The Open Internet Under Assault
The Open Internet Under Assault
The Open Internet Under Assault

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    It’s not at all difficult to look at all that went on over the last couple of weeks and wonder if the Open Internet was only a grand dream that never existed, or was a phenomenon that appeared all too briefly and then was gone.  Either way, there are more losers than winners.

    Once, the online world (which encompasses the pre-Internet days) was, to use the expression, an “electronic frontier.”  Congress did what it could to protect the nascent environment, recognizing the great values it could bring.  It ruled out taxes on Internet access.  It created a safe harbor to protect online providers (in the pre-Internet days) from liability for material that rankles those subject to the rancorous online world.  The complaints go back to the start of such protection, continue even through today, including those voiced by New York hotel operators critiqued by customers. 

    (We could observe that those who regularly spout the “Don’t regulate the Internet” meme are 14 years late.  The safe harbor provisions in the 1996 Telecommunications Act and 1998 Digital Millennium Copyright Act “regulate” the Internet by giving some legal protection from liability to online providers in content disputes, a concept similar to proposals requiring online providers not to discriminate in their content delivery would do.  But we digress.)

    The online world seemed almost as a DMZ from the regular business world, even as the Internet ecosystem was built by, and populated by, millions of web sites from those created by big companies and individual people.  They combined to create something new and fresh, for a while at least.

    That was then.  Now, policymakers make noise about how important the Internet is, but do little to protect and preserve the environment, which allowed the unique properties of openness and creativity to flourish.  Now, for some, the Internet world is simply a collection of more properties to be used as leverage in down-and-dirty business transactions. As usual, consumer desires, even if not legal rights, are getting left in the virtual dust.

    Open Internet Expands Debate

    The debate should revolve around what government policy will be to protect the Open Internet.  That’s a larger question than Net Neutrality, which deals with an ISP playing favorites with traffic. The Cablevision-Fox dispute over payment for programming is one example of the larger issue.  Having TV stations and cable operators cut each other off is, unfortunately, become standard operating procedure (SOP) for these “retransmission consent” deals.  Consumers lose regardless. The same contract runs out for Fox and Dish on Nov 1.   Fox blocking Cablevision’s Internet customers is the new wrinkle.

     More recently, the big broadcast networks said they would not allow their online offerings to be viewed by consumers using Google TV.  And the point of that exercise is what, exactly?  To siphon off some money from Google?  To hamper the development of online video?  To keep viewers from using the search engine to find online content that the networks don’t want the viewers to find – torrents of their shows, perhaps to be watched on a big television rather than a computer screen?  Google TV is a Web browser, albeit one optimized for use on a TV. 

    Sony has already made a TV incorporating Google TV software, on the assumption that combining the TV experience with the Web experience would be a good one for consumers.   There shouldn’t be any disagreement about that.  Sony, Logitech (which also makes an access device using Google TV) or any other company, should be able to build a device on whatever software platform it wants that allows people to have access to the Web and/or TV.

    Under normal situations, the gatekeepers are the Internet Service Providers (ISPs) and they are the ones at whom Open Internet policies are usually targeted.  The FCC’s 2005 Open Internet policy statement started from the perspective that the Commission has jurisdiction over the access services that ISPs provide – a perspective now thrown into doubt by a court ruling and the disinclination of the FCC leadership to resolve the problem.  The FCC’s policy that “consumers are entitled to access the lawful Internet content of their choice,” could apply to other than ISPs as a matter of general principle.  That’s the way the Internet should operate, and that’s a policy that could be supported across the government.

    ‘Browser Wars’ Valuable History

    The U.S. Appeals Court for the D.C. Circuit, in upholding a lower court’s ruling that some of Microsoft’s licensing practices were anti-competitive, demonstrated that there are limits.  (Note: in reading the quote, where it says “give rise to tort liability,” non-lawyers should substitute the words “be held responsible for smacking someone over the head.”)  The court said:

     “Microsoft’s primary copyright argument borders upon the frivolous. The company claims an absolute and unfettered right to use its intellectual property as it wishes… That is no more correct than the proposition that use of one’s personal property, such as a baseball bat, cannot give rise to tort liability. As the Federal Circuit succinctly stated: ‘Intellectual property rights do not confer a privilege to violate the antitrust laws.’”


    There is more to the government than the FCC, particularly in a case in which anti-competitive behavior is inflicted on an ISP and its customers, as opposed to anti-competitive behavior by an ISP.  As PK said in our Oct. 21 letter to the Commission on the Cablevision-Fox dispute, “network neutrality is not the end-all be-all of consumer protection and these practices could threaten the integrity of the open Internet as much as anti-competitive behavior by telecommunications providers.”  PK said those kinds of incidents “should be investigated by the FCC, FTC, Justice Department, or other agencies, according to their jurisdiction.”

    In setting terms to dictate which platform for viewing a Web site is acceptable, the TV networks are regressing a decade to the days of the Browser Wars.  Back then, Web site owners tried to pick which browser would work best, or work not at all, with the content on the site. The fight was primarily between Netscape Navigator, the first true browser, and Microsoft’s Internet Explorer.  Microsoft “won” by integrating IE with Windows at no cost and driving Netscape out of business. Today, the Microsoft browser has less than half of the browser market, down from having two-thirds of the market two years ago while trailing not far behind is Firefox, the open-source descendent of Netscape. Web standards are more tolerant of differing browsers now also.

    Some people argue that dictating how a site will be viewed, either by which people or with which technology, is acceptable behavior because the intellectual property is privately owned, and the owners can decide what to do with it.  That’s true, only up to a point.

    Federal Communications Commissioner Michael Copps in his statement on the Cablevision-Fox situation, as he usually does, captured the dynamic perfectly:

    “We must also understand that these seemingly ‘old media’ debates can be used against the new media of the digital age, too. For a broadcaster to pull programming from the Internet for a cable company’s subscribers, as apparently happened here, directly threatens the open Internet. This was yet another instance revealing how vulnerable the Internet is to discrimination and gate-keeper control absent clear rules of the road.”

    That behavior of blocking sites, or of having a site owner determine which software will be able to access the site, shouldn’t be tolerated if an Open Internet is the goal of U.S. policy.   If it isn’t our policy, to be enforced by the FCC, antitrust authorities, then the Web as we know it will disappear even more rapidly than it now is.