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CRTC Indecision on Net Neurtality ("Throttling")

By Howard Knopf, Esq.

With respect, I cannot share the enthusiasm of Michael Geist, etc. for today's CRTC decision on Net Neutrality ("Throttling").

True, the CRTC agreed with the overall principles of net neutrality propounded by its exponents, which allows for network management subject to rational, justifiable and not overly restrictive network management by the ISPs. But the decision basically leaves the effective responsibility of enforcement of these principles in the hands of consumers via a complaint mechanism, ensuring years more of litigation, delay and full employment for the lawyers involved. One can be reasonably confident that individual complaints by individual users will not easily or quickly move the huge edifice of the CRTC and the major ISPs.

In the short term, the only thing that will change for Canadian consumers will be they will learn with more transparency more details of why they have some of the worst internet service in the world at some of the highest prices. More transparency will not promote more competition in the market because there is no real competition in an essentially duopolistic market with now virtually insurmountable barriers to new entry.

The CRTC once again accepted at apparent face value that congestion was a fact. This should have required extensive review of the extensive evidence, much of which was cloaked with confidentiality. This should have been a key and reasoned conclusion. Once again, network congestion has been regarded as a premise.

Moreover, once again, the fact that most Canadian consumers are faced in reality with a choice between two duopolists was glossed over. The third party independent ISPs who must depend on one of the duopolist's backbones cannot compete on service in any meaningful way.

The decision glosses over the P2P issue, which is the elephant in the room. Leaving aside the inconvenient question of whether downloading of music is legal in Canada by reason of the levy scheme, and even conceding that the unauthorized downloading of entire copyright protected movies would normally be illegal, there still remains the fact that P2P technology has fantastic innovative potential for the authorized distribution of software, movies, music and other ?big? files. In the language of a landmark US case, it has ?substantial non-infringing uses.? The CBC has, to its credit, tried to use it but was thwarted by throttling. This decision will leave P2P under a serious cloud that will hinder innovation. This should not be the case. The question of unauthorized downloading and file sharing is a complex and important one, but it should not be solved or even dealt with at the CRTC.

So - the CRTC perhaps outlined the right principles today. But it did little to make them a reality. "Placing the onus squarely on consumers" as Michael puts it simply won't work. Given the likely lawyering involved, complaints could take years to resolve. And we're talking about the in internet here, which evolves, even when throttled, much faster than the CRTC can move. There is an old maxim in law that ?There is no right without a remedy. Ubi jus ibi remedium.?

Full post as published by Excess Copyright on October 21, 2009 (boomark / email).