypto. Last year, he called for technical experts to work more closely with governments to come up with some unspecified way around encryption. Nobody really knew what he meant when he said:

Almost exactly 17 years ago, we wrote about an interesting experiment in the movie world, in which the film Chicken Run freely chose to put the first 7 minutes of the film online (in my head, I remember it being the first 20 minutes, but I'll chalk that up to inflation). I thought it was a pretty clever experiment and am still surprised that this didn't become the norm. The idea is pretty straightforward -- rather than just doing a flashy trailer that may give away much of the movie anyway -- you give people the beginning of the actual movie, get them hooked, and convince them it's worthwhile to go pay to see the whole thing. Of course, that only works with good movies where the beginning hooks people. But... it's also interesting to think about whether or not this kind of thing might work for books as well.In this always on world, where some fear that people are so hooked on short attention span bits of information raining down from Facebook, Twitter and Snapchat, there's a reasonable concern that people just aren't willing or able to disconnect for long enough to actually read a full book. Some argue that we may be reading more, but getting less out of all of this. But now author/entrepreneur Rob Reid and Random House are experimenting with something similar. If they have to convince people to put down the internet to read a full book, why not go to the internet first. Rob has announced that he (and Random House) has teamed up with Medium to publish the first 40% of his latest novel, After On, which is coming out in full on August 1st.Now, you may recall, five years ago, Rob came out with a fun book called Year Zero, a hilarious comic sci-fi story about aliens needing to destroy the earth... because of massive copyright infringement (no, really). With that book, we were able to publish a short excerpt, but that isn't always enough to get people hooked. With After On, a massive chunk of the (admittedly massive!) book will be published online in a dozen segments over the next few weeks leading up to the release of the actual book (the first few segments are entirely free -- and after that, they want you to become a "member" of Medium, but you can get your first two weeks free for membership -- or you can just go buy the book by that point.Rob has written a blog post talking about this experiment and what went into it -- and he'll also be on the Techdirt podcast tomorrow to talk more about it. In this book, while not about copyright, it does touch on a number of other issues that we frequently write about here, including patents, privacy, AI, terms of service and... the general nature of startup culture. The book is super interesting and engaging, but this experiment is interesting in its own way as well:

Early last year, a federal court judge decided filming police officers was not protected by the First Amendment. How the court arrived at this conclusion was by narrowly defining the First Amendment as only protecting "expressive" speech. Simply documenting activity was somehow not covered by the First Amendment, according to the government's theory (the city of Philadelphia, in this case).According to the district court, expression is key. It was the wrong conclusion to reach, but it helped some Philadelphia police officers escape being held accountable for retaliatory arrests of citizen photographers. Even worse, it created a chilling effect for citizen photographers in the court's jurisdiction, giving them a publish or die be arrested mandate.At that time, it seemed unlikely the Third Circuit Appeals Court would overturn its own precedential rulings. The Appeals Court had never gone so far as to establish a First Amendment right to record public officials. In fact, precedent had mostly sided with law enforcement officers who had been sued for shutting down recordings. An affirmation on appeal would have resulted in a circuit split that could only be resolved if and when the Supreme Court chose to take up a case directly related to this issue.Fortunately, the Third Circuit Court has reversed the lower court's finding, at least in terms of the First Amendment. This adds to the list of circuits already viewing recordings of cops as protected speech. The issue appears to be (slowly) resolving itself without the Supreme Court's assistance.The ruling [PDF] is a fantastic read, at least as far as its handling of the First Amendment goes. The opening makes it clear the lower court screwed this up badly. [h/t Brad Heath]

So if you hadn't heard, Wednesday will bear witness to a major protest (both online and off) against the FCC's plan to kill popular net neutrality protections here in the States. Spearheaded by consumer advocacy group Fight for the Future, the "day of action" is an effort to bring attention to the attack on net neutrality, to drive more people to the FCC's comment proceeding, and to generate a wave of backlash supporters hope will mirror the SOPA/PIPA uprising. Countless small companies, consumer groups, and many large companies (including Amazon, Reddit, and Netflix) will be participating in the protests.But also joining the proceedings are several Silicon Valley giants that, in recent years, have not just been apathetic to genuine net neutrality, but in many instances have actively worked to undermine the concept. While they didn't make a formal announcement (that would have been too bold), both Google and Facebook reps are quietly telling news outlets they'll be participating in the protests. The depth of their involvement isn't clear, but managers of the campaign say they're obviously happy with the support all the same:

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The travel ban, extreme vetting, and vastly increased deportations of undocumented immigrants were all sold to us under the theory these methods would eject the worst of the worst from our country and keep those worsts from returning. In the president's own words, these tactics were not supposed to turn the entire US into Maricopa County, Arizona with a few thousand mini-Sheriff Arpaios running "get the brown out" fiefdoms.That isn't how any of this has turned out. The travel ban the government's lawyers insist isn't a ban is being contested in court, even as the president himself repeatedly refers to it as a "ban." Extreme vetting has morphed into greater intrusiveness for everyone at the borders, even US citizens. The TSA -- under new DHS leadership -- has raised and abandoned a variety of new boarding measures, each one seemingly more invasive than the last.Mission creep is the mission, as Immigrations and Customs Enforcement has (inadvertently) made clear.

We've talked for a while how while there has been a lot of hype placed upon the nation's scattered but modest deployment of gigabit networks, broadband in countless parts of the country is actually getting significantly-less competitive. That's thanks in large part to the nation's phone companies, which have increasingly refused to pony up the necessary costs to upgrade their aging DSL networks at any scale. Instead, many have shifted their focus either to enterprise services, or as in the case of Verizon, into trying to peddle ads to Millennials after gobbling up AOL and Yahoo.As a result, cable has established a growing monopoly over broadband across massive swaths of the country. This reduced competition has resulted in rampant price hikes (usually in the form of hidden surcharges or arbitrary and unnecessary usage caps and overage fees). But it also has eliminated any real incentive to keep rates low or repair what's statistically some of the worst customer service in any industry in America.A new study by several consultants for the broadband industry offers a little more insight into the real-world result of the sector's ongoing competition problem. According to the report by Economists Incorporated and CMA Strategy Consulting, there's a fairly staggering number of broadband consumers that don't see any real competition whatsoever, especially at the FCC's standard definition of broadband (25 Mbps down, 3 Mbps up):

Earlier this week, the New York Times raised the alarm -- and vivid Stuxnet imagery -- about hackers targeting US nuclear facilities. The DHS raised its own alarm -- one with a specific color -- about the same hacking attempts.

We've got a double-winner this week, taking first place on both the insightful and funny sides. The comment came from kallethen in response to the State Department's strange and worrying attempt to spark a fake Twitter feud about the history of intellectual property in America, and pointed out that one of their prime examples was a strange choice:

Five Years AgoCharles Carreon kicked off this week in 2012 by continuing to dig deeper, while Matt Inman and IndieGogo hit back. He then tried to intimidate a parodist with a bizarre list of threats and a DMCA takedown. But by Tuesday, he had dismissed his lawsuit (while still claiming victory somehow), only for things to take a truly bizarre turn when an apparently fake lawsuit was filed against him under Inman's name.Ten Years AgoThis week in 2007, Russia shut down Allofmp3, a new legal spat raised the question of whether embedding a YouTube video can be infringement, and restaurants were beginning to really grapple with independent, amateur reviewers. The MPAA and RIAA were still up to their dirty investigative tricks while the NFL was trying to dictate the contours of fair use. And this was the week that Bill Gates ceased to be the richest man in the world.Fifteen Years AgoThis week in 2002, the RIAA was just starting up its campaign of going after the individual users of P2P sharing networks, while webcasters were being driven underground by onerous new royalty rates and a Danish court deeming it illegal to deep-link to a newspaper website. As WiFi continued to ascend, ISPs like Time Warner were starting to crack down on open hotspots — and as text messaging continued to ascend, the Methodist Church was joining the early crowd of people decrying it for getting in the way of social interaction.

The Seventh Circuit Appeals Court seems a bit tired of the district court's shit. For the second time, it's remanding a case involving a convicted law enforcement officer because the lower court refuses to give the former officer the punishment he deserves. Terry Joe Smith has twice been sentenced for subjecting two arrestees to intentional and unreasonable excessive force. The facts of the case are this, as recounted by the Appeals Court's second run [PDF] at the same problem.