Is Comcast starting to use its broadband penetration to “pick winners” and depart from the principle of net neutrality? Comcast is allowing its subscribers to use an Xbox 360 in place of their set-top box to access on-demand programming without counting this against broadband caps. Larry Downes argues that this shouldn’t be cause for alarm:
According to Columbia Law Professor Tim Wu (who coined the term), the goal of Net neutrality “is to try and guarantee that similar content gets treated similarly.” Wu believes the new service violates that goal. “If you think about it for a second,” he said in an interview with Marketplace Tech Report, “if something doesn’t count against your cap, obviously it’s getting a preferential treatment. You’re more likely to stream that instead of someone else’s.”
Well, let’s take Wu’s advice and think about it for a second. In no sense is Comcast’s on-demand content getting “preferential treatment” over Internet video service such as Netflix, Hulu, or YouTube (known as “over-the-top” services). Like all television programming, it is similar to Internet video services only in that it uses the same cable infrastructure the company maintains for customer Internet access and digital voice services. Using an Xbox instead of a set-top box for on-demand programming (some of which is included in the monthly fee and some of which is pay-per-view) doesn’t change the fact that the programming in question is not Internet content to begin with. It’s television content.
Downes goes on to explain why this distinction is actually very important. I recommend reading the article, though I’m also curious to read Tim Lee’s reaction to Comcast’s move.