PlayOn, Hulu, NBC, Congress, and Boxee...

February 5, 2010 | Jeff's Blog

Many members of the PlayOn community have been asking about PlayOn's relationship with content providers, most notably Hulu. This long discussed topic has recently gained more interest due to Congressional hearings last week looking into the Comcast acquisition of NBC Universal (NBCU). During those hearings, Representative Rick Boucher (D-VA) asked NBC Universal CEO Jeff Zucker, "Did Hulu block the Boxee users from access to the Hulu programs"?

Mr. Zucker's response (below) was interesting for a number of reasons, which we at PlayOn feel warrant additional clarification and comment.

"This was a decision made by the Hulu management to, uh, what Boxee was doing was illegally taking the content that was on Hulu without any business deal. And, you know, all, all the, we have several distributors, actually many distributors of the Hulu content that we have legal distribution deals with so we don’t preclude distribution deals. What we preclude are those who illegally take that content.", said Zucker.

First of all, Mr. Zucker's initial inclination to point the finger at Hulu all but directly contradicts Hulu's own <a href="http://blog.hulu.com/2009/02/18/doing-hard-things/">public statement</a> in which their CEO, Jason Kilar, said that, "Our content providers requested that we turn off access to our content via the Boxee product, and we are respecting their wishes." At the time Hulu's statement was issued (February, 2009), NBCU was one of only two content providers who owned a significant stake in Hulu (the other being News Corp). It seems highly unlikely that the "content providers" Mr. Kilar was referring to did not include NBCU, given the significant influence NBCU is capable of exerting on Hulu as a material equity stakeholder.

Mr. Zucker's seemingly disingenuous finger-pointing at Hulu serves to underscore the awkward position NBCU finds itself in when trying to encourage Internet distribution of its content through Hulu to the PC screen (which reduces the frequency of Internet piracy), while simultaneously trying to prevent the same Internet distribution to the TV screen (which increases cannibalization of broadcast viewership). It is <a href="http://videonuze.com/blogs/?2009-10-15/Can-Advertising-Alone-Support-Pre... secret</a> that the economics of an “over-the-air” viewing are currently more attractive to NBCU than an "over-the-net" viewing. Admittedly, balancing these competing objectives must be a difficult exercise for NBCU. However, it would seem more productive to try to work with players like PlayOn (and Boxee) in order to improve the economics of an episode on the TV screen, instead of pursuing the short-sighted tactic of attempting to block such technologies. As one small example, Hulu could implement a model where more ads were inserted into commercial breaks when viewed on the TV screen, and technologies like PlayOn (and Boxee) could participate in such a program by identifying themselves to Hulu's system as a "TV Browser" (to facilitate this). We at PlayOn would be more than happy to collaborate with Hulu on such an approach (and have expressed this willingness to both them and NBCU in the past). I believe Boxee would be eager to do so as well.

The second point of Mr. Zucker's response which bears scrutiny is his statement that, "what Boxee was doing was illegally taking the content." To understand this point, it is first necessary to understand what Boxee and PlayOn are, and what they do functionally. As many PlayOn fans have been well aware of for quite some time, PlayOn is, fundamentally, a Web browser. It is PC software which communicates with and downloads/renders content from remote Web/content servers in order to fulfill browsing requests made by a user. It uses standard Web protocols for this communication, just as popular browsers like Microsoft Internet Explorer, Mozilla Firefox, or Google Chrome do. In fact, PlayOn is actually a customized version of the Internet Explorer engine (the current version of Boxee uses the Firefox browsing engine in a similar way). This makes technologies like PlayOn and Boxee very different (legally) from the "distributors" (aka: "websites") that Mr. Zucker refers to in his statement. PlayOn is a browsing technology. It is not a distribution platform or a video website. Neither Mozilla nor Google (nor Microsoft or other browser makers) have distribution deals with Hulu. It is misleading of Mr. Zucker to suggest that other browser makers are obligated to have distribution deals in order to enable browsing to Hulu (simply because they display content on the TV screen instead of the PC screen). Boxee's own response to the hearing makes a similar clarification.

On a more speculative note, it is important to point out that the original Boxee implementation was quite different than the current one and, at the time Hulu initially blocked Boxee, there was a much stronger legal case that Hulu could have made against Boxee than it can currently. Specifically, Boxee had setup a process by which it ran a "bot" that collected all of the Hulu metadata and then housed it on Boxee’s own server as its own feeds which were redistributed to Boxee users upon request by the Boxee software. This process was somewhat similar to the way Google (and other search engine) "bots" collect data from websites in order to include them in search results. However, there is an <a href="http://en.wikipedia.org/wiki/Robots_exclusion_standard">accepted standard</a> (The "<a href="http://en.wikipedia.org/wiki/Robots_exclusion_standard">Robot Exclusion Standard</a>") for website owners to "disallow" such bots collecting data from sections of their sites. Hulu had implemented such exclusions of their feeds (http://www.hulu.com/robots.txt), and Boxee's implementation at that time was violating this exclusion. I believe this gave Hulu both a technical and legal justification (and means) of blocking Boxee at that time. That has clearly changed, as Boxee has since implemented a true Browser model (as PlayOn has had from the beginning). But I suspect this initial case of probable illegality is what gives Mr. Zucker the ability to state (in the past tense) that "what Boxee was doing was illegal", even if it is no longer true. Mr. Kilar's references to Boxee took on a similar historical tone when he was <a href="http://richardbrandt.blogs.com/entrepreneurwatch/2009/11/why-hulu-is-doo... quoted</a> as saying, "Boxee had no right to do what it was doing."

All told, this increased scrutiny at the Congressional level will likely cause NBCU/Hulu to engage in more acceptable business practices. The importance of getting the NBCU acquisition approved is far greater than what is at stake in the battles between Hulu and companies like PlayOn and Boxee. Let's hope it ushers in a new era where we can all collaborate to make Internet viewing on the TV both enjoyable to consumers and profitable to content owners.

- Jeff Lawrence, PlayOn CEO

The PlayOn Blog

PlayOn, Hulu, NBC, Congress, and Boxee...