One of the interesting side effects of the debate over the Stop Online Piracy Act earlier this year was the question of whether the legislation would damage the alignment between the tech community the Democratic Party. But as the Republican convention winds down, the GOP isn’t exactly making a major pitch either to Hollywood or to tech donors.

““The Republican Party platform language strikes a very smart balance: it emphasizes the importance of us doing more as a nation to protect our intellectual property from online theft while underscoring the critical importance of protecting internet freedom,” Motion Picture Association of American chairman Chris Dodd said in response to the Republican platform.

But there isn’t that much detail there. The platform talks about intellectual property mostly as a trade issue between nation states rather than as a matter of consumer behavior abetted by the kind of entities the content industries have identified as major malefactors. In the party’s section on China, IP comes up as part of a larger package of issues: “Our serious trade disputes, especially China’s failure to enforce inter- national standards for the protection of intellectual property and copyrights, as well as its manipulation of its currency, call for a firm response from a new Republican Administration.” And in more general terms, the platform promises that “Punitive measures will be imposed on foreign firms that misappropriate American technology and intellectual property.”

On tech, the Republican platform doesn’t really differ from the Democratic promise in 2008 to “implement a national broadband strategy (especially in rural areas, and our reservations and territories) that enables every American household, school, library, and hospital to connect to a world-class communications infrastructure”—it just blames Democrats for making “no progress toward the goal of universal coverage—after spending $7.2 billion more. ” And it has a real contempt for net neutrality, describing it as “trying to micromanage telecom as if it were a railroad network,” in itself a revealing sentiment.

We’ve yet to see what the Democratic platform will include, though I wouldn’t be surprised if there’s some attempt to bridge Hollywood and the tech community and make up for the damage done by the SOPA debate. But these are party platforms, and this is a year when the broad strokes of the economy are going to predominate in favor of a segment of the economy that may be key to some donors’ hearts, but won’t swing a huge chunk of swing voters at the ballot box. It’s easy to forget this while we’re immersed in the internet, but we’re a long way from the point where a substantive conversation about cable, the internet, and the way we govern and access content is going to be a mandatory part of the political conversation.

There are a lot of people who want a lot of things about the way we watch television to change: to be able to buy channels on a stand-alone basis rather than in bundles, to be able to buy streaming access to premium networks like HBO without having to purchase a cable subscription first, to be able to stream shows that are available through services like Hulu as quickly and smoothly as if they were airing on a network. As much as I would also like to see some of those things come to pass, and as much as some networks would like to be able to offer some, if not all, of those options it’s been hard to get through to folks that there is a complex system governing cable television and internet that makes those changes difficult to make without current successful business models take a major hit that could disrupt the delivery and quality of the programming we currently find so desirable.

But major changes to that system might be closer than we think.

The Wall Street Journal reports today that the Justice Department is probing many of the elements of the cable and internet delivery system that throw up barriers to alternate means of distributing content. The story’s pegged as an investigation of whether Comcast, in violation of its anti-trust agreement that let it merge with NBCUniversal, is giving preferential treatment to content that streams through its own outlets so it streams faster and cleaner than content that comes over the internet from companies like Netflix. That’s critically important, as is net neutrality generally, but apparently, that’s not the only thing Justice is looking into:

Another issue that investigators have asked about is whether cable companies are acting anticompetitively by making viewers have a cable subscription before being able to access certain online programming. Comcast and some other companies have verification systems requiring viewers to enter their cable subscription details before being able to watch, say, ESPN’s programming on an iPad tablet…

The Justice Department also is investigating the contracts that programmers sign in order to be distributed on cable systems. Some contracts include so-called most-favored nation clauses, which make programmers give the biggest cable companies the best price they are offering anywhere, among other conditions. The Justice Department is questioning whether there are legitimate business reasons for such terms or whether they are intended to stop programmers from experimenting with other forms of online distribution, a person familiar with the matter said.

Whatever the ultimate outcome of the investigation, I’m glad it’s taking place. So much of the conversation around what people find frustrating in the current cable regime is erroneously aimed at networks, rather than the regime they operate within. This investigation should recenter that conversation, and hopefully give us more insight into the fulcrums we need to push on to give us an environment where networks can have more opportunities to monetize their content and to pursue new subscribers without risking the ones they currently have.

There’s been a lot of discussion over the past couple of days about why HBO hasn’t made its content more widely available to non-cable subscribers. While I understand individual consumers are frustrated, I think we need to reckon with the fact that this is not a problem of a single premium network. It’s a limitation of an ecosystem that also happens to have produced the kind of environment where HBO can make the content that makes it so desirable.

Erik Kain started the current wave of this, first blaming HBO for piracy, then, arguing that HBO should offer HBO GO as a standalone service and that the company would make more from those subscriptions than from its current arrangement from cable companies, and eventually backing off for some of the reasons I’ll articulate. But it’s important to reiterate that a stand-alone service is not a minor change . There are major forces at work here, and both HBO and we would do well to be attentive to them.

First, I agree with Yglesias that commentators, particularly those of us who cover entertainment technology, tend to dramatically overrate the extent to which cord-cutting is actually happening and to which consumers want to and are dropping their cable in favor of streaming services. Even if broadband gets cheaper and broadband adoption gets more serious, that doesn’t mean that people are going to prefer streaming services to cable. As I wrote earlier this week, people are dropping cable subscriptions, but not yet in a way that indicates a cultural shift rather than a tough economy. The cable companies aren’t wilfully ignoring overwhelmingly compelling evidence. They’re waiting out a trend to see if it’s real. And until sports in particular, a much bigger driver of cable subscriptions than the premium networks, get unbundled from cable, I’m just not sure we’re going to see huge, permanent accelerations in this trend, particularly if use of streaming services like Hulu gets tied to authentication of a cable subscription or a tacked-on fee.

Second, waiting that out isn’t evidence of idiocy or a desire to do harm to consumers (though it’s a mystery to me why folks who consume content assume entertainment companies’ main purpose is to be nice to them rather than to make money). HBO and other premium cable channels have a very solid and established business model here. Cable subscriptions overall may be dropping, but HBO added 190,000 subscribers in the fourth quarter of last year, the biggest growth the network’s experienced since 2006. Folks may not like paying for bundled cable, but there isn’t actually compelling evidence that HBO in particular rather than cable companies in general should be worried about cord cutting.

And though Erik suggested that it would be easy for HBO to make up lost revenue by charging more for HBO subscriptions, I think he dramatically understated the difficulty and unpredictability of that move. It’s not just that “HBO has deals with cable companies that may make this move difficult, and quite possibly very expensive.” It’s that there is no way the cable companies would let this go quietly. At all. As Todd VanDerWerff put it:
Read more