Searching for stories about Sega here at Techdirt results in a seriously mixed bag of results. While the company has managed to be on the right side of history on issues like SOPA and fan-made games, it has also managed to be strongly anti-consumer on game mods and has occasionally wreaked havoc on the YouTube community, all in the name of copyright protectionism. Despite all of this, Sega has gone to some lengths to successfully craft for itself a public image more accessible and likeable than its long-time rival Nintendo.

Stories like the following will put dents in that image, however. Sega recently ported its new title Sonic Mania to the PC and released it on the Steam platform. The port also included Denuvo DRM and an always-online requirement, except that it (oops!) forgot to tell anyone about either.

I tried loading the Windows version of Sonic Mania while my Steam account was offline. That's when Sonic Mania informed me, in no uncertain terms, that "Steam user must be logged in to play this game."

Turns out, Sega has applied the much-malignedDenuvo copy-protection system to Sonic Mania's PC version—and this Denuvo implementation won't unlock the game for players so long as Steam is operating in "offline mode." Until the game receives an update, Sonic Mania fans hoping to play the PC version in an offline capacity are out of luck. (Your backup option, should you want to do something like board a plane, is to boot the game while connected to Wi-Fi, then disconnect from the Internet and leave the game running in the background until you're ready to play. It's not necessarily an ideal workaround.)

Gamers immediately began complaining both that the DRM was keeping them from playing their legitimately purchased game and that the Steam store page for Sonic Mania was devoid of any notification of Denuvo or its online requirement in the system requirements page, or anywhere else for that matter. Somewhat oddly, a Steam account with the handle of "Sega Dev" responded to the complaints, saying the omission on the store page was a mistake. That mistake has been rectified and the store page now informs buyers of the Denuvo requirement. But that same account also informed Steam users that "Sonic Mania is intended to be played offline", and has promised to investigate the issue.

Even stranger, the PR lead for the Sonic franchise went even further and practically begged for the public to complain to the company about Denuvo and the online requirement.

I simply can't recall ever having seen anything remotely like this, with the PR wing of a company soliciting complaints to corporate in what sure seems like a way to get corporate to move off of a DRM. It seems there is some infighting at Sega over this requirement, though to what level that infighting rises is unknown to me. Any Sega employees reading this are free to contact me and relay your concerns.

Regardless, this is a terrible look for Sega among the gaming community. Including a much-maligned DRM and requiring a single-player game to be online to play it can only have one sort of impact on the company's standing in the public. While Sega has not removed Denuvo from the game entirely, it has since released a patch that allows the game to be played offline. The damage, however, has likely already been done.

A case involving a bogus arrest stemming from a citizen's attempt to record officers has resulted in the denial of qualified immunity to the officers involved. The Eighth Circuit Appeals Court upheld the lower court's decision on both First and Fourth Amendment issues.

Plaintiff Brian Hoyland was awakened by the sound of police activity in his front yard. Opening his door, he found officers trying to arrest his wife, who was the passenger in a car suspected of being involved in reported drag racing. This is what Hoyland did from 30-40 feet away, ultimately resulting in him being arrested for obstruction. From the opinion [PDF]:

Out of concern for their safety, Hoyland moved his children to the back of the house and retrieved a cell phone to record the incident outside. He intended to remain inside but changed his mind when he believed he heard the officers yell “shoot” or “shooting.” He proceeded to switch the porch light on, open his front door, and hold his phone, which was recording, out in front of him.

And this is the reaction he got:

Within seconds, an officer shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the house. Hoyland remained where he stood and began screaming at the officers. He shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and demanded that the officers do their jobs “the right way.” McMenomy again ordered Hoyland to “stay inside.” Immediately following this command, with Hoyland remaining in the doorway, “the arrest decision was made” by McMenomy who shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not resist, raised his hands and laid down on the ground, following the instructions given by the officers. He was taken into custody by McMenomy and Cho without incident.

Since the confrontation was recorded, there is little room for variances between Hoyland and the officers' testimony. As the court sees it, there is no question Hoyland did nothing even remotely approaching "obstruction."

Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone.

The local prosecutor found the charge baseless. The prosecutor stated it was clear Hoyland came out to inform officers of his wife's disability while recording the event. At best, Hoyland's actions were nothing more than a "fleeting interruption." The Appeals Court comes to the same conclusion.

Having failed with the "it was obstruction" argument, the officers attempted to portray Holyand's arrest as a necessity for officer safety. The court finds this no more convincing.

Any fear of danger the officers felt due to Hoyland’s presence cannot justify an arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush when Hoyland emerged from the house. This fear, according to the officers, made Hoyland’s arrest reasonable after he refused to go back inside his home. But the officers are mistaken. However reasonable the command for Hoyland to go back inside may have been, his refusal to do so did not constitute obstruction. As Minnesota law makes abundantly clear, obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction. So arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law.

Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was shouting criticisms at the officers. But “[i]n a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And none of Hoyland’s comments could be reasonably interpreted as rising above scrutiny to create a threat or a danger to police or to constitute obstruction.

This allows Hoyland to continue pursuing his Fourth Amendment claim. The court moves on to the First Amendment. Again, the officers argued there was no stifling of Hoyland's First Amendment rights because a) he was obstructing officers, and b) even if he wasn't, he had no Constitutional right to record a traffic stop. The court spends barely any time discussing the officers' obstruction bullshit. Instead, it concentrates on the officers' misguided assertions, which are backed by a previous court decision that's not nearly as helpful as the officers believe it is.

[T]he officers argue that, under Colten v. Kentucky, Hoyland “had no constitutional right to observe a [felony traffic stop] or to engage the [arresting] officer[s] in conversation at that time.”

[...]

But the officers’ reliance on Colten is misplaced for three reasons. First, the location of the traffic stop in Colten—a busy highway—implicated important concerns of public safety. Here, the arrest took place in a residential area with no other vehicles or persons around. And Hoyland was not standing on the side of a highway observing a traffic stop, but rather standing in the doorway of his own home trying to tell the officers that his wife was handicapped…

Here, Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983 claim against the officers for retaliating against him for exercising his First Amendment rights. Colten, on the other hand, was simply “refusing to move on after being directed to do so . . . without more.”

[L]ater Supreme Court cases make it clear that the First Amendment protects verbal criticism directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Thus Hoyland’s communications were protected activity.

The court goes on to point out Hoyland has a possibly legitimate argument the arrest was made to prevent him from exercising his First Amendment rights.

McMenomy’s deposition testimony clearly shows that the arrest decision was not made after Hoyland had ignored the initial order to go back inside. It was only after Hoyland had stood in the doorway shouting criticisms and messages about his wife’s physical disability that the arrest decision was made… The arrest decision was not made when Hoyland first disobeyed an order, but only after he had begun exercising his First Amendment rights.

Because the charge was bogus and the officers had no probable cause for Hoyland's arrest, both his Constitutional claims will have to be faced by the government defendants. As the court concludes, immunity is a privilege, not a right, and should be treated as such by courts and those seeking to avail themselves of it.

Police officers have a tough job. They must confront dangerous situations and make difficult decisions in short time frames. This is why we offer the protection of qualified immunity—to insulate officers from the constant threat of litigation while serving and safeguarding their fellow citizens. But to receive that protection, we must find as a matter of law that the officers acted within the confines of the Constitution. They must avoid arresting persons without at least arguable probable cause. They must not take adverse actions against persons for exercising their First Amendment rights. Looking at the facts of this case, we cannot hold as a matter of law that the officers acted constitutionally.

The court doesn't go so far as to establish a right to record police, but it does offer up enough precedential cases to make any arguments to the contrary unlikely to find sympathy with the judges. As for Hoyland, he at least has a chance to make his case at the lower level and receive some sort of compensation for an interaction with officers that began with them ordering him to stop filming and ended in a bogus arrest.

Leaving aside the AAA publishers for a moment, the video game industry is actually starting to get really good on recognizing better ways to react to copyright infringement other than pounding their fists on their tables and knee-capping their customers with DRM. This still occurs, of course, but we've also seen stories of publishers treating pirates as potential customers with whom it's worth connecting, giving away Steam keys on torrent sites, or just playfully messing with pirates instead of screaming at them. These efforts generally are done to the tune of great PR and the humanization of a content company that can only help their businesses.

And, thankfully, it's not a trend that is slowing down. Acid Wizard Studio, publishers of the game Darkwood, made some recent news by deciding to put its own game on the Pirate Bay.

On torrent site The Pirate Bay, typically the domain of illegal rips of media, one username among dozens uploading the horror game Darkwood stands out: the game’s publisher. Today, the Poland-based Acid Wizard Studio uploaded their own game for free with “no catch, no added pirate hats for characters,” their torrent description reads.

Now, why Acid Wizard Studio did this is somewhat unique in these kinds of stories. In part, the studio says it did this because it doesn't want to keep the game from those who truly cannot afford it. It aimed this message particularly at children who game at the pleasure of their parents' credit card bills. But while we've seen that sort of thing done before, the studio also did this because it believes the Steam key reselling business is the greater evil compared with piracy.

Acid Wizard saw a comment from someone who refunded the game because they didn’t want their parents to get stressed out over the bill, Acid Wizard writes on Imgur.

“If you don’t have the money and want to play the game,” they say, “we have a safe torrent on the Pirate Bay of the latest version of Darkwood.” They explain that a flood of emails asking for free Steam keys helped bolster their decision to upload a free Darkwood torrent to The Pirate Bay, and asked that those who can afford it later buy it discounted on Steam. It’s an interesting move that spits in the face of shady key-selling services like G2A, where Acid Wizard figures a lot of the free keys they’d send out would go. “This practice makes it impossible for us to do any giveaways or send keys to people who actually don’t have the money to play Darkwood,” Acid Wizard writes. “Please, don’t buy it through any key reselling site. By doing that, you’re just feeding the cancer that is leeching off this industry.”

The replies to the studio's message were almost universally positive, with many promising to try the game out via the torrent and buy it afterwards if they liked it. How many of those people ever would have tried the game out at all, illlicitly or otherwise, is impossible to determine, but it seems obvious that the amount of additional sales revenue that will be generated because of this is not zero. In other words, the publisher gets the good PR of treating people well, gets to make a point about a key-reselling industry that is genuinely pretty scummy, and picks up some indeterminate number of sales in the process.

That's the kind of nimble response to piracy the AAA publishers should recognize as a winning strategy.

The government will be paying its opponent's legal fees after needlessly drawing out FOIA litigation, the Ninth Circuit Appeals Court has decided [PDF]. The First Amendment Coalition sued the Department of Justice after it refused to produce documents discussing the legal rationale for extrajudicial drone strikes targeting American citizens.

The legal memo FAC sought was the same legal memo the ACLU and New York Times sued the DOJ for refusing to release. (Or so the FAC thought. But its litigation -- along with the ACLU/NYT litigation -- made it clear the government was holding on to more than one legal memo.) In the NYT/ACLU case, the Second Circuit Court told the DOJ to cough up its justification for killing Anwar al-Awlaki, pointing to several public comments made about the drone strike by prominent US government officials. The court wasn't interested in the DOJ's arguments something publicly discussed frequently would be too "sensitive" to put in the hands of the ACLU and New York Times.

The DOJ made the same arguments in this case, but the Second Circuit decision undoes its attempt to fend off FAC's legal fees claims. Factoring into the Ninth's conclusions is the leak of a white paper by the US government providing its legal analysis of extrajudicial drone strikes. This was then followed by an official release of the same white paper.

This leak -- and the court-ordered release of the DOJ's legal memo to the ACLU and New York Times -- prompted the FAC to ask the district court to vacate its decision in favor of the DOJ's secrecy and award it legal fees, since it was seeking the same document. This motion was filed nearly three years ago, just to give you some idea how long the DOJ has dragged out a losing legal battle.

The Appeals Court notes the documents might not have been released by the government if it hadn't been for its entanglement in multiple FOIA lawsuits. As the court points out, the fact that the government voluntarily handed the documents to the FAC after the drone strike white paper's official release doesn't absolve it of racking up FAC's legal fees for no apparent reason.

FAC was met with abject resistance throughout the entire litigation until the OLC-CIA memo was produced roughly two and a half years after the lawsuit was initiated, and almost a year and seven months after the Government waived any secrecy or privilege with the official release of the White Paper.

Additionally, FAC's litigation is possibly the only reason the public's now aware there are multiple legal memos justifying extrajudicial killings of American citizens.

There is no question that the Second Circuit’s decision in the SDNY litigation was an impetus for FAC to continue its litigation. But what actually triggered the release of the OLC-CIA memo was that FAC sought to vacate the district court’s grant of summary judgment. It was the appellant’s “dogged determination,” therefore, that led the district court to “direct” the parties to discuss whether the litigation was moot, and which resulted in the Government’s decision—as acknowledged by the lower court—to “voluntarily disclose[] the CIA memorandum to [FAC].” Because of FAC’s efforts, the public then learned that the OLC-DOD memo was not the first memo addressing the justification for the drone attack, nor was it identical to the prior OLC-CIA memo. Plaintiff’s litigation, therefore, “triggered the release of additional or key documents.”

Summing it up, the Ninth Circuit Appeals Court has harsh words for both the DOJ and the lower court.

There is no reason why the district court failed to recognize, as the Second Circuit did, that the official release of the White Paper—coupled with all the prior public statements of high-ranking Government officials— constituted a waiver of any secrecy and privilege that the Government had asserted. The district court, therefore, erred in granting summary judgment and dismissing the complaint. But for this error, the district court litigation would have ended earlier. Thus, FAC had to endure unnecessarily protracted litigation. It is counterintuitive to punish FAC for expending additional legal fees to pursue the litigation, when it would have sooner been entitled to the release of both memoranda—and the right to recoup its counsel fees—if not for the district court’s error.

The lawsuit now goes back to the lower court to determine how much the government will be paying FAC for the DOJ's protracted refusal to even acknowledge the existence of drone strike memos government officials couldn't stop talking about.

For years now, we've discussed why it's problematic that people are demanding internet platforms moderate more and more speech. We should be quite wary of internet platforms taking on the role of the internet's police. First, they're really bad at it. As we noted in a recent post, platforms are horrendously bad at distinguishing abusive content from those documenting abusive content and that creates all sorts of unfortunate and bizarre results, with those targeted by harassing content often having their own accounts shut down. On top of that, the only way to actually moderate content at scale requires a set of rules, and any such set of rules, as applied, will create hysterically bad results. And that's because the scale of the problem is so massive. It's difficult for most people to comprehend even slightly the scale involved here. As a former Facebook employee who worked on this stuff once told me, "Facebook needs to make one million decisions each day -- one million today, one million tomorrow, one million the next day." The idea that they won't make errors (both of the Type 1 and Type 2 category) is laughable.

And it appears that the scale is only growing. Facebook has now admitted that it shuts off 1 million accounts every single day -- which means that earlier number I heard is way low. If it's killing one million accounts every day, that means it's making decisions on way more accounts than that. And, the company knows that it gets things wrong:

Still, the sheer number of interactions among its 2 billion global users means it can't catch all "threat actors," and it sometimes removes text posts and videos that it later finds didn't break Facebook rules, says Alex Stamos.

"When you're dealing with millions and millions of interactions, you can't create these rules and enforce them without (getting some) false positives," Stamos said during an onstage discussion at an event in San Francisco on Wednesday evening.

That should be obvious, but too many people think that the answer is to just put even more pressure on Facebook -- often through laws requiring it to moderate content, takedown content and kill accounts. And, when you do that, you actually make the false positive problem that much worse. Assuming, for the sake of argument, that Facebook has to kill 10% of all the accounts it reviews, that's 10 million accounts every day. If the punishment for taking down content that should have been left up is public shame/ridicule, that acts as at least some defense to get Facebook to be somewhat careful about not taking down stuff that it shouldn't. But, on the flip side, if you add a law (such as the new one in Germany) that puts criminal penalties on social media companies for leaving up content that it wants taken down, you've changed the equation.

Now, the choice isn't between "public ridicule vs. bad person on our platform" it's "public ridicule v. criminal charges and massive fines." So the incentive for Facebook, and other platforms changes such that it's now encouraged to kill a hell of a lot more accounts, just in case. So suddenly the number of "false positives" is going to sky rocket. That's not a very good solution -- especially if you want platforms to support free speech. Again, platforms have every right to moderate content on their platforms, but we should be greatly concerned when governments are forcing them to moderate in a way that may have widespread consequences on how people speak, and where those policies can tilt the scales in often dangerous ways.

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We've always had difficulty understanding why copyright or trademark law should even have "criminal" components to them. It seems fairly obvious that they can be handled easily enough with civil actions, without involving law enforcement. And this matter is only reinforced every time law enforcement tries to get involved in copyright and trademark enforcement. They seem oddly... almost unable to comprehend that infringement is different than theft and that it requires a different thought process and analysis. Time and time again, we see this crop up, both in the US and around the world. And it remains consistent no matter who is in charge. Under Obama, the DOJ was terrible on intellectual property issues, and that's now carrying over to the Trump administration.

Deputy Attorney General Rod Rosenstein just gave a talk at the Interpol International Law Enforcement IP Crime Conference -- which, as you can imagine, is not a place where nuanced discussions on infringement are expected. And Rosenstein lived down to low expectations in delivering a speech full of silly analogies and misleading statements that show little understanding of the deeper underlying issues when it comes to copyright, trademark and patents. It starts out with a particularly silly analogy:

As a child, I learned a fable about a hen that finds some wheat grains and asks other animals for help in planting them. Nobody is willing to help, so the hen does the work itself. At every stage of the process – harvesting the wheat, threshing it, milling it into flour, and baking the flour into bread – nobody wants to help. But when the work is finished, everyone wants to eat the bread.

Modern intellectual property is more complicated than baking bread, but the same fundamental principle applies. If we let some people steal things without compensating the people who produce things, the incentive to create new things will be lost.

Huh? The famed Little Red Hen story isn't about "letting some people steal things without compensation." It's got nothing to do with that. But, already we're off on the wrong foot as Rosenstein has leapt to a misleading understanding of intellectual property issues in the first place -- comparing a finite resource with an infinite one, and falling back on a silly -- and legally incorrect -- claim of "stealing."

Similarly, "the incentive to create new things will be lost" is a familiar trope, but one that is simply proven wrong time and time again by history. As we've noted, over the past twenty years or so, even as the internet has enabled ever greater piracy, it has also created an astounding revolution in new content production. The problem is that so many people assume -- incorrectly -- that the "incentive" for creation is getting the copyright, patent or trademark, rather than the many other incentives. Many of those other incentives do involve making money, but not necessarily by using intellectual property law to do so. And for many, it's not the monetary incentives that drive creation at all. Arguing that infringement decreases incentive to create is simply not borne out by history. It shows a level of ignorance that is disappointing, if not surprising, for a top DOJ official.

Intellectual property enforcement assures innovators and investors that when they devote time and money to develop new concepts and products, they will reap the financial rewards.

No, it doesn't, actually. There is no guarantee that anyone reaps any financial awards. It's not a system of welfare for creators. And, even if you make the argument that the laws themselves help structure a business model that allows the holders of the copyright, patents and trademarks (not necessarily the creators of the underlying works) that still has nothing to do with criminal enforcement. And, again, there are many, many business models that don't rely on copyright, patent or trademark law to "reap the financial rewards." Insisting that those are necessary is short sighted and misleading.

If governments fail to protect intellectual property rights, the immediate consequence will be monetary losses to individual property owners.

Not necessarily. This assumes that any infringing copy is a lost sale -- a myth that also is rarely supported by evidence.

But the long-term impact will be less investment of time and resources, and fewer innovations for society at large.

Another myth, not supported by actual data. As we noted above, even as internet piracy increased, so did the development and output of content.

This conference represents an ongoing commitment by law enforcement, industry partners, and other stakeholders from all over the world to come together and identify ways to protect intellectual property and the industries that fuel the modern global economy. These protections are critical to almost every sector of the economy, from new, life-saving drugs and medical techniques that allow us to live longer and healthier lives; to computers and software that run the devices we use to navigate the airplanes and trains and taxi cabs that brought us here today; to applications on the smartphones we use to purchase coffee.

The thing is, many in the tech industry don't want the DOJ getting into their business. They don't need "protection." They just want to innovate. The people making apps on smartphones these days are often the ones leading the charge against over aggressive enforcement of IP laws. Yet, here, Rosenstein is pretending that he represents their views.

One of our challenges is that intellectual property crime does not look like traditional crime, where the perpetrator takes a physical item directly from the victim. Everybody understands that it is wrong to walk into a business and take property without permission. In contrast, the individual act of downloading a movie from a file-sharing site, or buying a cheap knockoff of a name brand item, may seem harmless. But the accumulated economic loss from thousands or millions of those illegal transactions can destroy legitimate businesses, eliminate the incentive to invest in innovation, and undermine the rule of law.

It doesn't look like traditional crime because it's not traditional crime. And in many cases it seems harmless because it is harmless. Clearly, that's not true in all cases, but in many, it is. Many people downloading a movie would never pay for it in the first place. There's no economic loss there. Many people buying a cheap knockoff brand item, would never buy the full price item. There's no loss there. In fact, multiple studies have shown that when it comes to knockoff goods, the purchase is often an aspirational purchase. That is, they know they're buying a fake, but they buy the knockoff and end up buying the real version later, when they can afford to. In other words, knockoffs and copies often act as cheap or free marketing for more expensive products.

But Rosenstein can't even consider that as a possibility. Rosenstein's piece goes on in this vein for quite some time, and at some point there's no use debunking each and every point. The problem here is really the simplistic "law enforcement" mindset that insists that infringement is theft (it's not) and that any infringement must be bad (even though it's not) and damaging to society (even though it's not). Is it really too much to hope for officials who can actually understand the nuance related to these issues?

For years, HBO and owner Time Warner fell into the trap of telling customers what they wanted instead of the other way around. You might recall that HBO and Time Warner spent years waging a rather scorched earth assault on piracy and other "unauthorized viewing," going so far as to poison show torrents and shut down "Game of Thrones" viewing parties. A major problem with this approach is that HBO wasn't fully providing pirates an alternative. While HBO was offering streaming to existing cable customers, it spent years ignoring consumer calls for a standalone streaming video platform that didn't require cable.

There were any number of reasons for this myopia, the biggest being that like any good legacy company, HBO and Time Warner execs were afraid of wounding the traditional cable cash cow (even if said cow was already showing signs of notable mortality at the time). More specifically, HBO was afraid of hurting the cozy, heavily-subsidized relationship HBO enjoys with many cable providers, who all but give the channel away on occasional promotion. So while offering a standalone streaming platform was essential in evolutionary context, HBO consistently insisted it just couldn't make the economics work for such an option.

So while Time Warner and HBO execs were busy trying to downplay cord cutting as a fad, the piracy of HBO programs continued to smash BitTorrent swarm and other piracy records. That was until March of 2015 when HBO was forced to finally acknowledge the changing tides and launched HBO Now, its standalone streaming app. Fast-forward a little more than two years, and that decision is looking pretty good now in hindsight:

The “Game of Thrones” effect is in full force for HBO NOW, the premium network’s streaming service for cord cutters. According to new data from app market data provider App Annie, the iOS and Android versions of the HBO NOW mobile app have together generated $19 million in U.S. revenue for the two months containing the airing of “Game of Thrones” Season 7, as of Monday, August 21.

App Annie says it expects HBO NOW’s mobile apps to pull in well over $20 million by the end of the month.

The show’s outsized popularity has again sent the HBO NOW app flying up the Top Revenue charts on the iOS App Store, too. Roughly one month after the Season 7 premiere, HBO NOW became the number one app in terms of Overall iPhone revenue. It grabbed that spot on August 16th, 2017, and remained the top app by revenue for two more days.

That's pretty good for a service executives had to be dragged kicking and screaming toward, though you'd wonder how much more successful the platform could have been with an earlier start. And while "Game of Thrones" piracy is still booming, and HBO is still sending nastygrams to user ISPs in the hopes of thwarting it, at least HBO is now offering these users a legitimate alternative. An alternative that could provide more value over time if HBO experiments with price, or works on partnerships with smaller ISPs that have been contemplating getting out of traditional cable TV because they lack the leverage to compete with industry giants.

It's a similar predicament that's now facing ESPN, which, like HBO, spent years believing it could stand in the wings nursing its cash cow with a dumb look on its face while the entire pay TV ecosystem shifted under its feet. With cord cutting, phase one usually involves denying that the trend is happening, followed by acknowledging the trend but insisting it's some kind of fad. That's usually followed by the pretense that you saw and prepared for the trend all along despite all the data showing the opposite. It's usually good to throw in some make believe about how you're the one that gets to decide when to adapt for good measure

There's no doubt that adaptation will make these companies less money over the short term, but executives often struggle to realize a core truth: they don't have a choice. Cord cutting and the shift to IP video is happening whether these executives like it or not, and they can choose to stand mid-river in futile opposition to the flow, or adapt and take an early hit as the legacy cash cow dies, but be much better positioned for the future, whatever consumers determine they want it to look like.

In a move that will have major implications for the online world in India and beyond, nine Supreme Court judges have ruled unanimously that privacy is a fundamental right under the Indian Constitution. As part of a decision spanning 547 pages (pdf) they declared:

Privacy is the constitutional core of human dignity.

The case was brought as a result of a legal challenge to India's huge biometric database, Aadhaar, whose rise Techdirt has been charting for some years. A post on the EFF Web site explains the legal background, and why the Supreme Court decision was necessary:

The right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week's judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.

Now that a solid constitutional foundation for privacy in India has been affirmed, other judges will proceed with examining the legality of Aadhaar in the light of the many relevant points made in the ruling:

The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar.

A case challenging WhatsApp's new privacy policy that allows content sharing with Facebook is also certain to be affected by the ruling, but the ramifications go far beyond Aadhaar and the digital world. As an analysis in the Economic Times notes, the judgment could lead to the decriminalization of homosexuality in India, as well as affecting laws that restrict a person's right to convert to a different religion, and state-level rules that impose restrictions on animal slaughter. The breadth of those possible impacts underlines just how epoch-making last week's decision is likely to prove.

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We've noted time after time how the trend du jour in online media is to kill your news comment section, muzzle your valuable on-site community, then couch the decision under all manner of disingenuous prattle. Reuters and Recode, for example, killed visitor news comments several years ago because, they claimed, the companies really value conversation. The Verge also tinkered with killing comments, purportedly because it just really valued relationships. As we all know, nothing quite "builds relationships" and gets the conversation going like a muzzle, a wave, and a swift digital kick in the ass.

Other websites couch their decision to mute their users under the pretense that it's just an "experiment," and the website will return with something more interactive and wonderful down the line. More often than not, this never happens. Case in point is NPR, which announced last summer that it too would be banning all public community feedback out of a deep rooted love for building community and audience engagement:

"After much experimentation and discussion, we've concluded that the comment sections on NPR.org stories are not providing a useful experience for the vast majority of our users. In order to prioritize and strengthen other ways of building community and engagement with our audience, we will discontinue story-page comments on NPR.org on August 23."

Ironically, public comments on NPR's post at the time were hugely negative, with numerous loyal readers saying the act of pushing them over to Facebook was, in effect, a giant middle finger to the readership. But because interesting discourse and community can't always be directly monetized by bean counters, this blowback was largely ignored. While NPR hinted that it might bring back comments eventually after some experimentation, a new blog post points out that won't be happening. Why? NPR traffic went up anyway despite the decision:

"At the time commenting was ended, there was speculation that the number of users coming to NPR.org would drop. In fact, the number of users for the May-to-July period grew 18 percent in 2017 compared with the year-earlier period, according to Google Analytics numbers Goo provided. (Year-over-year monthly growth has been as high as 37 percent.)"

Except the spike in NPR traffic many have had nothing to do with comments one way or the other, and could be easily attributable to the fact that the current U.S. political environment has obtained historical levels of batshit. It's also myopic to weigh the benefits of news comments by just traffic. Comments, when managed to minimize idiocy, provide an easy, public way to hold writers and publishers accountable for misleading claims or story errors in a highly visible location. Though few publishers can admit it, eliminating this public forum and returning to era of non-transparent letters to the editor is a major incentive for this shift.

At the end of the day, this fashionable assault on ye olde comment section has little to do with valuing community and conversation, and everything to do with illusory control and trying to save money. NPR admitted as much to the latter last year when asked about the decision on Twitter:

Except this narrative that giving a damn about your online community has to be time consuming and expensive is also not really supported by the facts. Studies have shown it's not really that hard to cultivate a healthier on-site comment section by simply having site employees and writers show up and treat the readership like human beings. Again, though, because the act of actually caring about quality discourse can't be directly monitored and displayed on a pie chart, it's being ignored. And that's a mistake in an era where news as a community conversation is more important than ever.

Will the world end with the loss of online news comments? No. But they do provide users with an easy and transparent way to debate, discuss and treat news as exactly what it is in the modern era: a conversation. Removing this public forum is a disservice to the news industry at large, and pretending it's being done out of some noble regard for higher human interaction only adds insult to injury.