Now that the FCC has delivered a smackdown to Comcast for its sketchy anti-BitTorrent activities, it's about time that some other company stepped up to the plate and breathed life into the Net neutrality debate. Surveillance State is happy to report that the Walt Disney-owned ESPN sports network, through its selective blocking of people from particular Internet service providers, may very well wake the sleeping giant that is Net neutrality.
ESPN360.com bills itself as the premier destination for streaming access to live sports events. If the sport or team you love isn't important enough to be shown on cable TV, no fear, ESPN will stream it to you online for free. Well, that is if you a subscriber to the right Internet service provider.
ESPN's warm welcome to customers of ISPs that have signed deals.
(Credit: ESPN360)Customers of AT&T DSL and Verizon's Fios services, along with approximately 20 more ISPs, can have free, 24-hour per day access to ESPN's exclusive sports content. Customers of Comcast, Cox, and hundreds of other ISPs, both big and small, are left out in the cold--forbidden to access content that ESPN has, via exclusive contracts, guaranteed that you cannot obtain via any other means in the U.S.
Love Italian soccer and get your Internet access through Comcast? Too bad.
After telling out-of-luck users that their ISPs haven't coughed up funds for their customers to access ESPN360, the sports network informs them that AT&T customers do have access, and helpfully provides them with a toll-free number that they can call to make the switch to that ISP. How nice of ESPN.
ESPN's message to Comcast's customers
(Credit: ESPN360.com)There are many reasons why an ISP would decide against paying ESPN for its premium Web content. A spokesperson for Cox Communications told a journalist back in 2006 that signing on to carry ESPN360 would require Cox to burden all of its customers with additional costs--even those who don't want the service.
Many customers in the United States still have no real choice for their ISP. For example, if you live out in rural Montana and the one cash-starved regional ISP that offers broadband Internet access hasn't agreed to ESPN's shakedown effort, you have no options.
Not surprisingly, this discriminatory policy concerns Ben Scott, policy director at Free Press, the group leading the fight against Comcast's anti-BitTorrent filtering and other foes of Net neutrality. When asked for his view, he issued the following statement:
ESPN360 raises the unsettling prospect that each ISP will someday have its own distinctive "Internet experience" that includes all kinds of exclusive content in parallel walled-gardens. That is a troubling vision for anyone that values an open media system shared by all Internet users alike.
Most interesting, I suppose, is ESPN's policy of discriminating against particular ISPs, while at the same time giving free access to any user visiting the site from a U.S. military or university Internet connection; that is, users coming in via a .edu or .mil IP address get to view the sports content without any money changing hands between ESPN and Uncle Sam.
While the decision to support the troops (via free access to European soccer) is a noble one, the decision to give college students a free ride is extremely interesting. After all, the major media companies have shown no real restraint in trying to shake down university users--at times, taking thousands of them to court for their attempts to download content for free.
The cynical among us might perhaps see this as a Joe Camel-esque tactic--offer free access when they're young, hope that they develop a habit, and once they graduate or leave the military, they'll look for an ISP that has cut a deal with ESPN.
ESPN spokesman Paul Melvin dismissed my cynicism, explaining the decision to offer free service to these millions of Americans:
These groups are not commercially served by an ISP, and they are not likely to be commercially served in the reasonably foreseeable future. Given this, there is no reasonable chance that we could strike a deal with a retail ISP, nor that the market will continue to grow and offer them greater choice. As a result we adjusted to these specific circumstances.
To try to understand how government regulators would see this issue, I turned to Rep. Rick Boucher (D-Va.), one of the most powerful members of Congress in issues related to telecommunications and Net neutrality.
[This issue has] nothing to do with network neutrality debates, which focus on the practices of the broadband providers. What is in question, is the practice of a content provider, a website owner, in terms of how it chooses to make its content available ... I don't see it as a matter for policy makers to get involved in. I see it as a matter for private contracts, to be determined by content providers.
The congressman is correct in that this is not a traditional Net neutrality conversation per se, since that term usually applies to discrimination by the company owning the "last mile"--the connection to a user's home. Perhaps a new term will need to be invented by the "Save the Internet" crowd, so as not to further dilute the "Net neutrality" phrase. However, what does concern me is the rather shameless attempt by ESPN to shake down big ISPs, while at the same time giving away its content to millions of college students for free.
Boucher added that:
If ESPN had market power, i would agree that there would be anti-trust issues. Companies that have market power have different market obligations. [However], this is one web site that is putting up sports content, competing with others. Even though ESPN is popular, I don't think [anti trust] applies. It might in TV broadcast, but certainly not on the Internet.
While I respect the congressman (and am a huge fan of his work in fighting against the dreaded Digital Millennium Copyright Act), I think he is on the wrong side of this issue. Due to the exclusive contracts that ESPN has negotiated with various sports associations, the company does have market power. If you love European soccer or another sport that can't draw enough viewers to justify TV coverage, there is simply no other (legal) way to view live sports events in the U.S. ESPN is the only game in town.
Libertarians out there will, like the congressman, argue that ESPN is a private company and has a right to decide which customers can access its content. If ESPN offered a generic service (like e-mail, horoscopes, or photo sharing), that would certainly be true. However, because ESPN has exclusive contracts for U.S. distribution of many types of sports content, I don't think these same rules apply. ESPN shouldn't be able to get exclusive access to this content, and then deny it to millions of Americans.
Yes, the content is expensive--which is why ESPN could allow the customers of non-kickback-paying ISPs to pull out their credit cards, and sign up for an individual account in order to view these games. Unfortunately, this is not something ESPN is interested in. Explaining this lack of an individual subscriber option, ESPN's Paul Melvin simply stated that "it is not the business model that we've chosen."
Apple's recent announcement of the iPhone application software development kit is drawing criticism from Net neutrality activists. While the company has previously angered many for its practice of bricking unlocked phones, it is now being accused of anticompetitive behavior.
Could Apple take Comcast's place as the poster child for the Save The Internet movement? Furthermore, by blocking competing Web browser Firefox, could Apple draw Microsoft-like antitrust lawsuits?
Control
Thursday, Apple released its eagerly awaited iPhone software development kit. Putting an end to hopes of user choice, Apple has declared that the only way for users to install applications will be through its App Store via the iPhone or iTunes. If the company doesn't like an application, it will be removed from the store, with no other way for a user to install it.
In a Q and A session with reporters, CEO Steve Jobs was asked if voice applications such as Skype will be permitted. Jobs replied by saying that VoIP (voice over Internet Protocol) will be allowed when the iPhone is using a WiFi connection, but forbidden over AT&T's cellular data network. How this will be enforced remains unclear. At the very least, Apple can blacklist from iTunes any application that doesn't play nice over AT&T's network.
In addition to the anti-VoIP rules, Apple seems to have also set its sights on the Firefox Web browser. Deep in the legal agreement for developers, Apple states:
"No interpreted code may be downloaded and used in an Application except for code that is interpreted and run by Apple's Published APIs and builtin interpreter(s)...An Application may not itself install or launch other executable code by any means, including without limitation through the use of a plug-in architecture, calling other frameworks, other APIs or otherwise."
As a member of the Firefox development team has already noted, this is a big deal.
Both the Firefox and Opera Web browsers, which compete with Apple's pre-installed Safari browser, are forbidden as they support hundreds of user-created add-ons. Furthermore, the Web browsers support Javascript, which is a key component of most Web 2.0 content. Javascript is an interpreted programming language, and thus forbidden as per Apple's terms of service.
Also banned from the iPhone: programming languages Ruby, Python, Perl, and Java. Quake, the video game engine ported to practically every platform (including Google's Android), as well as Microsoft's Word, Excel, and .NET are also persona non grata.
Sun announced last week that it is readying a version of Java for the iPhone. Once the restrictive iPhone license was pointed out, Eric Klein, the vice president of Java marketing at Sun, backpedaled somewhat on his own personal blog, writing that "I'll leave those (legal) questions to another forum, but we really do want to deliver a JVM if at all possible." This alone should make for an interesting fight, as Sun is no stranger to filing antitrust complaints.
Net neutrality complaints
Apple's blocking of Skype and other voice applications raises the same Net neutrality issues as Comcast's blocking of BitTorrent. Critics have argued that Comcast does this because the P2P video apps compete with the cable giant's own video programming.
Apple is now engaging in a similar practice, blocking any VoIP application that competes with the voice services offered by AT&T--the company with which Apple signed an exclusive five-year contract.
The company will be unable to borrow Comcast's line, and claim that the restriction is "reasonable network management." After all, watching a couple YouTube videos eats up far more data than a VoIP call.
This is not the first time that a company has attempted to block VoIP traffic to protect its own business model. Madison River Communications, a North Carolina ISP was fined and forced to change its behavior by the FCC when it started blocking VoIP providers like Vonage in 2005.
Paging Congressman Markey
Apple's sexy iPhone has attracted the attention of those in power before. Congressman Ed Markey (D-Mass.) held up an iPhone during a congressional hearing last year, before he sharply criticized the practice of locking such devices to a specific carrier's network.
Just a couple weeks ago, Markey introduced the Wireless Consumer Protection and Community Broadband Empowerment Act of 2008, which would require wireless carriers to sell unlocked phones without contracts for reasonable prices. In introducing the bill, Markey clearly had the iPhone in mind.
Markey's other well-publicized cause is Net neutrality. The congressman spoke at the Comcast/BitTorrent FCC hearing just a couple weeks ago. He has previously held hearings on the subject, and introduced legislation in February to stop ISP data favoritism.
With Apple's recent adoption of Comcast-style filtering, Markey can combine two of his passions: wireless phones rules and Net neutrality regulation.
Antitrust
Microsoft's bundling of Internet Explorer back in the late '90s led to major antitrust lawsuits brought by Department of Justice and 20 different states. While consumers were free to install Netscape and other competing browsers, it was the preferential treatment of its own browser that lead to legal problems for Microsoft.
Apple is now engaged in an even more egregious practice. It bundles the Safari browser with its iPhone, it makes it impossible for consumers to remove the browser, and the company now forbids competing companies from making their browsers available to the millions of iPhone users. Firefox has over 40 percent market share in some European countries, but it forbidden from making a version for the iPhone platform.
If Apple doesn't rapidly backtrack on its anti-Firefox and VoIP rules, I predict that it will soon be looking at investigations from multiple government agencies, both here in the U.S. and EU. The FCC and Congress will most likely look into the Net neutrality complaints, while the European antitrust regulators will probably take a keen interest in the Firefox issues. This would, of course, not be the first time that the Europeans have investigated Apple's iTunes store for dirty tricks.
Disclosure: I worked for Apple as a summer intern in 2005. While I love Markey's positions on Net Neutrality, he did publicly call for my arrest back in 2006. He changed his mind two days later.
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