Comcast-Funded Think Tank: Broadband Usage Caps Make Netflix Streaming Better. You're Welcome.

As we've noted for some time, the broadband industry (and all the think tanks and politicians that work for it) have spent the last few years trying to vilify Netflix. That's primarily due to the company's support of net neutrality, but also its opposition to anti-innovative and anti-competitive broadband usage caps. These attacks usually start with the criticism that Netflix now dominates around 37% of peak downstream traffic (as if that's a bad thing), followed by some bizarre and unfounded claim that Netflix should be forced to "pay its fair share" (read: give us a cut of revenues despite us having no legitimate claim to it).

While these assaults had quieted down for a while, Daniel Lyons (not the fake Steve Jobs Daniel Lyons) and the American Enterprise Institute last week came out with a bizarre missive on broadband caps, in which Lyons tries to claim that broadband usage caps are a great way to force Netflix "to become a better corporate netizen." As noted above, Lyons starts by highlighting how Netflix consumes a huge amount of peak Internet capacity:

"Netflix has long reigned as one of America’s most significant Internet-traffic generators. Network equipment company Sandvine reports that the video-streaming company is by far the leader in peak period traffic, responsible for more than 33 percent of all fixed Internet traffic during peak hours — more than twice the share of the next-biggest competitor, YouTube. This means that at times when the Internet is most susceptible to congestion, Netflix alone is responsible for one out of every three packets sent through the network."

For clarity it should be noted that Netflix customers are responsible for this consumption. Netflix consumers who, in the United States, already pay more for bandwidth than consumers in most developing countries. Netflix in turn not only pays for bandwidth, it now pays ISPs for direct interconnection to their networks, after ISPs were accused of intentionally degrading peering points to force its hand. Everybody is paying, and paying, and paying some more -- so it doesn't matter one iota how much bandwidth Netflix is consuming -- because consumers are demanding and (probably over)paying for it.

Back in December, Netflix announced it was making some changes to the way it intelligently encodes its titles. This shift involves encoding titles differently depending on type and genre, since cartoons (with static backgrounds) technically eat less bandwidth than live action movies. The move was prompted by one thing: this month's expansion by Netflix into 130 more countries. Netflix's primary concern? Making sure that networks -- especially of the mobile variety in developing nations -- would have a more consistent and trouble-free viewing experience. It was just a smart, albeit admittedly belated shift in improving the way Netflix operates.

Apparently seeing a flimsy logical opportunity for the ages, Lyons tries to claim that Netflix was forced to improve its efficiency -- solely thanks to the wonder and glory of broadband usage caps:

Usage-based pricing forced Netflix to be more mindful of the size of its digital footprint. Because they face potential overage charges, consumers are becoming more aware of the amount of bandwidth their online activities consume. This leads edge providers such as Netflix to develop more efficient methods of delivery, in response to increased consumer sensitivity. The result is a more efficient operation that benefits everyone by freeing up network capacity — which is like broadband providers improving speeds, but without having to install new network lines."

That's an astonishing, incredible load of bullshit.

Netflix has long allowed capped users to adjust streaming quality to manage consumption, but to claim caps are to thank for these improvements is aggressively dishonest. Lyons and his friends at the AEI are funded by Comcast, the same company that's aggressively expanding utterly unnecessary usage caps on millions of consumers. Those caps have one overarching function: to raise rates on uncompetitive markets, give Comcast's own services an unfair advantage, and to protect Comcast TV revenues from Internet video.

There's clearly some worry on the part of Comcast and its think tank friends that the FCC will finally get off its ass and begin pressing Comcast on its anti-competitive abuse of usage caps, but if this is the best argument the AEI can come up with, Comcast may want to reconsider its disinformation budget for 2016.

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Virginia Supreme Court Says 'No Thanks' To Improving State's Dismal Court System

Criminal defendants face a tilted playing field all over the country. If it isn't the frequent withholding of exculpatory material by prosecutors, it's everything leading up to it -- beginning with questionable interrogation methods and continuing with the admission of dubious physical evidence.

Virginia's playing field is more slanted than most.

Although prosecutors in Northern Virginia mostly make their files available to defense lawyers, that's not true across the Commonwealth, defense lawyers said. "Justice is different in one jurisdiction than the next," said Norfolk defense lawyer Douglas Ramseur. "You could be charged in Richmond and Norfolk and get a completely different amount of information. That seems to me completely inappropriate and unseemly for our system." He added that prosecutors who like one defense lawyer may provide more access than to a lawyer they don't like, giving prosecutors unfair leverage.

There's no consistency across jurisdictions. Even at its most accommodating, the amount of information available to defense lawyers pales in comparison to what can be uncovered in civil proceedings. Apparently, when it's only someone's freedom on the line, Virginia's judicial oversight feels "barely adequate" is more than enough.

It's gotten bad enough that the state's Supreme Court empanelled a Special Committee on Criminal Discovery Rules in 2013. In early 2015, a preliminary report was issued. This was followed by a letter from the state's ACLU, which highlighted some of the suggested fixes.

The proposed Rule 3A:11[b] would allow the defense to inspect "all relevant police reports," such as "reports of interviews of witnesses." The new rule would also allow the inspection of "all relevant statements of any non-expert witness," including written or signed statements, transcripts, or recordings.

The inclusion of police reports and witness statements in the routine discovery process will greatly improve the adversarial process. Under the proposed rules, defense attorneys will have access to the most basic information about their clients' cases. No person should have to stand trial without knowing basic information about the government's case against him. And in a criminal justice system that "is for the most part a system of pleas, not a system of trials," defendants must have access to this critical information before trial so that they can make an informed decision about whether to take a plea bargain or go to trial.

[...]

Proposed Rule 3A:11(i) would, for the first time, formally enact the rule of Brady v. Maryland into Virginia criminal procedure. More than 50 years ago, the United States Supreme Court held that, as a matter of federal constitutional law, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution…

This proposal is consistent with Brady and with adversarial principles. By requiring disclosure of exculpatory evidence upon indictment, waiver of indictment, or before entry of a plea, and by requiring the disclosure of impeachment evidence seven days before trial, the proposed rule provides stronger protection to defendants than offered by current constitutional jurisprudence...

By making clear that prosecutors must make disclosures of Brady evidence before trial, the proposed rule would place appropriate emphasis on the duty of a prosecutor to seek justice, not merely to convict.

The discussion continued throughout 2015. The panel's suggestions were opened for public comment and the state's defense attorneys began looking forward to more equitable evidence sharing in the future. Virginia courts, where "trial by ambush" is the norm, would perhaps start moving towards something resembling the balance envisioned by the nation's founders.

Two years after the process began, the same Supreme Court that brought the committee into existence has rejected all of its suggestions. A single-paragraph announcement by the court states nothing will change.

On December 2,2014 came the Special Committee on Criminal Discovery Rules and submitted its final report, which included proposed revisions to Rules 3A:l1, 3A:12, 7C:5, 8:15, and which also proposed the adoption of Rule 3A:12.1. Having considered the Committee's report and the public comments submitted in response thereto, the Court declines to adopt the Committee's recommendations.

Not a single recommendation adopted. A project that lasted two years and gathered more than 300 pages of public comments is nullified by 63 words. The court's excuse for this? It would have been difficult to implement even one of the recommendations because so much of the state's judicial system is in dire need of an overhaul.

Virginia Chief Justice Donald W. Lemons said in a statement to The Washington Post that the entire proposal was simply too much all at once. While commending the report, Lemons wrote that "such fundamental and sweeping changes in the system, especially in light of the strong public comments opposing them, seem unwise at this time."

[...]

"It would be difficult for the court to accept some of the proposals and not all of them as a package because the court cannot be certain about the interdependent nature of these compromises."

"Difficult" maybe. But not impossible. Rather than engage in a task worth undertaking, the court has opted for stasis, because it's easier than dealing with the multitude of problems it has failed to address in the past. And it must be noted that the "opposing" comments the Chief Justice refers to in his cop-out were submitted by the beneficiaries of the broken system -- and those comments were in the minority.

[T]he Supreme Court asked for public comment and received 318 pages of letters and emails. The overwhelming majority, coming from defense lawyers and some defendants, supported the rules changes. But the Virginia Commonwealth's Attorney Services Council and Virginia State Police filed long, detailed objections.

When in doubt, defer to the "winning" team -- the one that always receives the lion's share of judicial deference. Better an innocent man do time than a few proposals upset the delicate balance of the skewed system by screwing with their "interdependence." No matter how the Supreme Court of Virginia spins this, the refusal to move forward is weak, cowardly and will do further harm to criminal defendants. And all the while, the judicial system will continue to pretend a "fair" trial can be had within the state's courts.

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Patents On Presentation Of Information Excluded In EU, But Germany Has Just Granted A Patent On A Graphical User Interface

Software patents are contentious, and nowhere more so than in Europe. Patenting there is governed by the European Patent Convention (EPC). Article 52 of the EPC reads as follows:

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

Although the exclusion of software seems crystal clear there, the same Article adds the following regrettable rider:

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

What exactly those two words "as such" mean in this context has been argued over for years. In practical terms, it has led to thousands of software patents being issued thanks to clever framing by lawyers that takes advantage of the "as such" loophole. According to this post on a blog that is called unashamedly "European Software Patents," it seems that German judges have now gone even further, and granted a patent for a graphical user interface. That's surprising, because the same EPC Article 52 explicitly excludes "presentations of information" from patentability. So how did the lawyers get around that? By using the "as such" loophole again. As the blog post explains:

the Federal Court of Justice (FCJ) held that the [EPC's] exclusion is overcome when the presentation of information serves the solution of a technical problem with technical means

Just in case that legalese isn't crystal-clear, here are details of the case considered by the German court. The patent dealt with the display of visual information captured by a swallowable capsule equipped with a camera. Apparently, these cameras produce information too rapidly to be useful for ready examination by the human eye. That problem was solved by showing only a subset of transmitted frames in one window, and different subsets in other windows. The idea is that an expert can scan several of these windows at once, since the images in each are changing relatively slowly.

Germany's Federal Patent Court held this to be a pretty obvious idea (which it is), but the country's Federal Court of Justice reversed that finding, and decided that the idea of breaking up a stream of images into subsets was terribly clever, and definitely eligible for patent protection. It also made a more general statement about the patentability of graphical user interfaces:

Instructions relating to the (visual) presentation of information which do not primarily focus on the conveyance of particular content or its conveyance in a particular layout but on the presentation of image content in a manner that takes into account the physical characteristics of human perception and reception of information and are directed towards making possible, improving or making practical the human perception of the displayed information serve the solution of a technical problem with technical means.

It's one of those how-many-angels-can-dance-on-the-head-of-a-pin distinctions beloved by patent lawyers, but which actually makes no sense. After all, it could be argued that any intelligible, well-designed presentation of information "takes into account the physical characteristics of human perception and reception of information," and therefore is eligible for a patent. The latest decision by the German courts will doubtless lead to the granting of further, similarly-trivial patents, and to companies increasingly nervous about the use of even the simplest graphical user interface in their products for Germany. So how is that encouraging innovation or benefiting the public?

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Hackers' modus operandi: 5 insights that may help identify emerging threats

Researchers at the University of Arizona's Artificial Intelligence Laboratory are trying to get into the minds of hackers to anticipate their plan of attack.