Media Pulse: The Closed Net Threat

Sara Dosa August 4, 2010

Doc filmmakers have finally figured the Internet—how to wield its many tools to fund, exhibit and distribute their films. While still tinkering with the inevitable kinks, the age of Web-based exhibition and distribution has dawned. We have Manohla Dargis extolling the “New World” of online DIY filmmaking. We have SnagFilms, Babelgum and Mubi showcasing hundreds of films online. We have Facebook fundraising parties, films projected in Second Life and “pixel markets” for transmedia. Indeed, we were just beginning to get it down. Could all this hard work be wiped out?

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The future of online independent film may in fact be in peril. A dramatic scenario? Not according to "net neutrality" advocates. Net neutrality refers to the virtues of an open Internet architecture whereby consumers—rather than Internet Services Providers (ISPs) such as Comcast, AT&T or Verizon—determine the speed of their Internet connections, and which content gets prioritized. From this perspective, the Internet should remain a “dumb pipe”—simply a thoroughfare through which unmediated content flows without preferences or opinions. And, as a “public good,” it should be subjected to governmental regulation by the Federal Communications Commission to ensure that it stays that way. In fact, the FCC has proposed Open Internet Rules that would turn net neutrality into policy.

Why does the Internet need government regulation? Advocates of net neutrality believe that ISPs intend to create a two-tiered Internet—a fast lane and a slow lane—that manipulates speed and quality to skew competition in their favor. Profitable commercial content would route to the fast lane, while non-commercial content such as documentary and indie film would be relegated to Internet equivalent of AM radio. ISPs may seek to “slow or stop” the content that they find unfavorable or unprofitable. Filmmakers would therefore face an increasingly uneven playfield with regard to online exhibition and distribution.

However, ISP sympathizers contend that FCC regulation will transform the Internet into a cyber bureaucracy, wrought with red tape, lags and broken inefficiencies. An ISP-controlled Internet, we're told, would create competition, therefore entrepreneurship and innovation. Content “worthy” of being paid for would rise to the fast lanes, thus improving overall Internet performance. In their opinion, the Internet is not a public good, but rather a “service” to be determined by the marketplace.

The D.C. Circuit Court of Appeals agreed. In the Comcast Corporation vs. Federal Communications Commission case decided this past April, the Court unanimously ruled that the FCC lacks the authority to regulate the Internet under the jurisdictional authority it had previously used. The ruling sparked a tidal wave of reaction of from media activists, free speech groups and filmmakers alike. Consequently Julius Genachowski, the Obama-appointed FCC Chairman, renewed his call for Open Internet Rules by soliciting Public Notices and Reply Comments from vocal constituents. The FCC collected over 74,000 pages of documents that evaluate the current Rules.

Recognizing the net neutrality controversy’s specific impact on independent film, Genachowski reached out to the documentary community at the Silver Docs film festival and conference in June. There, Genachowski affirmed his commitment to an open Internet, and also to increasing broadband access around the country. “When more people have access to high-speed broadband, more people can access film online,” he said in conversation with Writers Guild of America president, Michael Winship. “The most important thing we can do with this new medium is to make sure that the Internet is open for content creators.” Naturally, the filmmakers in the audience vociferously agreed.

Despite Genachowski’s Silver Docs appeal, the FCC’s proposed Open Internet Rules do not go far enough for the doc and indie community, argues one of the Reply Comments submitted to the FCC. Filed on behalf of documentary vanguards including the International Documentary Association (IDA), the Independent Film Project (IFP), the National Association for Media Arts and Culture (NAMAC) and Film Independent (FIND), among others, the Comment states that the FCC’s proposed rules conflict with the FCC’s Open Internet intent. “The proposed Rules contain significant flaws that will undermine this objective [of preserving net neutrality],” write the Comment’s legal team of entertainment attorney Michael Donaldson, USC law school Professor Jack Lerner and law students Daniel Senter and Annie Aboulian. While the commenters do support the Open Internet Rules in general, the current plan potentially could “erect the same barriers to entry online that afflict documentary and independent filmmakers offline.” In other words, Internet distribution would soon mirror distribution in the real world: a hierarchical system determined largely by major studios with deep pockets. The commenters maintain that a more comprehensive policy must be put in place to ensure that the digital distributive platforms continue to thrive.

The Comment goes on to unveil specific loopholes. For instance, under the FCC’s current Open Internet Rules, an undefined category of “managed services” exists that does not fall within their purview for regulation. This means that an ISP would simply classify desired content or applications as a “managed service” in order to escape regulation. As a result, the Comment states, “managed services that favor some applications or content can be expected to slow down other, disfavored applications or content.” In other words, it would still be a pay-to-play system: “those with the ability to pay would get access to an ISP’s broadband fast lane, while those without large budgets for distribution and marketing, such as start-ups and documentary and independent filmmakers, would be pushed into the slow lane.” Consumers would undoubtedly gravitate towards the fast lane, leaving doc and indie films behind in the proverbial cyberdust. Without adopting the Comment’s recommendations, ISPs would retain considerable maneuvering room to manipulate, or even slow or stop, content-delivery, yet under the guise of a neutral net.

The FCC continues to review comments—an undoubtedly lengthy process replete with hearings, litigations and further evaluations. In theory, the FCC’s proposed rules go a long way to strengthen and preserve the open Internet. But, if not adequately protected, the Internet’s great equalizing infrastructure could transform into a hierarchical one that would bar access to independent mediamakers and prevent them from benefiting from the next phase of the online distribution revolution.

The net neutrality debate raises broader questions about how information is accessed in the digital age. The Obama Administration recently unveiled its $795 million Broadband Development Grants, conveived to extend access far into the “unplugged” nooks and crannies of our nation. At its core, these grants intend to close the digital divide. However, what shape will this new plan for access take? Will it go the public route of net neutrality, or the private one driven by the marketplace race? If forums for social commentary (à la doc film) are “slowed or stopped,” what are the implications for democracy? Ultimately, this debate presents a lens for understanding some of the major issues of the Internet era. It hits at the heart of equality and development, of technology and art, of the public and the private and the politics of access.

Sara Dosa is a documentary filmmaker and writer living in the San Francisco Bay Area. She is currently codirecting and producing two films and serving as the grants and residencies coordinator at the San Francisco Film Society.