After Hours

Senate bill protects your right to binge-watch Netflix and kitten videos

Bill aims to protect cord-cutters and those watching online video from suffering bandwidth limitations imposed by carriers. But the bill has some other elements that may ultimately cause it to fail.
Written by David Gewirtz, Senior Contributing Editor on

My wife and I are avid Netflix consumers. We both have DVD accounts, but the real action is the online video service. We like to watch entire series from end-to-end. Over the course of many months, we watched all the Star Trek series, for example. It's wonderful.

Right now, we're deeply immersed in what my wife calls "The Nucky Show," a program on HBO Go. It's really Boardwalk Empire, a brilliant HBO series about corruption in Atlantic City back in the 1920s. As an old kid from Jersey, I can appreciate many of the regional touchstones the show presents. It's brilliant TV.

The thing is, we're not watching this stuff through our cable TV service, we're watching it through our Internet feed, which also happens to be via cable.

And we're not alone. As Steven J. Vaughn-Nichols reported yesterday, the Internet belongs to YouTube and Netflix. Netflix alone consumes 31.62 percent of all downstream traffic in the United States during peak hours. YouTube follows behind, dominating 18.69 percent.

Don't even get me started about YouTube.

The other day, I got sucked into a whole hour watching thousands of dominos drop in some wildly amazing demonstrations. One single kitten or puppy gateway video and I can be down for the count for hours, until my wife snaps me out of the "awww, puppies!" stupor that can set in.

I admit it. I know my weaknesses. I've learned (mostly) to avoid the evil, wicked cute and have managed to get my life back. It's a day-by-day thing, but I haven't watched a kitten video in over a month. But there were those dominos.

As Steven's stats show, I am not alone in my fascination with old 90s TV series and tiny little furballs. This is a problem that extends to the highest levels, all the way up to the Rockefellers.

You may know the Rockefellers as old, old oil, as huge stakeholders in America shaky, bailed-out banking system, or even as the namesakes for Christmas skating joy in New York City.

But there's one Rockefeller who may well be on the side of all of us online viewers: Senator John D. Rockefeller IV (who goes by "Jay" rather than summon up memories of his famous oil tycoon ancestor among his constituents).

The current chairman of the Senate Committee on Commerce, Science, and Transportation has proposed a bill entitled, "Consumer Choice in Online Video Act."

Think of this as a specialized version of net neutrality aimed specifically at online video.

The idea is that as more and more people see the value in services like Netflix over their normal, whopping cable bills, they're likely to cut the viewership cord on their cable TV service and want to watch Netflix, Hulu, and YouTube using their cable modems and other Internet connections.

Rockefeller's legislation would specifically prohibit carriers from traffic modulation for these sorts of services. Basically, it means that if his bill goes through, you could still watch old reruns of the A-Team without worrying about whether the plan won't come together because it's too pixelated or the bandwidth has been squeezed like Murdock's brain.

There's another twist to Rockefeller's legislation that appears to be specifically targeted at networks like CBS, the parent company of ZDNet. You may recall that for a period of time this summer, CBS and Time Warner had a disagreement on fees, which resulted in some programming being temporarily denied from viewers.

Rockefeller's bill extends to this issue and the related issue of programming availability. His bill, as The Hill describes it, would "bar TV companies from pulling their online content during programming disputes," and "limit the ability of companies to use contractual agreements to block websites from buying access to video content."

The second is a way for the bill to, essentially, require content providers or networks (it's not clear yet how that distinction is being made in the bill) to license their content to services like Netflix. That way, if you want your Game of Thrones on something other than HBO, presumably you'd be able to get it.

Some thoughts on this

Personally (and since this is an issue that concerns our parent company, I have to stress that this is my personal opinion only), I think the bill is an over-reach. Rockefeller conflates two very different issues into one bill, and that will probably spell its doom.

All issues of net neutrality are essential to our future as a society. Traffic sculpting must not be allowed, whether it's in the form of old Farscape episodes, kitten videos, or content like this article. Any legislation that prevents traffic sculpting to the benefit of the carriers is very important. Otherwise, individual pipe-providers will be able to decide what you get to see and what you get to watch. That's a freedom of speech issue, among other things.

But forcing content vendors to sell programming or provide content is a completely different issue. That's not about freedom of speech. That's about intellectual property ownership and the extent or limits of the rights associated with that ownership.

Look, I'm as annoyed as anyone that certain programs can't easily be watched online, but property owners have — with the one disturbing exception of eminent domain — have always had the right to choose when and to whom they will (or will not) sell their property.

Rockefeller's bill seems to abrogate that right, and it seems to arbitrarily target a specific class of content owners: producers of video entertainment programming.

This seems like a long shot, and it probably won't pass. I'm not even sure it should pass.

The point, though, is that if John D IV really wanted to accomplish something, he should have hit and hit hard with a bill that just does one thing, and does it right: support net neutrality.

But the problem is this: he's a politician. When have politicians ever done one thing, and done it right?

My guess is that the Consumer Choice in Online Video Act will be a one act show that will be canceled before it begins.

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