Comcast (ab)using oligopoly power to interfere with movie downloading

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Comcast came under fire in April 2008 for throttling BitTorrent traffic on their network, even when network congestion was not an issue.  (Daniel A. Begun, The FCC v. Comcast, Round 2 (April 25, 2008) hothardware.com.)  BitTorrent peer-to-peer traffic describes distributed download services where a computer requesting a file (often a large file, like a movie) both downloads tiny pieces of the file from multiple users on the internet and provides other downloaders with access to those same pieces.  The argument from Comcast was that torrent traffic was all illegal content, such as pirated software and movies, but that is no longer true.

Comcast backed off of its packet content-based throttling plan, but phase 2 is here.  "The new system, which is now in place, monitors the amount of downstream traffic a user consumes and not what that traffic is actually composed of."  (Daniel A. Begun, Comcast's New Network Throttling Now In Place (January 6, 2009) hothardware.com, via digg.com.)

Comcast would like consumer to believe that this throttling is about protecting its network from bandwidth hogs, like large file downloaders.  What is more likely the motivation for this second effort at throttling is the desire to keep its the lucrative video-on-Demand service free from competition created by other download services, like Netflix.  This is just more anti-competitive behavior from your friendly neighborhood cable company.  Don't forget that comcast also imposes a 250GB monthly cap on users.  A high definition movie could consume 5-10GB of capacity in one download.  These moves are intended to discourage customers from looking beyond Comcast for video-on-demand.  Somebody ought to do something about this behavior.

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Comcast, Time Warner sued for anti-competitive prohibition on set-top box purchases

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The cell phone companies like providing subsidized handsets because the long-term contracts are worth more to them than the subsidy they provide on the hanset.  Cable companies use their oligopoly position to provide hardware through an entirely different model.  They "rent" consumers the hardware customers need for digital and enhanced services (movies on demand, information services, etc.).  Customers can't buy the set-top box on the open market and still receive the full set of services from their cable provider.  Those fees add up when a customer has multiple televisions on which enhanced services are desired.


As it turns out, consumers are challenging this scheme as an illegal tying arrangement, alleging Sherman Act violations, among other things.  In August 2008, class action lawsuits were filed in, among other states, California and Kansas, challenging Time Warner's practice of preventing customers from purchasing their set-top boxes.  You can read some background on those suits here.

Now Comcast is in the crosshairs.  Ars Technica reports, via Multichannel News, that Comcast was sued in late November for similar anti-competitive practices.  (Nate Anderson, Comcast sued for not selling set-top boxes, Cable-CARDs (December 26, 2008) arstechnica.com.)

Let me just add, on a personal note, that I can't think of a more deserving industry.  Earlier tonight I spent some time unplugging (to reset) the pathetic set-top box that I received from Time Warner after they took my beautiful MOXI boxes from me (while I sobbed uncontrollably).  As I noted in a June 4, 2008 post, Time Warner acquired Adelphia in my part of Southern California.  Time Warner then set about pushing their junky boxes with their junky menu systems on anyone that had Adelphia equipment.  The conspiracy theorist in me thinks that they intentionally fried my two boxes, which both "failed" within a month of each other.  Of course, it could have been bad luck.  But since I can't go out and buy the control box I want, I'll never know.

Suits like these broke the AT&T phone monopoly (back when you couldn't buy a home telephone of your choosing).  If these suits have any effect on the cable industry and its anti-competitive behaviors, I'll be a big fan.
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Poor Apple, sued yet again over iPhone 3G speeds

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This blog reported in September, and again in November, that Apple and AT&T were facing a flurry of proposed class action lawsuits regarding the performance of the iPhone 3G on AT&T's higher speed network.  On November 26, 2008, plaintiff James Pittman sued Apple for varrious product defects.  (Jim Dalrymple, Apple Faces Another 3G Speed Lawsuit (December 4, 2008) www.pcworld.com.)

My iPhone seems to do as well as any other cell phone at holding calls, which is to say that it is passable at that task.  The 3G speed is substantially better than Edge, and I get 3G in a significant portion of the Los Angeles area.  Just my experience.

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A Flurry of iPhone Class Actions

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This blog reported in September that Apple and AT&T were facing a flurry of proposed class action lawsuits regarding the performance of the iPhone 3G on AT&T's higher speed network.  On November 12, 2008, another class action suit joined the ranks of those complaining about the iPhone 3G's ability to function correctly on AT&T's 3G network, but this lawsuit also complained that the casings on the iPhone 3G are defective and prone to cracking.  (Slash Lane, Apple sued over hairline cracks in iPhone 3G casings (November 14, 2008) www.appleinsider.com.)

Once again, who knows what will come of the casing complaint.  Apple was reportedly replacing any phone that showed evidence of hairline fractures.  My iPhone 3G is still looking sharp, but I don't (1) drop it, (2) drop it, (3) drop it, (4) put it in my pocket and sit on it, (5) drop it, (6) put it in my backpack and crush it with books, (7) drop it, or (8) catch it with my foot when I drop it and try to keep it from hitting the ground, resulting in it flying through the air and slamming into a brick wall and then falling to the ground.  But that's just how I am with gadgets - overly cautious.

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NebuAd and ISPs named in class action suit over "Deep Packet Inspection"

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Combine class actions and cutting-edge technology (two topics of interest to me in different ways) and you have what I consider to be the ideal subject matter for blog pontification.  On November 10, 2008, 15 consumers filed a putative class action lawsuit against NebuAd, Inc. and certain Internet Service Providers (ISPs) over the use of NebuAd's "Deep Packet Inspection" (DPI) technology.  (Sam Diaz, NebuAd, ISPs, named in class action lawsuit (November 11, 2008) blogs.zdnet.com.)  A copy of the suit is hosted here.

Perhaps you don't know much about computers on a technical leval and are wondering why this should interest you.  Perhaps you know that you can connect to the Internet but don't know much about what happens after electrons fly out of your home over a DSL line or a Cable line or (please, no) a dial-up internet connection.  If you take nothing else away from this post, know that Deep Packet Inspection is evil.  Be horrified by it.  If you hear of such a program coming to an ISP near to you, protest like your life depends on it.

In basic terms, computers find each other on the internet with numerical IP addresses.  You type in the name of a website.  Behind the scenes, your computer asks a Domain Name Server to translate "thecomplexlitigator.com", for example, into a numerical IP address.  Your computer then requests something from that address such as a website homepage.  The request is passed from router to router, out of your ISP's network and into other networks until it finds the server with the numerical address your computer requested.  That server then delivers the packets of data that comprise the reponse to your request.  Each packet has your delivery address in it.  Each packet makes its way to your computer on its own.  Your computer receives the response packets and reassembles the response, be it a webpage or a file download or something else, by putting the various packets back together in the correct order (they are sequentially numbered).

Your ISP knows that you have requested something from a particular site, but it doesn't know the details of what is passing back and forth between your computer and some server somewhere else on the Internet.  DPI, however, is a method by which NebuAd (or other companies) can peek inside packets and examine the contents of your communications in detail.  This gives far more information about your online activities than merely knowing the IP addresses that your computer visits.  "Having an IP address might tell the system what sites you visit on a regular basis, but for sites like Amazon.com, this is less than helpful. DPI gear can see exactly what pages on the site are being accessed, though, and it can scan those pages for keywords to use in building its profile."  (Nate Anderson, Charter "enhances" Internet service with targeted ads (May 13, 2008) arstechnica.com.)

Phorm, another company providing DPI services, has been given the green light to proceed in the United Kingdom.  While the technology is beyond the scope of this blog, Phorm's DPI technology is even worse than NebuAd because it essentially impersonates you on the Internet in a manner that is undetectable to you and the site you are visiting.  Where provided access by ISPs, Phorm will read the URLs visited, the search terms used by every user, and the content of every page visited. The resulting profiles are then sold to advertisers who are salivating at the thought of this highly specific targeting.  ISPs will share in the revenue with Phorm.

Imagine someone following you around a mall, noting every product that caught your eye, even for a moment, and then selling that information to every store in every mall you visit.  Then imagine walking into a different mall and realizing that every store already knew this information about you and actively solicited you to purchase competitors' products that are similar to what you viewed.  Don't let it happen to you!

[UPDATE:  Thanks to the reader who occasionally catches my typos.  I often have limited free time for posting, and proofreading is the first thing that gets sacrificed.]

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Apple and AT&T continue to receive class action grief over iPhone 3G

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The benefit of having one's own blog is the ability to choose the content.  I happen to have an iPhone 3G.  I was one of those thralls to commerce that actually stood in line (admittedly, a short line) to get the Jesus Phone version 2.0.  That's why I am interested in all the class actions that have been filed against Apple and AT&T over the phone's performance and design.

After the iPhone 3G was released, there was a substantial bit of consumer grumbling that AT&T's faster 3G network was not univerally available.  On August 19, 2008, Alabama resident Jessica Alena Smith filed the first know class action complaint yesterday against Apple, "alleging that the new iPhone's 3G performance and reliability has been subpar, despite the claims made by Apple's aggressive marketing campaign."  (Jacqui Cheng, AT&T hit with yet another iPhone 3G lawsuit (August 20, 2008) www.arstechnica.com.)  Around the beginning of September, a second class action lawsuit was filed against Apple and AT&T.  ABC News reported:  "The main issue is that AT&T's 3G network isn't strong enough to support the millions of people who are iPhone 3G users," Michael Rott, a partner with the San Diego-based law firm Hiden, Rott & Oertle, LLP, told ABCNews.com. "Apple violated [California law] by misrepresenting the actual speed and performance of its 8G and 16G models."  (Ki Mae Heussner, IPhone 3G Draws Second Class Action Suit (September 4, 2008) abcnews.go.com.)

A third class action suit was filed in New Jersey.  A fourth, filed this week, alleges that the iPhone does not live up to Apple's and AT&T's claims of speed and performance and that the rear plastic housing in the iPhone 3G is defective, resulting in hairline cracks.  (Chris Foresman, iPhone 3G lawsuit blames Apple, AT&T for cracks, slow speed (September 23, 2008) www.arstechnica.com.)

I don't want to write off these class actions at such and early stage, but it seems to me that connectivity issues will vary widely by location, rendering class treatment over large geographic areas challenging at a minimum.  My ancecdotal experience is that the two software updates issued by Apple both improved the performance of the phone, including its 3G connectivity performance.  And while everyone is lamenting AT&T's terrible 3G coverage, I'm writing this post after connecting with my AT&T 3G modem when my cable internet was having issues tonight.  My iPhone works fine on 3G here, it works fine on 3G in Las Vegas, and it works fine on 3G in New Orleans.  Basically, the iPhone 3G is awesome (unless you have fat fingers, in which case you should look elsewhere and save yourself the pain of typing on a virtual keyboard).

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Commerce websites need to make themselves accessible to visually imparied visitors in a hurry

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The question of whether the Americans with Disabilities Act applies to websites has been simmering for several years.  (Sherry Karabin, Companies, Courts Debate Whether ADA Applies to Web Sites (September 6, 2007) www.law.com.)  The answer is coming into focus.  On Wednesday, after several years of litigation, Target Corp. agreed to a settlement with the National Federation of the Blind that calls for Target Corp. to pay out $6 million in damages and make its website fully accessible to blind customers.  (Evan Hill, Settlement Over Target's Web Site Marks a Win for ADA Plaintiffs (August 28, 2008) www.law.com.)  Judge Marilyn Hall Patel likely moved the parties closer to settlement after ruling that the ADA and California's Unruh Civil Rights Act both apply to businesses' websites.

Other companies have decided to avoid litigation (probably to foster more goodwill with consumers).  Amazon.com and RadioShack both agreed to make changes to their sites without protracted litigation.  Following Target's settlement, I think it is likely that online retailers can expect a rapid surge in litigation of this type.  And frankly, the only reason why I am not 100% certain that this area of litigation will explode is that Internet-linked issues seem to deter some otherwise confident litigators because of an irrational fear of all things digital.

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Printers continue to lie about ink and toner levels

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A number of years ago, Epson was faced with costly litigation surrounding its practice of designing ink cartridges that reported an empty status long before the cartridge was out of ink.  Apparently this practice hasn't stopped; printers are stll "lying" about ink and toner levels.  (Christopher Null, Your printer is lying to you (August 24, 2008) tech.yahoo.com.)  Fortunately, there are things you can do to get at all of the ink or toner you bought (other than file another class action lawsuit).  (Farhad Manjoo, Take That, Stupid Printer (August 21, 2008) www.slate.com.)  One piece of advice is to "Google some combination of your printer's model number and the words toner, override, cheap, and perhaps lying bastards."  Now that's useful advice.

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COMPLEX TECH: Adobe Acrobat 9 Pre-Review

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Box_acrobat_9_pro_112x112I'm up to at least my chin in a major "project" that I will include in an announcement here in a week or so.  That "project" has slowed down my evaluation of Acrobat 9.  I'm just getting started with my testing (in fact, I'm examining two versions of Acrobat 9, the mid-tier Acrobat 9 Pro, and the full-featured Acrobat 9 Pro Extended).

I'm impressed with the new feature set that I've had a chance to quickly inspect thus far, so I wanted to mention a few of the enhancements that I will review in detail in a further post:

  • Flash runtime in now included in Acrobat 9.  In the Pro Extended package, this addition will permit users to import Microsoft Powerpoint presentations, convert them into a flash "movie" and embed them in a pdf.  Viewers will be able to watch the flash version of the presentation. 
  • Acrobat 9 adds a concept called Portfolios, which are, essentially, multi-document binders that can include non-pdf documents within the binder.  A portfolio can include and preview word and excel documents, for example.  But the encapsulating portfolio is a "pdf," making it easy to share online or via e-mail (which often blocks zip files). 
  • Transparent Document co-navigation: using conferencing tools, users can jointly examine and navigate through a document.  In other words, each user can remotely flip through pages to focus on different parts of a document. 
  • The Forms Tool scans documents for what appear to be fields.  If the automatic scanning misses a field, the tool allows the user to create and name other fields.  Where appropriate, you can collect completed form responses through acrobat.com. 
  • The Split Document tool allows for the division of documents by page numbers, by bookmarks, or by file size limitation.

This in not even an exhaustive list of new features that would likely interest attorneys (but they are features that interested me immediately, so they received first looks).  There are improvements to bates numbering, and quasi-EDD tools.  For example, individual e-mails can be collected into a portfolio.  As I complete my testing of various new features, I will post articles with detailed comments about the effectiveness and usability of Acrobat 9's new features with a legal twist.

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Google and Viacom agree to "anonymize" YouTube user data

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The Viacom v. YouTube discovery order saga continues, but this time in a way that may mildly alleviate concerns of privacy advocates.  Recently, Viacom, feeling the heat from public outrage over its discovery victory, began a PR campaign to convince members of the public that it wasn't seeking to identify YouTube viewers.  But that assertion simply didn't square with the terms of the Order sought by Viacom.

Perhaps motivated by public scrutiny, Viacom and Google announced that they have reached an agreement to "anonymize" the viewer identity data in the Goolgle database.  (Eric Auchard, Lawyers in YouTube lawsuit reach user privacy deal (July 15, 2008) uk.reuters.com.)  This is a good lesson in how to salvage a position when a discovery victory turns into a massive PR failure.  Had Viacom pressed the issue of obtaining the unredacted viewership database, it risked alienating a large block of consumers.  If Viacom is really sincere that it isn't interested in viewer identities, then "anonymized" viewing data is fully sufficient for Viacom to make its case against Google and YouTube.

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