FCC to Propose Net Neutrality Rules

New FCC Chairman Julius Genachowski threw down the network neutrality gauntlet in a speech today [PDF] [HTML] at the Brookings Institution, announcing his intention to start a formal process that would result in adoption of binding regulations. [There is good news and blog coverage from AP, Wired, and Washington Post.] His proposal would turn [...]

Bell: Why Don’t Content Owners Sue Our Subscribers?

The government has just posted the audio from the Toronto copyright roundtable held in late August. The discussion started off with a bang with comments from Bell Canada. Bell had a lot of good things to say including support for the positions of Business Coalition for Balanced Copyright. The discussion turned quickly to the role of ISPs in addressing allegations of infringement on their networks. Bell receives upwards of 15,000 notices every month under the notice-and-notice system (primarily from the movie, gaming, and software industry), a volume that raises concerns about the associated costs. Bell also provided a strong rejection of a three-strikes and you're out system describing those proposals as "outrageous."

The company then moved into the area of potential lawsuits with some surprising remarks:

"A role we don’t hear much about though is the role of content owners to defend in Canada their own statutory rights. Bell and a few other Canadian ISPs several years ago spent time and resources in the courts helping to develop the legal blueprint that content owners would need if and when they decided to legally pursue their rights in a way that respects the privacy and judicial rights of Canadians. We’re still waiting. No one is crazy about suing consumers because it is not popular. But what sort of message does it send to Canadians about the legality of the activity when an entire industry says we won’t be suing Canadians for sharing our content without our permission."

While one can understand Bell's frustration at the demands to "do more" on the copyright file, pushing the industry to file lawsuits against its own customers surely is not the right approach. The recording industry has stated that it does not want to pursue the lawsuit strategy, yet Canada's largest ISP thinks that not suing sends the wrong message to Canadians? Years of experience shows that neither locks nor lawsuits provide any real benefit to the industry or the artists and the last thing ISPs should be promoting is lawsuits againt their own customers.

In case you needed another reason, the comments serve as a reminder why Canadians must speak for themselves during this copyright consultation. There are just five days left and submitting to the process takes nothing more than an email – make sure yours is filed today.

Bell and Rogers Square Off Over Internet Speed Claims

As two of Canada's biggest Internet service providers, Bell Canada and Rogers Communications are fierce rivals that frequently battle for the same customers. That marketplace fight rarely spills into the courtroom, yet my weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) notes that last month a Rogers advertising campaign prompted Bell to file a $50 million dollar lawsuit. The result was an end to the campaign and evidence both companies over-promise the speed of their Internet services.

The case began when Rogers launched a direct mail and Internet ad campaign called "Check Your Speed." The campaign warned users the Internet services "you are paying for may not be what you're getting" and encouraged them to test their connection with an independent third party. The campaign unsurprisingly offered Rogers services as an alternative, promising a "reliable speed every time you connect." Just days after the launch, Bell filed suit, arguing in court documents violations of the Trade-Mark Act, Competition Act, along with various torts. The company sought $50 million in general damages, $1 million in punitive damages, and an injunction blocking Rogers from continuing with its campaign.

Two days later, Rogers dropped the third party testing feature. Rather than using a fully independent third party service, Rogers had used a server located in Seattle, Washington to run its tests. The court found that the distance between users in Ontario and the speed test server in Washington might help account for slower speeds. Even more telling was the evidence that placed the spotlight on a Canadian industry practice of advertising the maximum or "up to" speeds for customers, rather than minimum or actual speeds that customers typically obtain. The Rogers campaign was effectively premised on this discrepancy since it encouraged users to check their speeds where they would undoubtedly learn their typical speeds were lower than those promised by their ISP.

The same holds true for Rogers, however. Under cross-examination, a Rogers witness was asked about the Rogers service: "if he [the customer] runs the test, and it tells him that his Internet connection speed is less than 10 megabits per second, is he still getting the Internet speed that he's paying for? "

The response? "The Internet speed he's paying for is "up to," as is industry practice. So I believe the answer is yes. We sell an "up to" service, as is industry practice."

It is this "industry practice" that deserves far closer scrutiny from Canada's telecommunications and competition regulators. While the Canadian Radio-television and Telecommunications Commission has done little to address the issue, its counterparts in the United Kingdom and Australia have taken action.

Late last month, Ofcom, the British telecommunications regulator, released the results of a study that found more than 50 per cent of broadband users in that country are receiving less than half the speed promised by their providers. The Australian Competition and Consumer Commission addressed this issue several years ago, with guidelines for ISPs designed to counter misleading "up to" speed claims.

The Canadian practices are particularly deceiving since ISPs have also been slow to disclose their traffic management practices, which may often result in deliberate slowdowns for certain applications. Rogers recently admitted it charges tiered pricing for faster upload speeds but that all tiers are throttled to the same speed when using peer-to-peer applications.

As Canada's ISPs battle in court over which company is more deceptive, it is time for Canadian regulators to step in by conducting their own tests on promised speeds and establish clear requirements that bring truth back to ISP advertising.

CRTC Releases Communications Monitoring Report

The CRTC has released the second annual Communications Monitoring Report 2009. The nearly-300 page report is filled with data and charts that will generate considerable study and commentary. Some of the points that jumped out at me:

Do-Not-Call: As of May 19th, there were over 6.8 million registrations, 145,000 complaints, and over 700 investigations.
Internet Access: 95% of Canadian households have access to fixed broadband. 91% to mobile broadband. In 2008, virtually all Canadian households in urban centres could have access to broadband services, versus 78% of households that were in rural areas.
TV Viewership: TV viewing biggest drop in 12 – 17 age demographic down 5.9%. Over 18 down 1.4%.
Internet use: 95% of 18-34 anglophones use the Internet; 91% of 35-49, 70% of over 50. Numbers slightly lower for francophones.
Accessing Music: "downloading music and streaming radio over the Internet have shown a steady decline in popularity among Anglophones, and appear to have stagnated among Francophones."
ISPs: Top 5 ISPs (Bell, Telus, Rogers, Videotron, Shaw) capture 76% of Internet access revenues. 69% of households subscribe to broadband.
Price comparison w/US, UK, France, Australia. Good pricing for low wireless & broadband usage, avg for mid-to-high usage. Canada lowest number of wireless subscribers/100 inhabitants. High broadband, but low mobile broadband.

Did the Tenenbaum Judge Botch It?

As you know, Joel Tenenbaum lost against the RIAA and is now on the hook for $675,000, pending a hearing on the constitutionality of those damages. Several lawyers I’ve talked with have suggested that Judge Nancy Gertner, who presided over the trial, committed reversible error by issuing a directed verdict on the question of infringement. [...]

Tenenbaum Liable for Copyright Infringement

Update [31 July 6:50PM]: $22,500 per work; $675,000 total. More than I expected. Props to Wendy Seltzer and Mark Lemley for the update. Link is to Ben Sheffner’s write-up in Ars Technica…
The judge in the copyright infringement lawsuit against Joel Tenenbaum has issued a directed verdict on the issue of infringement liability. The only remaining [...]

CRTC Issues Questions for Federal Ct on ISPs and Broadcast Act

The CRTC has issued the question to the Federal Court of Appeal regarding the applicability of the Broadcasting Act to ISPs.

Ofcom Criticizes UK ISPs On Misleading Advertising

Ofcom, the UK telecom regulator, has criticized UK ISPs for advertising misleading "up-to" speeds. The same issue was raised repeatedly at the recent CRTC network management hearings.

The ISP Copyright Consultation Questions

Mediacaster posts the questions pertaining to ISPs that have been posed as part of the forthcoming copyright consultation. These include notice-and-takedown, ISP liability, and a making available right. The full consultation launches on Monday.

Mickey Kaus Discovers Section 230

Yep, it’s all Section 230, all the time here at Info/Law! Makes for a nice change from filtering. Mickey Kaus writes about the threat by Sarah Palin’s attorney to sue anyone defaming her, and also those who republish such defamation. He’s astonished to learn that Section 230 could shield him and other bloggers. (I’d presume [...]

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