The Clicker: Was Grokster really the important Supreme Court decision?
posted July 7th 2005 7:26PM
The key to all good magic, as it has been explained to me, is misdirection. The magician must engage in some large,
eye-catching gesture that, when all is said and done, is rather meaningless. Meanwhile, under the cover of the
aforementioned grandeur, the real work is performed.
For instance: in the early nineties, David Copperfield would, with pomp and glory, make large jets, the Grand Canyon,
even the Statue of Liberty disappear into thin air. These, of course, were just the WOW-type distractions he needed to
accomplish his real goal, attracting supermodel Claudia Schiffer.
As it turns out – Justice Rehnquist and the rest of his Supreme Court posse are also fans of the ancient art of
illusion. When the Supreme Court delivered the recent raft of decisions it deftly used the attention-grabbing, yet
rather meaningless, Grokster case to grab the
attention of the public. Meanwhile, a second, arguably more important, ruling has quietly solidified Comcast et. al.’s
legal classification as an “information service” and not as a “telecommunication” service. In doing so, the Supreme
Court has set the stage for cable giants such as Comcast to, with impunity, disallow such competitive services as
Vonage,
Skype, and even perhaps
Akimbo,
MovieLink, and a host of
IPTV services.
A small, Santa Monica-based Internet company, Brand X Internet LLC, brought suit against the cable industry claiming
that, under common carrier regulations, Brand X had a right to deliver its Internet services over the cable giants’
broadband networks. Brand X argued that, just like DSL, cable lines were telecommunication instruments. As such, just
like the Bells are forced to open DSL lines to third-party providers, so too should third-party companies be afforded
access to the cable infrastructure.
Brand X’s argument was not without basis: In 2000, the Ninth Circuit Court of Appeals held in AT&T v. the City of
Portland that cable modem services were a mixture of both information services and telecommunication services and
should be subject to the regulations of both bodies. However, in response to that ruling, the FCC later (2002) issued
an opposing statement that cable modem services were information services and that they were not subject to
telecommunications regulations. The Brand X case became the Supreme Court’s chance to set the record straight.
In the 6-3 decision delivered by Clarence Thomas, the court re-affirmed the FCC’s classification of cable modem
services as information services.
The ruling has caused a lot of speculation about whether the cable industry will use its newly-reaffirmed status to
make life difficult for its competitors in the VoIP industry. Under telecommunication regulations, providers must open
their networks on non-discriminatory terms. Information services are not bound by the same regulations. Cable companies
could engage in port-blocking and other countermeasures used to stop VoIP services from traversing their
networks.
What’s even less clear is how the decision muddies the waters with respect to IPTV services. While not yet as
developed as VoIP, the emerging IPTV market has just as much to lose. IPTV is also closer to the cable companies bread
and butter services. It’s unclear that, without non-discriminatory terms, cable companies would have the proper
incentive to allow third-party video services to traverse their networks. Value-add services such as VOD have been at
the backbone of nearly all cable battles, and cable companies have fought hard to maintain their monopoly there. It’s
unlikely that they wouldn’t at least consider cutting their competition off at the knees.
The matter is further complicated by the dearth of information-service regulations. The FCC has been in a holding
pattern with regards to broadband regulations.
The Supreme Court’s decision, according to FCC Chairman Kevin Martin, allows for that to change. Martin said in a
statement: “This decision provides much-needed regulatory clarity and a framework for broadband that can be applied to
all providers… We can now move forward quickly to finalize regulations that will spur the development of broadband
services for all Americans.”
But, until regulations do change, the Brand X decision leaves the Internet in an unusually precarious position. With
a) many regions of the country operating under a broadband-access monopoly and b) with access to broadband services
becoming more and more important in both communication and entertainment services, the courts just bestowed upon the
cable companies a disturbing amount of power.
It’s time for FCC to take some of that power back from the cable companies. It’s time for Martin to enact neutrality
regulations. It’s one thing to allow cable companies sole use of their own networks. It’s an entirely different thing
to allow them the power to block the competitive services that travel over those networks, and while we’re in limbo
that’s what they’ve done.
Amen.
Huh?
This article claims that Grokster wasn't important but never explains why. The author seems to think there is only "1" important United Stats Supreme Court (USSC) decision (i.e., "Was Grokster really --->the<--- important Supreme Court decision?"). Also, using magic as an analogy doesn't work either because Grokster didn't go to trial because the USSC judges wanted to cover up their handywork in Comcast.
Grokster is just as important as Comcast, and they are both just as important as any other USSC case.
I think the real illusion was created by Stephen Speicher when he wrote this article... I thought I was going to read something about Grokster, but end up reading about Comcast. Cheap .99$ trick IMHO.
i beleive his point was that the main media focus was on grokster, hence making it seem to be the important point. how much coverage did you see on the comcast decision that you didnt expressly look for? I saw very little, but i saw many headlines aboot grokster. Also, the grokster decision was much more focused on that particular technology, since they did not link it to the sony betamax decision. the comcast decision affects a much broader industry
Couple of points that the author failed to address. First of all, what about the assertion that the Cable companies would have little incentive to upgrade and improve their networks if they are not going to be assured a benefit from that improvement?
As I understand it, a primary thing about "telecommunications" systems is that the primary network they use (the telephone grid) was constructed under the auspices of a government supported monopoly (ma Bell) for the purposes of telecommunications. As a result, telecommunication network owners are not entitled to the sole benefit of those network--since it was public money, essentially, that paid for the networks.
Cable networks were constructed without the benefits the same national monopoly for the same purpose--local monopolies were sometimes granted in order to make sure the networks expanded TV service to the "less profitable" economic areas. In other words, the monopoly was already “paid for” by the cost to the private cable company of exanding service in less profitable areas.
In short, while it may be unpalatable to many, the fact of the matter is that the cable companies have little incentive to expand and modernize their networks if they can't expect to benefit from their expenditures via value-added services. In fact, this was the main argument by the FCC, and the author does little to refute the point. We don’t expect that the builder of a hotel should let other companies offer cheaper mini-bar prices in their rooms, so how is it materially different?
I don't see the problem here, a private company spent millions (billions?) of dollars laying out a cable infrastructure and other companies want to access it for free?? How is that fair?
Telecommunications is an expensive business, don't get into it if you can't afford to set up the infrastructure.
#5 is right.
The Kelo case was the most important case this year.
http://en.wikipedia.org/wiki/Kelo_v._New_London
"how much coverage did you see on the comcast decision that you didnt expressly look for?"
You should listen to NPR, they had good coverage of that decision.
Although # 5 has a good point as far as capitalism is concerned, lets not forget that the FCC has the responsibility to consumers to ensure that a monopoly is not created. Which is what Comcast is well on its way to becoming. (Reference AT&T early 1980's)
If competition is not allowed to compete then Comcast can continue to charge us unfair rates for services that could have been provided by a competitor for a cheaper rate.
The FCC is not in charge of making sure monopolies are not created. The FCC is in charge of regulating the shared public airwaves... and that's pretty much it. Everyone assumes they have more power, and they try to use it sometimes (Broadcast Flag anyone?) but in actuality, they just don't have much power. As it should be.
"It’s unclear that, without non-discriminatory terms, cable companies would have the proper incentive to allow third-party video services to traverse their networks."
How does a commercial that says "VoIP? Not with cable, but you can with us! IPTV? Not with cable, but you can with us!" sound to cable company execs?
I think this will probably turn out to be a good decision. Yes, ISPs are getting locked out of the cable market, but ISPs stopped being relevant a long time ago. People need a data link to the Internet, a DNS server, and they're good to go. They don't need the extra crap places like AOL foist on people. That was great for the transitionary period where people just didn't get what they were supposed to do when they were "online" but we're beyond that. People know you hit google and search and go from there.
If the cable companies decide to go lockdown-happy, some other company will come along and make the investment (large though it may be) to lay new lies without limitations. The cable companies will then cry foul and try to get protection from the FCC claiming to be common carriers. We'll see how that shakes out ;) Oh, and why am I so sure that such a company will arise? Because if everybody else is too stupid or shortsighted to see the opportunity, I'll do it.
My cable connection is already blocking some of the most important ports to me. Nowhere in the papers I signed or the info they hand out did they say they would be blocking these ports. Now I'm stuck in a contract for a year with a service that's blocking ports I need in order to do my business. I'm going back to DSL at the end of the year.
Wouldn't VOIP turn cable lines into telecommunication lines?
While the cable companies did build their own networks, they're selling access to the internet, which is a public network. For consummers the playing field needs to be level. Both Cable B-Band and DSL B-Band are identical to consumers and the same rules need to apply.
Makes you wonder who's getting paid off...
It seems everyone is greedy.
Wow this is going to be another problem in the tech world. All the law suits are getting old.
All the companies are going to be worried about whos got what, and who can use whatever service on their network. The consumer is the one who will pay the price.
I'm thinking if the cable company provides me w/ VoIP, IPTV, and my cable internet, aren't I going to save lots of cash that way? I'll tell yea one thing, if the outages are as frequent as they are, none of these systems are gonna be popular in my book.