Re: CRTC 2011-344[1]: Fact-finding exercise on the over-the-top programming services in the Canadian broadcasting system

Comments from Russell McOrmond, Internet/FLOSS consultant[2]

  1. I do not represent a broadcaster or BDU, but a consumer of content.  I am a practitioner in the Internet marketplace as a system administrator and software author.  At one time I offered commercial hosting services as well as being co-owner of a server co-location company.  It is from these two perspectives that I am submitting these comments.
  2. When it comes to Internet services, traditional phone companies and BDU’s are in a conflict of interest.  Each want to extend their pre-Internet business models to an entirely different marketplace, imposing unnecessary transactional fees or service bundling.  As both a consumer and as a commercial Internet consultant, I find that the teleco/BDU’s are nearly always opponents in debates to what I consider to be best for Canada, whether it be Network Neutrality, UBB, or competing content distribution platforms.
  3. Calling services that are not tied to the physical platform “over the top” seems outdated.  It appears to presume that phone and cable services are basic services, and that data services are built on top of that.  It further suggests that services that then use the raw data services are a layer above phone and cable services.  With the move to digital, and with it convergence, we need to understand the data service as being the raw layer and all services built on top of that.  Any digital service, whether IPTV, Rogers Digital TV and similar services from other BDU’s, digital telephone services (such as offered by Rogers), or NetFlix are all equally built “over the top” of raw digital services.  While there is merit to thinking of the legacy analog services as tied to the physical platform, the same is not true of the digital services.
  4. Similar to how an active Conservative Party supporter would find it offensive to be told that the only way to participate in politics is to be a member of and pay money to the Liberal or NDP parties, I find it offensive to be told that the only way to legally access the media content I want (domestic or foreign) is to pay an opposition teleco/BDU.
  5. While I recognize the government granted right-of-way duopoly on the wired last mile can’t be solved through consumer choice[3], and there will always be some part of my service that is government mandated to be paid to a teleco/BDU, I want to minimize this service.  It isn’t only that the BDUs aren’t offering a service I want (I have no interest in their bundles), but also that I consider these companies both to be political opponents and commercial competitors.
  6. I am a subscriber to Netflix, and watch other programming via the websites of some broadcasters.   This is not yet a full replacement of the programming available through a BDU as not all programs are available legally online to Canadians due to regional and other restrictions.
  7. Before I became a subscriber to NetFlix, I had already reduced my BDU subscription as part of a political protest against Rogers[4].

Canadian Content and other related regulation

  1. While services like Netflix make use of wired and wireless means of communication to their customers, they are not broadcasting but retail.  From a content point of view, they should be regulated in the same way that other retailers are that may offer content for sale such as Walmat, Loblaws or Canadian Tire.
  2. Content regulations being based on the medium of distribution, whether physical media (CD, DVDs, etc) or telecommunications (wired or wireless), is outdated.  We must move to rules which are medium independent.
  3. CANCON rules exist with the recognition that communications intermediaries had editorial control, and might abuse that control in ways that disable Canadians from telling Canadian stories to each other.   We created rules that required mandatory minimums, point systems for determining just how “Canadian” the content was, as well as cross-subsidization arrangements to enable additional funding for Canadian content.
  4. Where potential harm from intermediary editorial control exists, such as in broadcast situations or scenarios where spectrum (or shelf space) is limited, the CANCON set of regulations should apply.   Where the audience is primarily in control, such as an online retail content service with an adequately large catalog of Canadian content, then such regulations should not apply.
  5. While it is true that services such as Netflix need to license content largely from the same suppliers as broadcasters might, this does not make them similar for the purpose of regulation.  This is true when they are purchasing online distribution rights for content that was primarily paid for by a traditional broadcaster, or when they finance their own original programming which sees its first runs on these competitive service.

Need for regulation to mandate interoperability

  1. I am not an advocate for an entirely “hands off” approach to competitive digital content delivery services. The CRTC and Industry Canada jointly has a roll in setting and enforcing interoperable communications standards.
  2. When I purchase an NTSC or ATSC television or other tuner,  I don’t have to worry about whether a BDU or over the air broadcaster has “authorized” that specific brand or model to connect to the service.
  3. This interoperability has not been carried over to digital services, where encryption is being abused by content distributors to deny paying customers access to content if they don’t also purchase an “authorized” brand and model of access technology.  This appears to be a textbook example of Competition Act section 77 tied selling.
  4. While I already owned a PVR as well as multiple mobile and desktop computers capable of displaying digital content, I needed to purchase additional equipment to access NetFlix.  Of the options “authorized” by Netflix, I found the Boxee Box from D-Link[5] to be the least offensive.  Most of the other “authorized” brands/models were from companies that were also political opponents or competitors from the Business Software Alliance or Entertainment Software Alliance such as Microsoft, Apple and Sony.  I have never been a user in my home or business of operating systems from Microsoft or Apple.
  5. I recognize this is not a simple topic, and there is considerable misinformation about the impact of encryption on so-called “signal theft” and copyright infringement.  I have been presenting this issue to policy makers for over a decade[6].  I wanted to ensure the issue was included in this specific fact finding consultation such that the CRTC is aware of this growing problem.

[1]Call for comments documented at http://www.crtc.gc.ca/eng/archive/2011/2011-344.htm This submission is published at http://TekLaw.ca/5351

[2]Full contact and other information at http://flora.ca/#contact 

[3]I offered a longer intervention in front of the CRTC on December 9, 2009, on this topic.  The suggestion was to separate distribution from any type of content as is the case for Energy in Ontario. http://digital-copyright.ca/node/5096 

[4]I transferred $100 that I would have paid to Rogers, and donated it to OpenMedia.ca  http://www.digital-copyright.ca/node/5286 

[5]http://www.dlink.com/boxee/ is a semi-closed hardware/software bundled platform.  The Boxee software was origionally a form of the Free/Libre and Open Source Software (FLOSS) XBMC media center software http://xbmc.org/ .  While the firmware of the Boxee Box is not open for owner modification and control, and the NetFlix app isn’t available on owner controlled platforms running Boxee, this option is more open and competitive than the other NetFlix “authorized” alternatives.

[6]This included an intervention in front of the Legislative Committee on Bill C-32, an act to amend the Copyright Act, on March 8, 2011.  http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=5024520&Language=E&Mode=1&Parl=40&Ses=3#Int-3788397 .  See also http://flora.ca/own which includes additional notes on this presentation.