WordsByNowak

A week ago I wrote about some figures put together by researchers using M-Labs, an online measurement tool started by Google, that showed Rogers to be the world’s worst throttler. In terms of percentage of internet connections slowed and sample test sizes, the Canadian cable provider proved to be the worst up until at least the first quarter of 2010. The researchers are working on releasing more up-to-date figures, but Rogers’ position is unlikely to improve much if at all, given the ongoing problems it has with throttling online video games.

That post attracted a considerable amount of attention. Not only was it the most read post I’ve had in the two-and-a-half years that I’ve been writing this blog, it was also picked up and made the top story on Huffington Post Canada over the weekend. It was also pointed to by numerous other blogs and podcasts.

My old colleagues at the CBC picked up the story as well and spoke with Milton Mueller, the Syracuse University professor who was the lead researcher behind the M-Labs findings. In no uncertain terms, Mueller - who appears to be quite tuned in to CRTC regulations - said Rogers is violating Canada’s net neutrality rules.

“Under the regulations that the CRTC promulgated for reasonable internet traffic management practices, I think 100 per cent, 24/7 throttling is not conformant,” he told the CBC. “So I think consumers would have a basis to complain and the CRTC would have a basis to act.”

A spokesperson for the company got back to me and countered, saying Rogers is in full compliance with CRTC regulations and pointed to a posted notification of its traffic management practices.

“While we don’t know exactly where this data comes from or the methodology used for this report, Rogers only manages upload traffic for P2P file sharing above 80 [kilobits per second],” the spokesperson said in an email. “From what we can tell, this report is measuring BitTorrent traffic only.”

I did my own tests using Glasnost, the same tool cited in Mueller’s findings, and it confirmed what Rogers has been saying all along. BitTorrent downloads were swimming along at between 8 and 11 megabits per second, but uploads were being slowed to around 80 kbps. (I also tried other kinds of traffic such as HTTP and Flash video, but got error messages saying my link couldn’t be tested - if anyone has any theories as to why, I’d love to hear them.)

Does this matter? It does for a few reasons. Firstly, I’m no technical wizard, but what I do know about BitTorrent is that if uploads are throttled, it’s just as good as throttling downloads too because peers often connect to the fastest uploaders first. This may not show up in Glasnost tests but can manifest itself as slow BitTorrent downloads in practice. Perhaps this is why Canadian ISPs are some of the stingiest around in providing decent upload speeds in the first place (Canada ranks 63rd in the world, according to Ookla, behind such internet heavyweights as Laos, Kenya and Belarus).

Secondly, as the CRTC has indirectly noted, throttling BitTorrent is one thing but extending it to other internet applications, such as World of Warcraft, is another. BitTorrent is unfortunately the black sheep of the internet because it is used by many to share movies and music, which is why regulators and other authorities tend to quietly tolerate ISPs beating up on it. However, BitTorrent does have legitimate uses and it is operated by a perfectly legitimate business, so crippling it is a violation of net neutrality principles since all perfectly reasonable uses of the internet should have the same rights and capabilities as others on the network.

Extending that same throttling to other perfectly legitimate uses such as gaming, whether it’s on purpose or accidental, only compounds the violation.

Thirdly and perhaps most importantly is the fact that Mueller pointed to. Around-the-clock throttling surely goes beyond the CRTC’s net neutrality rules, which require ISPs to use such measures as little as possible.

A few years back, I had a decent conversation with some Rogers engineers about throttling. I’ve extended an invitation to see if they’d like to revisit the topic and am waiting to hear back. As for the CRTC, how it proceeds on the issue may be influenced by its upcoming decision on usage-based billing, which is due any time now.

According to a letter unearthed by University of Ottawa professor Michael Geist, Bell Canada - the company that made internet throttling a household word a few years back - is relenting in its quest to slow down so-called bandwidth hogs.

The letter, sent to smaller internet service providers that lease some of Bell’s network capabilities, says that new links coming online in November may not be subject to traffic management practices. These measures were introduced in March 2008 to:

…address congestion on the network due to the increased use of peer-to-peer file sharing applications during peak periods. While congestion still exists, the impact of peer-to-peer file sharing applications on congestion has reduced. Furthermore, as we continue to groom and build out our network, customers may be migrated to network facilities where Technical Internet Traffic Management Practices (ITMPs) will not be applied.

In plain English, some people who get their internet service from smaller providers such as Teksavvy or Acanac may soon find their peer-to-peer applications - such as BitTorrent, which many use to share music and movie files - working at full speed again.

The move is good news for customers of those companies, but it also raises several questions. Bell and a number of other big ISPs instituted throttling in the first place because they claimed that peer-to-peer traffic was causing congestion on their networks. The CRTC gave its approval to such measures, but told network owners they could use them only as a last resort. Critics, however, said throttling wasn’t about congestion at all, but rather about limiting usage of BitTorrent and the like, which competed with the big ISPs’ own television and video offerings.

Now, as Geist rightly points out, if Bell is admitting that “the impact of peer-to-peer file sharing applications on congestion has reduced” then it sure looks like Bell’s own retail internet operation is breaking CRTC rules. It also strongly suggests that every other ISP still throttling is offside as well.

Put another way, if the smaller ISPs - which are supposedly havens for the heavy-using peer-to-peer bandwidth hogs - aren’t being throttled, why is anyone? The answer is simple: The critics were right. And the longer big ISPs continue to throttle their own customers, the more right they’ll prove them to be.

The good news is that if this path is followed to its logical conclusion, Bell’s change of heart may well signal the end of throttling in Canada since ISPs don’t really have a leg to stand on anymore.

But there’s more to this. It’s a general rule that big phone incumbents, wherever they may be in the world, don’t ever make such benevolent moves without either being forced to, or without an ulterior motive. In this particular case, the driver is most likely another term that Bell helped enshrine in the popular vernacular: usage-based billing.

A quick recap: the you-know-what hit the fan earlier this year when Bell tried to foist a new billing plan onto the likes of Teksavvy et al, which would have made unlimited or large monthly usage plans prohibitively expensive. While the change would have only affected about 5% of internet users, Canadians - pissed off after years of rising bills and shrinking caps - freaked out en masse and effectively told big ISPs that they shall go no further. The government got involved and told the CRTC to re-examine its rubber stamping of Bell’s proposal.

Hearings were held this summer and the regulator is due to make a final decision soon, likely in the next few weeks. The timing of Bell’s throttling move, therefore, smells fishy.

Again, as Geist points out, the real threat to big ISPs is no longer BitTorrent, it’s Netflix and its ilk. While it was okay to combat a shady service with shady practices, throttling doesn’t work against Netflix and other legitimate streaming operations, so big ISPs have been looking to UBB as the cure for that ill.

In the face of anti-UBB furor, Bell has proposed something called Aggregated Volume Pricing to the CRTC. Without going into the boring details, it’s a preferable system to UBB for smaller ISPs because it would be cheaper and not as limiting. But still, it’s a lighter, more digestible form of usage-based billing. Call it Diet UBB.

Bell’s pulling of wholesale throttling may foreshadow what the CRTC’s decision on UBB is going to be. There have doubtlessly been discussions between the company and the regulator on the topic since the hearings this summer - a search of the lobbying registry turns up at least one meeting between Bell representatives and CRTC commissioner Leonard Katz in that time frame. (Curiously, the topic of discussion for that meeting is listed as “broadcasting,” even though Katz is the vice-chair of telecommunications).

It’s entirely possible that a quid pro quo agreement, where Bell loses on one less important front (throttling) but gains on another more important one (UBB), has been reached. In other words, it may be that the regulator asked Bell to shut down its throttling in exchange for approval of its AVP plan.

That may have a hint of conspiracy to it, but really it doesn’t. Can anyone imagine both throttling and UBB being struck down and eliminated? Come on, this is Canada. Everyone knows internet users don’t get their way here.

Of course, if such a suspicion proves correct and the CRTC does approve Bell’s modified UBB plan, all eyes will be on the government to see if it follows through on its promise to strike down usage-based billing. Mind you, they made the same threats over new text message charges a few years ago and we all know how that turned out.

Yesterday’s post about the Toronto International Film Festival caused quite a stir, with people either loving or hating my argument that the event isn’t for movie fans. In case you missed it, here’s the quick and dirty: TIFF requires people to pay inflated prices to wait in long lines to see movies in venues that often aren’t built to show them.

Like all such events, the festival is mainly about business. Whether it’s independent producers hoping to secure a distribution deal, those same distributors looking to build buzz for movies they’ve already secured or the city of Toronto aiming to make itself look cooler, the event is one big financial transaction. While TIFF can’t exist without movie-goers - the people who are subjected to all of the inconveniences above - they are plainly treated as an afterthought.

Some readers didn’t like that characterization and felt the need to justify why they attend TIFF. A few of the arguments, like how the long lineups provide fans with an opportunity to talk movies with their fellow attendees, made sense even though I wouldn’t consider them a worthy tradeoff for all the other issues. But, as they say, to each his own.

One particular excuse, however - that the fest is the only place to see certain rare movies - was a load of hooey.

It’s not the 1950s anymore. If a creator can’t secure a top-shelf distributor for his or her work, there are many options. Indeed, there has never been more choice. Film makers today can sell or give away their movies through a variety of outlets, including iTunes, Netflix (which is almost tailor made for films that nobody else seems to want), YouTube or their own websites. They can even have their films “pirated” through file-sharing, but more on that in a second.

Why would anyone want to do any of that? Obviously, putting a film out on the internet for cheap or for free isn’t going to result in the sort of riches that scoring the distribution services of an Alliance-Atlantis or 20th Century Fox might. But, as anyone involved with any film anywhere will attest to, the most important goal behind any movie is to get it seen by people. While film festivals are a good way to do that, they’re no longer the only way of doing so.

It’s the same for virtually every medium. It’s why singers - including the mighty Justin Bieber - put videos on YouTube and it’s why people write for the Huffington Post for free. Exposure is its own form of currency. While a creator may take a bath on a current work, the exposure can and often does translate to dollars on future efforts.

A few readers rankled at my suggestion of using torrents and other file-sharing methods to get hard-to-find movies, because doing so is “piracy” that steals money from the pockets of the creators. Evidently, Hollywood’s attempts at brainwashing people against file-sharing are working because there are many creators - myself included - who find nothing wrong with their work being traded about for free. Why? Again, because it results in exposure.

Documentary director Sam Bozzo discussed this last year. As he told TorrentFreak:

The only films that are hurt by torrent sharing are mediocre and bad films. In contrast, the good films of any genre only benefit from file-sharing. Due to this, I feel the current file-sharing trend is a catalyst for a true evolution in filmmaking.

Furthermore, Bozzo contacted the person who had uploaded his film Blue Gold and asked if she could help spread the word about it and solicit donations on his behalf.

I received many donations and emails of support from those who downloaded the film, but I furthermore believe that viewers spread the word of the film to their non-torrent-downloading friends and that DVD sales increased due to the leak. For me, the torrent leak was ultimately “free advertising”, and I am the only truly independent documentary filmmaker I know making his money back this year.

There are, of course, many who disagree with him, including the people behind the Oscar-winning Hurt Locker, who are now apparently bringing lawsuits against file-sharers to Canada. That’s their prerogative, as is the right to believe that all file-sharing is piracy, although I’m of the belief that it isn’t if the creator doesn’t think it is.

While there are some valid reasons for why people like going to TIFF despite all the hassles, its monopoly on good obscure movies isn’t realistically one of them anymore. To paraphrase Bozzo, good films will end up being seen and their creators will benefit one way or another, which means some TIFF aficionados will have to think of new justifications for subjecting themselves to its many inconveniences.

There’s a fun spectacle going on in Ottawa right now called the “Vertical Integration Hearings,” which is basically a pillow fight by the telecom industry in front of the CRTC over who owns what. It’s fun when you consider that the whole exercise is a complete waste of time other than being regulatory theatre at its finest for fans of that sort of thing.

In a nutshell, Canadian telecom is now lorded over by four relative giants: Bell, Rogers, Shaw and Quebecor. Each has telecom concerns, such as internet, wireless, television and phone businesses, as well as broadcast and print holdings. For those keeping score, Bell has CTV and the Globe and Mail, Rogers has CityTV and a host of magazines including Macleans, Shaw has Canwest (Global) and the National Post, while Quebecor has the Sun newspapers and TV and a bunch of French channels. Because these companies own both the content and the methods of distributing it, they are considered to be “vertically integrated” (as opposed to horizontally integrated, which is what you sometimes become with your significant other).

The point of the hearings is to answer the question: What’s to stop these companies from keeping their content from the other guys? If CTV (via TSN) has the rights to NHL programming, for example, what’s to stop Bell from offering hockey only to its own customers? And what if Rogers chose to do the same with MLB baseball or some other sport? In such a scenario, customers would have to get TV subscriptions from both Bell and Rogers if they wanted to get all of that programming. The same concerns also apply to the internet and wireless, where all content is migrating to.

Such a situation would of course be a nightmare, yet there have already been instances of it - in May, Bell announced it would stop carrying Sun TV because Quebecor was apparently charging too much for it. (Not that many would consider living without Sun TV a nightmare, but you get the drift.)

A number of commentators have argued that this is very bad and consumers will ultimately suffer for it, which means the CRTC must put rules into place to prevent it from happening.

I couldn’t disagree more. This is a classic case of the CRTC needing to stay the hell away because it’s related to several other issues the regulator has recently messed up or is currently in danger of messing up.

The answer to the question above, about what’s to keep companies from tying up exclusive content, is simple: competition, which comes in several forms. Firstly, as York University professor David Ellis so eloquently argued recently, the regulator needs to get its “grimy paws off my Netflix.” To summarize, the CRTC is currently considering whether it should regulate so-called over-the-top internet services, including Netflix, YouTube and the like, but it most certainly should not. If the CRTC foolishly decides otherwise and does try to get involved, it will enter its own regulatory form of the Vietnam or Afghanistan war. Its mission will be hopeless and it will be endless.

Over-the-top services need to be left alone and possibly even nurtured as competition to vertical integration. Of course, the CRTC has already nearly screwed that up when it gave its blessing to usage-based internet billing, which would have effectively castrated such services. Amazingly, and somewhat perversely, the market responded by working as it should. Since the regulator fouled up, the public got outraged, the government threatened action and the industry - Shaw and Telus so far - have responded by significantly increasing their internet usage limits. The others will have to follow suit or risk even more consumer anger.

If the vertically integrated companies want to shackle down content with exclusivity, they should be allowed to go ahead and try. If consumers have all the internet data they want to play with, they will quickly find their content through other legitimate over-the-top services and, failing that, they’ll turn to less-legitimate options such as BitTorrent.

This sort of “piracy” is the ultimate competition. File-sharing and other questionably legal methods of acquiring content are constantly improving, both in terms of ease of use and encryption. It’s been proven over and over that when content providers make it more difficult or expensive for consumers to acquire the stuff they want, they not only turn to alternative means, they feel justified in doing so. It’s also been proven that legal and technological responses can’t stop this sort of thing, they only make it improve even more.

So bring on the exclusive vertical integration. Anyone who tries it will soon learn the folly of their ways as consumers turn to other options, as well as the fact that many people who do go that route never come back.

You have to feel bad for Telus. Really, you do. After losing out to its wireless/internet/television provider rivals in the sweepstakes to snap up every major television broadcaster in the country, the company has gone crying to regulators to make sure the TV playing field stays even. It’s sort of like Telus wasn’t attractive enough to score a date to the prom, so now it’s asking for special rules to ensure it still gets to dance with someone.

Over the past few years, Canada’s big telecom companies have kept themselves busy “converging” by snapping up TV broadcasters. Quebecor, which owns French media assets and telecom provider Videotron, has been joined by Rogers (which bought Citytv), Bell (which bought CTV) and Shaw (which bought Global). Each company went out and got themselves a broadcaster for the purpose of having some special advantage in their telecom business. Telus, meanwhile, got shut out and is on the outside looking in.

The company has now asked the CRTC to enact rules that would prohibit these companies from discriminating against competitors with things like exclusive rights and preferential treatment. The ultimate fear is, of course, that such discrimination will lead to a situation where consumers have to switch TV providers just to watch their favourite show.

Telus is right, in a sense. Left to their own devices, it’s a situation the companies will inevitably devolve into.

But it’s hard to take the appeal seriously given the source. The run-up to the 2008 wireless spectrum auction, where the big debate was whether new companies should get a regulatory hand-out in the form of reserved airwaves, comes to mind. Telus naturally opposed such a move and in a letter to the Ottawa Citizen headlined “Government should let market decide spectrum auction” said:

We strongly believe that the competitive playing field should be free from government intervention so that companies can compete fairly for customers. Over the span of a few years, Telus evolved from a regional provider of wireless services in Alberta and B.C. to a leading national carrier. We accomplished this not by seeking regulatory benefits, but by investing more than $7 billion in a national wireless network that delivers advanced wireless services like mobile TV and satellite radio across the country.

Hmm. It seems Telus could have avoided its current TV predicament by following market forces and buying its own broadcaster. Better yet, if the company is such a staunch believer in the market, why doesn’t it start its own broadcaster? Why go crying to the regulator?

While the company does have a point, that this sort of vertical integration is theoretically dangerous, in reality it doesn’t really matter because the future of television doesn’t lie with broadcasters anyway. It’s all about Netflix and BitTorrent.

On one front, Netflix and services like it - some of which already exist and some of which have yet to arise - are quickly becoming competitors for the rights to air TV shows and movies. Content producers are increasingly going to have to choose between selling rights to services such as Netflix and traditional broadcasters. On another front, the more that vertically integrated companies try to lock down content through exclusive and discriminatory treatment, the more they will fuel the growth of illegitimate sources.

This can’t be discounted - most people under 30 are quite comfortable, morally and technologically, in using BitTorrent to acquire their content. When it comes to how people want to get their TV shows and movies, it’s perhaps best to paraphrase the Borg from Star Trek: The Next Generation: broadcasters are irrelevant, laws are irrelevant, regulations are irrelevant. Telus’s crying to the regulator, while rich, is also irrelevant.