William Carleton, Counselor @ Law

Broadband Acting Like Cable?

From the "I'm sure I must be missing something" department this morning: a webpage my youngest son brought to my attention, as he shuttled back and forth from his Xbox and the family desktop trying to find a code to convince whatever was blocking his Microsoft account from accessing ESPN3 that we have Comcast for an ISP, not Time Warner.

Now, I don't regard cable television as as a Constitutional or human right.

Access to broadband, however - that is a definitely a characteristic of freedom and human liberty.

If Xbox has contracted with Disney, or whomever, and Xbox is a service brought to you on broadband, who is any ISP to take issue with that? Time Warner can block Disney on their cable service all day long, but the idea that they would use their broadband pipes as leverage - that seems dangerous.

Again, I've got the nagging feeling I must be missing something obvious, because it really can't be the case that a utility provider can discriminate like that. Can it?

Timing of the Netflix Price Hike

It's probably just coincidence, but Netflix's price hike follows on the heels of Hollywood's pact with ISPs to turn the latter into corporate copyright enforcers.

The Netflix story I read in the NYTimes says the price hike has to do with accelerating the transition of Netflix customers from DVDs to streaming movies on the web. With a 60% hike in the price of the subscription that includes DVDs, more users (including Roger Ebert) will opt to go streaming-only.

The Hollywood pact I'm referring to is the agreement among big media companies and ISPs (how I wish I better understood big time antitrust law) announced last week that obligates ISPs to degrade bandwidth - slow a subscriber's service to a crawl - whenever the lobbying arms of the music and movie industries (the RIAA and MPAA, respectively) finger someone for file sharing. Now, this pact is styled as a system of "alerts" that kindly inform unwitting subscribers that they may be unwitting pawns in some hacker's criminal enterprise - the PR around it even speaks of the scheme as flowing from a respect for subscriber's rights! - but the substantive agreement underlying the spin says ISPs are obligated to take "mitigation measures" to slow the speed of allegedly illicit downloads down to a crawl.

Here's one of the service degredations ISPs will undertake at the behest of former Senator Christopher Dodd's new employer (the MPAA):

"temporary step-down in the Subscriber’s service tier to (1) the lowest tier of Internet access service above dial-up service that the Participating ISP makes widely available to residential customers in the Subscriber’s community, or (2) an alternative bandwidth throughput rate low enough to significantly impact a Subscriber’s broadband Internet access service (e.g., 256 - 640 kbps)"

But I digress.

The dots I see that squeak out to be connected are these:

• ISPs will be more aggressive about shutting down streams for which a corporate entity is not being paid; and
• Netflix doubles down on efforts to move its paying customers online.

Again, I'm not saying there is a connection. It's just that there is a connection.

Photo: William M. Vander Weyde.

Corporate Vigilantes Not Waiting on Senator Leahy's Bill to Self-Police Peer to Peer Sharing

Big ISPs have agreed to degrade service to customers selected by the Recording Industry Association of America (RIAA) or the Motion Picture Association of America (MPAA) as copyright infringers.

Under an agreement published last week, the participating ISPs are responsible for matching IP addresses identified by the RIAA or MPAA to customer accounts, keeping "a record of repeat alleged infringers," and ultimately for degrading or otherwise interfering with their own service to customers. These service degradations are euphemistically called "Mitigation Measures."

Examples of "Mitigation Measures" include:

"(a) temporary reduction in uploading and/or downloading transmission speeds; (b) temporary step-down in the Subscriber’s service tier to (1) the lowest tier of Internet access service above dial-up service that the Participating ISP makes widely available to residential customers in the Subscriber’s community, or (2) an alternative bandwidth throughput rate low enough to significantly impact a Subscriber’s broadband Internet access service (e.g., 256 - 640 kbps); (c) temporary redirection to a Landing Page until the Subscriber contacts the Participating ISP to discuss with it the Copyright Alerts; (d) temporary restriction of the Subscriber’s Internet access for some reasonable period of time as determined in the Participating ISP’s discretion; (e) temporary redirection to a Landing Page for completion of a meaningful educational instruction on copyright; or (f) such other temporary Mitigation Measure as may be applied by the Participating ISP in its discretion that is designed to be comparable to those Mitigation Measures described above."

Here's a chart I did that summarizes a "system of alerts" spun in press releases and a website as a benefit to consumers who may be unwittingly participating in copyright infringement. You are free to re-use this chart under a Creative Commons attribution license; if you do so, please link back to this post.

According to the agreement, the following ISPs are participating:

"SBC Internet Services, Inc., BellSouth Telecommunications, Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies); Verizon Online LLC, Verizon Online LLC – Maryland, and Verizon Online Pennsylvania Partnership (the Verizon companies); Comcast Cable Communications Management, LLC; CSC Holdings, LLC (solely with respect to its cable systems operating in New York, New Jersey, and Connecticut) (the Cablevision systems); and Time Warner Cable Inc."

You're Living in Disneyland

Couple reports this week about corporate censorship of speech, or the will to realize it.

First, Roger Ebert's Facebook page is taken down. Then, Apple is putatively looking to be able to shut iPhone cameras down, perhaps when you are taking videos at a concert or some other corporate environment where the experience isn't to be your own.

These instances of branded paternalism aren't what we should be worried about. Whether you use an outlet like Facebook for creative work you need to control, whether you use a phone you know the manufacturer could remotely shut down - those are decisions within the realm of personal control. There are other social media sites; there are plenty of manufacturers of cameras.

And, sad to say, there probably is robust market appetite for marketplaces like Facebook and Apple, where tacky comments can be punished and dissemination of creative work can be prevented or controlled.

To worry about acts of petty corporate censorship also, in my opinion, distracts us from the actual, structural threats to free speech, which are (a) the buying of legislation by corporate interests, and (b) reliance on a contractual approach to hosted cloud services, which we probably really do have to think of as utilities or public commons. (See my post from a couple months back, "What Cloud Politics Mean for the Hosted Startup.")

I left comments on the two pieces (at Gigaom and Huffington Post, respectively) linked above. First, regarding Facebook:

It's good that things like this happen because they warn all of us to not be lulled into the sense that the proprietors of Facebook would ever allow the service to be turned into a public commons. Some irony in the fact that the Facebook service illustrates many of the things a digital commons might be about, but, whatever that future is, Facebook won't be it. Too centralized; too lacking in imagination; too bound to the service of a tired, corrupt industry (advertising) that the commercial side of a truly social media would free us from.

But it's a private business, so the only fair remedy to the problem is for individuals to choose with their eyes open.

The far more difficult problem, I think, is what to do about data centers and cloud services that really do function as de facto public utilities, when (a) they don't like content they are hosting, and (b) government wants to search or seize a server and doesn't know how to distinguish between the suspect and it's virtual neighbors? That's also infrastructure for . . . well, everything: commerce, education, the arts, politics, everything.

And regarding Apple's (hypothetical) remotely controlled camera:

Tim, what's the remedy? If it's to warn people that speech can't be free using an iPhone to take pictures or communicate, that Facebook has a corporate agenda (selling stuff and not offending conventional mores), that's awesome, because informed people can make better choices. But I worry that there's a lurking suggestion in your piece that government should do something about it. Perhaps I am misreading you.

There are arenas where a civil society has to think hard about limiting corporate censorship. One is in the arena of voting and corruption of politics, the de facto buying of legislation. Another one would be cloud services that are turning out to be very much like public utilities and public commons, both.

But at the level of Facebook and Apple, warn people, sure, but let it go. If people have the will to cage themselves, that's part of freedom, too. Our problems are more structural than this. It's the buying of politicians. It's the dependence on Facebook-like terms of service, not at Facebook's level, but up in the open cloud.

Picture ("no cameras or recording equipment") by Vitamin-K.

India's Cyber Cafe Rules

I've written previously (here and here) about how Senator Leahy's "Protect IP" Act would license (give a safe harbor to) banks and advertisers that take it into their own hands -- bypassing law enforcement and the courts -- to shut down web businesses that offend them or the corporations with which they do business. This is another one of Congress' stick-it-to-the-upstart "reforms" that are part of the corporate takeover of federal legislation.

Via a tweet from Nixxin, I read an article about the Cyber Cafe Rules in India. The Cyber Cafe Rules aren't strictly analagous to the corporate vigilante safe harbor Sen. Leahy would put in place, but they do implement what seems like a mass deputization of private businesses to police the online activities of citizens. (Different means; both end-runs of legal due process for the average citizen.)

The Indian Cyber Cafe Rules require each operator of an internet cafe to log the names, contact information, computer terminal used, and login and logout times of each person who uses the facility. This log must be backed up and stored for at least one year. Wouldn't it be simple for users to register with fake names and false contact information? Doesn't sound like it. The rules say that "The Cyber Cafe shall not allow any user to use its computer resource without the identity of the user being established." This could mean checking a passport, voter ID card, driving license, or other forms of ID.

The article I read, by Nitin Pai, suggests that the ostensible government interest being served here is probably the combatting of terrorism, but then points out there is a also a broad agenda of content censorship that could not possibly related to terrorism concerns. Another set of rules, promulgated at the same time best I can tell, says that the the operator:

". . . shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —

(a) belongs to another person and to which the user does not have any right to;

(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another 's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation."

There's a lot going on in that list. Reading it from an American perspective and admittedly outside the relevant social context, it feels like a mashup of private contractual terms of use, Sen. Leahy's vigilantism, laws against discrimination, and primer on good manners.

But the experience makes me look again at Sen. Leahy's bill and wonder if there aren't also free speech flaws in it.

Photo by Hynek Moravec, "Internet café in Varanasi, India with gekkons in summer 2001."

Corporate Vigilantism and How to Stop It

Three signs that the NYTimes is starting to "get it:" (1) they co-produced a documentary about one of their own (Bill Cunningham New York, incidentally the best documentary I've seen in years); (2) tweeted links skirt their paywall; and (3) official editorial board editorials, still unsigned(!), appear now alongside reader's comments!

But that's an aside. I want to say a word about a NYTimes editorial from June 9 titled "Internet Piracy and How to Stop It," which takes a position on Senator Leahy's Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act.

The Times says that while the bill should be improved it is essentially a good thing. "Commendably," they write, "the Senate Judiciary Committee is trying to bolster the government’s power to enforce intellectual property protections."

Unfortunately, the Times completely misses a corporate "self-help" safe harbor provision in the bill that bypasses the law and the courts altogether.

That provision reads in part:

"SEC. 5. VOLUNTARY ACTION AGAINST WEBSITES STEALING AMERICAN INTELLECTUAL PROPERTY

"No financial transaction provider or Internet advertising service shall be liable for damages to any person for voluntarily taking any action described in section 3(d) or 4(d) with regard to an Internet site if the entity acting in good faith and based on credible evidence has a reasonable belief that the Internet site is an Internet site dedicated to infringing activities."

The provision is in addition to a safe harbor that says businesses complying with a court order under the law would be exempt from the things they do (shutting someone down, cutting off payments, etc.) to comply with the order. This second safe harbor can only be meant to function outside the process of law enforcement. Hollywood, big banks, big advertisers, this provision says, can make their own judgments and do their own policing and not be liable for shutting down people who offend them.

That's not law, that's vigilante justice, corporatized.

Big media worried about an act of piracy should go through the legal system. They should get a governmental authority to take action, or bring a suit in the courts.

The Times editorial talks as though Sen. Leahy's bill strengthens the hand of law enforcement and provides additional actions and remedies for private parties to seek through the courts. But the bill is far more radical than that. It would put the onus on someone whose site has been taken down and business destroyed to prove, after the fact, that the corporate vigilante's "justice" should not merit the safe harbor.

The bill appears designed to protect yesterday's big media conglomerate. And as I said in the aside beginning this post, the NYTimes is starting to act like it has a place in tomorrow. The new Times would not be afraid to oppose the bill.

What Does Ponca City, Oklahoma Have that Cupertino, California Doesn't?

Answer: Free wireless internet service.

According to the Ponca City website, "Ponca City enjoys the fastest Wi-Fi mesh network in the world, with many citizens reaching speeds in the 5 to 10 Megabytes capacity, and all for free."

Christopher Mitchell of Community Broadband Networks reports that, earlier this week, the Oklahoma city with a population of 26,000 upgraded its network to double its capacity.

Meanwhile, in Cupertino, the City Council held a meeting to hear Steve Jobs talk about Apple's plans to rehabilitate a dramatic, circular office building and campus that Apple purchased from HP.

One of the councilpersons for Cupertino, Kris Wang, asked Jobs what benefits the city would see from the project. Jobs listed jobs, taxes, landscaping and other obvious benefits, but it became apparent that Wang was fishing for something else. Here's a brief transcript:

Councilperson Kris Wang: Do we get a free wi-fi or something like that?

Apple CEO Steve Jobs: Well, see, I'm a simpleton. I've always had this view that we pay taxes and the city should do those things. That's why we pay taxes. Now if we can get out of paying taxes, I'll be glad to put up a wi-fi network.

Wang: We should use our [self?-]tax, or part of it, to provide the iPad or something to our residents, and then get a free wi-fi.

Jobs: Yeah, I think we bring a lot more than free wi-fi.

Wang: Totally agree. Well thanks so much.

Jobs: Sure.

(You can watch a video of Jobs's presentation and his interchange with the largely fawning city officials here. The bit transcribed above starts at approximately 13:15.)

I learned of Ponca City's wi-fi network through one of Christopher Martin's tweets, and clicked through because I know Ponca City as a place where my late grandfather, William A. "Gus" Carleton, Sr., had been pastor of the First Baptist Church some 60 years ago. My grandfather was also a historian and I believe he would be thrilled to see municipalities providing services, like libraries and wi-fi networks, to enable people to connect, share information and educate themselves.

Image: detail from a story in the December 4, 1997 issue of the Oklahoma Baptist Messenger about inductees to the Oklahoma Baptist Hall of Fame.