Cable Customers Have Paid $3.5 Billion For Sports They Can't Watch

from the money-for-nothing dept

Despite the pandemic suspending most major league sports play, cable TV consumers continue to pay for programming they can't watch.

For fifteen years or more, consumers have complained about the high cost of sports programming. That's particularly true for consumers who don't watch sports, but are often forced to pay the sky high prices for sports programming as part of a bloated cable bundle anyway. One survey, a few years ago, found that 56% of consumers would ditch ESPN in a heartbeat if it meant saving the $8 per month subscribers pay for the channel. The "regional sports fees" tacked on to subscriber bills have also long been a point of contention because they're often used to help falsely advertise a lower rate.

NY Attorney General Letitia James recently fired a warning shot over the bow of the industry, calling on seven major cable TV providers to begin offering refunds for nonexistent programming:

"At a time when so many New Yorkers have lost their jobs and are struggling, it is grossly unfair that cable and satellite television providers would continue to charge fees for services they are not even providing. These companies must step up and immediately propose plans to cut charges and provide much needed financial relief. This crisis has brought new economic anxiety for all New Yorkers, and I will continue to protect the wallets of working people at every turn."

This being the cable TV industry, the requested refunds haven't happened. AT&T (DirecTV) has let some users get refunds for premiums sports subscriptions (MLB Extra Innings and MLS Direct Kick), but none of the seven cable providers singled out by James appear to have changed their policies in the slightest or offered any refunds whatsoever. In a statement, AT&T makes it pretty clear that because broadcasters aren't likely to give it a break, consumers won't be getting a break either:

"We continue to monitor the situation closely and are in contact with programmers and sports leagues as they plan their next steps. Any rebates we receive from programmers and sports leagues will be provided to our customers."

That's generally been the same line trotted out by cable providers like Spectrum, which are quick to point out that there are layers of complicated contracts at play and more than a lot of uncertainty as to what happens next. And while that's certainly true, we're not talking about pocket change here. One recent analysis estimated that pay-tv subscribers have paid almost $3.5 Billion in cable fees over the last two months for live sports that never happened:

"...there are around 86.5 pay-TV households in the United States. On average, each of these households pays around $20 per month in fees for sports programming. That means pay-TV subscribing households in the US pay about $1.73 billion per month in fees for sports programming. And with two months of no live sports thus far, that means pay-TV companies like Comcast and AT&T have received nearly $3.5 billion in fees for sports programming that features no live sports."

Somebody has to eat those costs, and congratulations, it's going to be you, the end consumer. How long this goes on is uncertain, but with the FCC asleep on consumer issues, it's unlikely the federal regulator will help. Fortunately (unlike the broadband sector), the rise in streaming competition means users have options. Cord cutting was already setting records in 2019, and with Sports being the only thing keeping users subscribed to traditional cable, cord cutting is expected to soar to even greater heights thanks to COVID-19.

Filed Under: cable tv, covid-19, letitia james, pandemic, sports

#NoRightsMatter: US Postal Service, Law Enforcement Team Up To Seize 'Black Lives Matter' Facemasks

from the guaranteed-but-also-fungible-I-guess dept

In this time of coronavirus and social unrest, you'd think the government -- at all levels -- would engage in a little more care not to make either problem worse. Of course they haven't. Cops are arresting journalists and tear-gassing peaceful protesters as the President himself calls for domestic military action targeting US citizens. Dystopian fiction writers have been put on notice: the usual shit just isn't going to sell anymore. The ideas you thought wouldn't sustain suspension of disbelief are swiftly becoming reality.

Stepping into the breach for reasons it will probably never be able to fully explain is the federal government, using nationwide protests as a reason to suspend as many rights as possible until everyone agrees the government is not an oppressive force -- even when personified as a white cop strangling a black man to death by putting his knee on his neck.

Good luck with that. The government needs all the goodwill it can collect. It has apparently failed to realize the importance of harvesting goodwill in difficult times. And when the lawsuit inevitably gets filed, it will have to explain why it chose to do this massively stupid thing. Ryan Reilly reports for the Huffington Post about an apparent First/Fourth Amendment double-punch.

Law enforcement agents have seized hundreds of cloth masks that read “Stop killing Black people” and “Defund police” that a Black Lives Matter-affiliated organization sent to cities around the country to protect demonstrators against the spread of COVID-19, a disease that has had a disparate impact on Black communities.

The Movement for Black Lives (M4BL) spent tens of thousands of dollars on the masks they had planned to send all over the country. The first four boxes, each containing 500 masks, were mailed from Oakland, California, and were destined for Washington, St. Louis, New York City and Minneapolis, where on May 25 a white police officer killed George Floyd, a 46-year-old handcuffed Black man, setting off a wave of protests across the country.

Here's the original post detailing the apparent seizure of free speech d/b/a protective face masks:

This was multiple levels of fucked up, both in terms of what happened and who was involved. It's not clear which law enforcement agency seized the masks but it all started with the US Postal Service's "inspection" unit (USPIS), which apparently flagged the items as somehow illegal and/or dangerous.

The masks Rene Quinonez of Oakland's Movement Ink created never made it any further than the postal depot. The only thing unusual about the face masks -- millions of which have traversed the country unmolested in recent months -- were the slogans they bore.

Heads up, government agents: slogans printed on face masks are protected speech. And deciding to make off with a citizen's personal property because you just don't like what's printed on it doesn't just violate their First Amendment rights. It also violates their Fourth Amendment right to be free of unjustified molestation by the government.

"Congress shall make no law… abridging the freedom of speech…" And it hasn't! Which makes this seizure unlawful. Lot of people who swore to uphold the Constitution are now wandering around acting like rights are privileges that can be completely suspended if stuff starts going sideways. Sure, there's lots of executive power to throw around and everything Congress has handed itself to use during wartime, but civil unrest across the nation isn't the bar for the suspension of guaranteed rights.

When anti-government demonstrations are widespread, it's speech the government doesn't like that needs the most protection. And here, the government (on a number of levels), has failed.

UPDATE: The federal government -- acting incredibly strangely -- has now released the masks and refunded Movement Ink's shipping costs. Sounds like the entities involved were hoping no one would talk about this and are trying to fix things on the sly now that this bullshit has been exposed.

An organizer involved in producing the masks, speaking on the condition of anonymity, said they received a call from a USPIS employee on Friday morning, hours after HuffPost’s initial story on the seizure ran. What was strange about the call, the person said, is that they weren’t the person who mailed the boxes or the point of contact.

The organizer who received the call said the USPIS official said there would be a refund for the cost of express shipping since the boxes wouldn’t be arriving on time, which would have allowed them to be used by protesters on Thursday night and this evening.

All's well that ends well and all that, I guess. But there's still a civil rights lawsuit in here and Movement Ink should go after the government for its decision to violate multiple rights just because no one involved was willing to end this unconstitutional process before it could cause any harm.

Filed Under: 1st amendment, 4th amendment, asset seizure, black lives matter, covid-19, face masks, george floyd, law enforcement, seizure, uspis
Companies: movement ink

Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic

from the not-a-good-look-guys dept

For many years, we've said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.

Over the last few months, we've discussed why publishers and authors were overreacting in their verbal attack on the Internet Archive's decision to launch a "National Emergency Library" to help out during a pandemic. While many publishers and authors declared this to be "piracy," that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don't need special licenses to lend out books.

In other words, this was yet another attack on property rights. Publishers and some authors were trying to argue that the Internet Archive needed extra licenses to lend out legally made scans of legally obtained books. And to respond to a few common criticisms of the NEL: they were doing this since so many libraries and schools around the world were shuttered due to the pandemic, meaning that millions of books were literally collecting dust on shelves, un-lendable. More importantly, the NEL was not targeting recent releases (all books in the NEL are over 5 years old, and the commercial life of nearly every book is much shorter than that). Finally, contrary to some claims, the books in the NEL are not "bit for bit copies" of high quality ebooks. They are relatively low quality scans. If a more legit version is available, nearly any reasonable person would go for that instead (indeed, I've personally purchased multiple books after first borrowing copies from the Open Library before deciding to get a permanent copy). Also, most of the books available in the NEL are simply not available at all in ebook format, meaning that they're not available at all during the pandemic for many people.

There was some chatter that publishers might choose not to sue the Internet Archive over this, because losing this fight would seriously challenge a bunch of other copyright claims that they rely on. But, come on. These guys are so obsessed with copyright, how could they not sue? So, earlier this week, all the big publisher teamed up to sue the Internet Archive, represented by former RIAA lawyer Matt Oppenheim, who has a long history of being on the bad side of nearly every big copyright case.

Here's the thing, though: the publishers didn't just decide to sue over the National Emergency Library: instead they're also suing over the entire "Controlled Digital Lending" process. That's the program that the Authors' Guild has been whining about, which is the underpinning of the NEL. The CDL/Open Library program involves letting libraries lend out digital books if they retain a physical copy of the book on the shelf (so maintaining a one-to-one relationship between books lent out and books that the libraries have in their possession). The NEL took away that limitation, with the argument that this was allowed due to their reading of fair use in the midst of a pandemic with so many books locked up.

While I support the NEL -- I can recognize that courts may not buy their fair use arguments. On the CDL/Open Library front, though, that's just blatantly attacking a very standard library procedure. There can be no argument of "lost revenue" from the CDL, unless you're attacking the very basis of libraries themselves. And that's what the lawsuit appears to do.

The scale of IA’s scheme is astonishing: At its “Open Library,” located at www.openlibrary.org and www.archive.org (together, the “Website”), IA currently distributes digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written. Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.

Except the identical argument applies to public libraries lending physical copies as well. It does not "grossly exceed legitimate library services." It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.

That's a LIBRARY.

The lawsuit tries to pay lip service to libraries, and to argue that what IA is doing is somehow different than a library, but it doesn't hold up to much scrutiny. Instead, the lawsuit and the Publisher's Association's press release about this are filled with nonsense rhetoric about how crucial books are to society and how evil, evil piracy is. From the lawsuit:

Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.

That's right: and for tons of people they way they read those books is from a library. The Association of American Publishers, led by fired former Copyright Register Maria Pallante is spitting fire over this:

Despite the self-serving library branding of its operations, IA’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

In willfully ignoring the Copyright Act, IA conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. IA not only conflates print books and eBooks, it ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and eBook lending.

Yeah, but that's kinda the point, isn't it? The publishers have been chipping away at "libraries" for years. Before ebooks, libraries could buy books and lend them out. They didn't need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.

It's that very new imbalance that the CDL/Open Library system was designed to fight back against. But, no, the publishers act as if they've always been able to block libraries from lending.

And, of course, filing this lawsuit in the midst of a pandemic (not to mention all the social unrest) in which libraries around the globe remain closed is just... crass.

For what it's worth, in looking down the list of works sued over, and doing a spot sampling, it looks like at least some (though not all) of the works being sued over are no longer available through the National Emergency Library. Since the NEL has always had a simple opt-out system, it does make you wonder why these publishers and authors didn't just make use of that. But also looking over that list, I see a bunch of books that I know are read in schools -- meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.

So much for those books being "essential to our society."

But, of course, this is copyright, and the rule of the land tends to be that when big legacy copyright holders file lawsuits, they tend to win. I'd say there's a more than even chance that the Internet Archive loses. Not because it should, but because when big old industries scream copyright infringement, we've seen the courts buy it over and over again, even when the legal arguments are nonsensical. And, in this case, the Internet Archive's legal theories are certainly untested. There isn't real legal precedent to guide this. For its part, the Internet Archive has said that they hope this can be resolved quickly, however, there are very real concerns that this fight could bankrupt the entire Internet Archive.

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

Filed Under: controlled digital lending, copyright, covid-19, fair use, libraries, library, national emergency library
Companies: aap, hachette, harper collins, internet archive, john wiley, penguin random house

Corporate Sovereignty Lawyers Prepare To Sue Governments For Bringing In Measures To Tackle COVID-19 And Save Lives

from the priorities,-priorities dept

Regular readers of Techdirt will be all too familiar with the problem of corporate sovereignty -- the ability of companies to sue entire countries for alleged loss of profits caused by government action. Also known as investor-state dispute settlement (ISDS), there have been indications that some countries are starting to drop ISDS from trade and investment treaties, for various reasons. But a worrying report from Corporate Europe Observatory suggests that we are about to witness a new wave of corporate sovereignty litigation. Hard though it may be to believe, these cases will be claiming that governments around the world should be reimbursing companies for the loss of profits caused by tackling COVID-19:

In the midst of a crisis like no other, the legal industry is preparing the ground for costly ISDS suits against government actions that address the health and economic impacts of the coronavirus pandemic. In written alerts and webinars law firms point their multinational clients to investment agreements' vast protections for foreign investors as a tool to "seek relief and/or compensation for any losses resulting from State measures"

No claims have been filed yet, but experts are so worried about this threat that they have called for an immediate moratorium:

on all arbitration claims by private corporations against governments using international investment treaties, and a PERMANENT RESTRICTION on all arbitration claims related to government measures targeting health, economic, and social dimensions of the pandemic and its effects.

Law firms specializing in corporate sovereignty are already well advanced in their preparations for demanding money from governments because of the "damage" the pandemic response has inflicted on corporate profits. Corporate Europe Observatory links to numerous reports and client alerts from these ISDS firms, which spell out the grounds on which big claims might be filed. These include:

ISDS claims against government action to provide clean water for hand-washing

Challenging relief for overburdened public health systems

Lawsuits against action for affordable drugs, tests and vaccines

Investor attacks on government restrictions for virus-spreading business activities

ISDS suits against rent reductions and suspended energy bills for those in need

Disputes over debt relief for households and businesses

Legal action against financial crises measures

Tax justice on trial

Suing governments for not preventing social unrest

The idea that governments around the world struggling to contain the pandemic and save thousands of lives might also have to fight such ISDS claims in court, and even pay out billions in fines when funds are needed for rebuilding lives and businesses, is bad enough. But the fact that law companies evidently have no qualms about recommending the use of corporate sovereignty in these difficult circumstances is a hint of even worse to come.

If these kinds of ISDS actions succeed, and governments are ordered to make huge payments to companies because of national pandemic responses, it is highly likely that similar cases could and would be brought over action to tackle climate change. That in itself might discourage some countries from adopting urgently needed measures. And for those that do, there is the prospect of big fines at just the time when maximum resources will be needed to deal with the environmental, social and economic effects of a climate catastrophe.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: corporate sovereignty, covid-19, isds, lawsuits, pandemic

Florida Government Decides To Fire Its Data Chief Rather Than Be Honest About Its COVID Numbers

from the 'we've-found-a-cure-that's-worse-than-the-disease!' dept

We were promised no more deaths by May 15th, but that hasn't happened. With no one 100% sure what the best options are going forward, this is how states are handling the task of (lol) cautiously "reopening." A long press conference held by the Trump administration said states could reopen if they hit a number of checkpoints, including a certain amount of testing and a plateau/drop in positive cases.

A number of states appear to have stopped listening after the word "reopen." Whether or not they've hit the CDC's checkpoints does not appear to matter. A collective shrug about deaths and infections was issued by a number of governors, some of whom are (justifiably) tired of gun-toting residents showing up at the state house to protest their lack of access to haircuts and house parties.

When the data doesn't match the narrative, there's only one thing to do: fuck up the data. And the person who's compiling it. Florida has lots of sunny beaches that are currently too empty to satisfy sun junkies who wish to take advantage of the lengthy shorelines contained in America's Penis. COVID stats weren't exactly lending themselves to the "it's fine" narrative the governor wanted to push. So, the state government did some pushing of its own.

Late last Friday, the architect and manager of Florida's COVID-19 dashboard — praised by White House officials for its accessibility — announced that she had been removed from her post, causing outcry from independent researchers now worried about government censorship.

[...]

Citing "reasons beyond my division’s control," Jones said her office is no longer managing the dashboard, is no longer involved in publication, fixing errors or answering questions "in any shape or form."

She warned that she does not know what the new team's intentions are for data access, including "what data they are now restricting."

The means of impartial COVID stat reporting have been seized. Power to the (powerful) people! The dashboard that used to provide an easy-to-understand breakdown of the state's infection and death rates is being replaced with something that aligns more closely with the aura of sunny healthiness the state government wants to project. Dance through the droplets or whatever. Want to check the state's new math? Well, you can fuck right off, apparently.

When [researchers] tried requesting the previously available underlying data, DOH officials said that because the data are "provisional" no such requests would be considered until May 2021.

Yet the state regularly publishes provisional data, including for infectious diseases such as influenza.

Here's the governor's literally unbelievable defense of his indefensible actions: when someone asks for time off, they're clearly asking to be fired and for their work to be destroyed.

When first asked about Jones' dismissal, [Governor Ron] DeSantis on Monday called it a "nonissue." He said he understood from an email she sent her supervisor that "she was tired and needed a break."

He then went on to claim -- after being given a few days to compose his thoughts -- that this firing was due to "repeated insubordination" rather than the researcher just being tired. "Insuboridination" apparently means publishing actual COVID stats rather than manipulated data that provides post hoc justification for the state government's reopening plans.

The state is now open. Whether or not that's good for residents and visitors remains to be seen. The state has taken control of a narrative. Since the real numbers aren't aligned with the state's official OPEN FOR BUSINESS pitch, the state apparently felt its only option was to fire the person compiling the data.

Now, residents and visitors will have only the state-approved numbers to rely on. Let's hope they don't. If this turns into another pandemic nightmare that the state could have avoided by being honest, citizens are going to start wondering why government entities are immunized against manslaughter charges. And those who demanded at gunpoint that the government take the brakes off the state economy are welcome to discover firsthand why an overabundance of caution is preferable to caution that's been carried off by the wind.

This is a state that has decided to lie to everyone, starting with itself. Govern yourself accordingly.

Filed Under: cdc, covid-19, data, florida, guidelines, rebekah jones, reopening, ron desantis, transparency