It\u2019s 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.\u00a0 Either way, there are more losers than winners.<\/p>\n
Once, the online world (which encompasses the pre-Internet days) was, to use the expression, an \u201celectronic frontier.\u201d\u00a0 Congress did what it could to protect the nascent environment, recognizing the great values it could bring.\u00a0 It ruled out taxes on Internet access.\u00a0 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.\u00a0 The complaints go back to the start of such protection, continue even through today, including those voiced by New York hotel operators<\/a> critiqued by customers.<\/p>\n (We could observe that those who regularly spout the \u201cDon\u2019t regulate the Internet\u201d meme are 14 years late.\u00a0 The safe harbor provisions in the 1996 Telecommunications Act and 1998 Digital Millennium Copyright Act \u201cregulate\u201d 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.\u00a0 But we digress.)<\/p>\n 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.\u00a0 They combined to create something new and fresh, for a while at least.<\/p>\n That was then.\u00a0 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.\u00a0 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.<\/p>\n Open Internet Expands Debate<\/strong><\/p>\n The debate should revolve around what government policy will be to protect the Open Internet.\u00a0 That\u2019s 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.\u00a0 Having TV stations and cable operators cut each other off is, unfortunately, become standard operating procedure (SOP) for these \u201cretransmission consent\u201d deals.\u00a0 Consumers lose regardless. The same contract runs out for Fox and Dish on Nov 1.\u00a0\u00a0 Fox blocking Cablevision\u2019s Internet customers is the new wrinkle.<\/p>\n More recently, the big broadcast networks said they would not allow<\/a> their online offerings to be viewed by consumers using Google TV.\u00a0 And the point of that exercise is what, exactly?\u00a0 To siphon off some money from Google?\u00a0 To hamper the development of online video?\u00a0 To keep viewers from using the search engine to find online content that the networks don\u2019t want the viewers to find \u2013 torrents of their shows, perhaps to be watched on a big television rather than a computer screen?\u00a0 Google TV is a Web browser, albeit one optimized for use on a TV.<\/p>\n Sony<\/a> 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.\u00a0\u00a0 There shouldn\u2019t be any disagreement about that.\u00a0 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.<\/p>\n Under normal situations, the gatekeepers are the Internet Service Providers (ISPs) and they are the ones at whom Open Internet policies are usually targeted.\u00a0 The FCC\u2019s 2005 Open Internet policy statement started from the perspective that the Commission has jurisdiction over the access services that ISPs provide \u2013 a perspective now thrown into doubt by a court ruling and the disinclination of the FCC leadership to resolve the problem.\u00a0 The FCC\u2019s policy that \u201cconsumers are entitled to access the lawful Internet content of their choice,\u201d could apply to other than ISPs as a matter of general principle.\u00a0 That\u2019s the way the Internet should operate, and that\u2019s a policy that could be supported across the government.<\/p>\n ‘Browser Wars’ Valuable History<\/strong><\/p>\n The U.S. Appeals Court for the D.C. Circuit, in upholding a lower court\u2019s ruling that some of Microsoft\u2019s licensing practices were anti-competitive, demonstrated that there are limits.\u00a0 (Note: in reading the quote, where it says \u201cgive rise to tort liability,\u201d non-lawyers should substitute the words \u201cbe held responsible for smacking someone over the head.\u201d)\u00a0 The court said:<\/p>\n \u00a0\u201cMicrosoft’s primary copyright argument borders upon the frivolous. The company claims an absolute and unfettered right to use its intellectual property as it wishes\u2026 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: \u2018Intellectual property rights do not confer a privilege to violate the antitrust laws.\u2019\u201d<\/p><\/blockquote>\n 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.\u00a0 As Public Knowledge said in our Oct. 21 letter to the Commission on the Cablevision-Fox dispute, \u201cnetwork 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.\u201d\u00a0 Public Knowledge said those kinds of incidents \u201cshould be investigated by the FCC, FTC, Justice Department, or other agencies, according to their jurisdiction.\u201d<\/p>\n 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.\u00a0 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\u2019s Internet Explorer.\u00a0 Microsoft \u201cwon\u201d by integrating IE with Windows at no cost and driving Netscape out of business. Today, the Microsoft browser has less than half<\/a> 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.<\/p>\n