BitTorrent, Comcast, EFF Antipathetic To FCC Regulation of P2P Traffic

BitTorrent now offers streaming video on demand, and the company is making a viable play at being the distribution method of choice for all Internet content.

As it turned out, the biggest threat to BitTorrent's growth wasn't copyright infringement. The biggest threat was the growth itself.

Comcast's techs failed to imagine a world where every customer was also uploading files to the Internet. So Comcast — now the nation's second-largest ISP — built connections based on the cable TV model with large downstreams for pushing content, but small upstreams.

File-sharing, or peer-to-peer, traffic involves such uploads. Today, Internet industry sources estimate peer-to-peer traffic eats up anywhere from 37 percent to as much as 95 percent of bandwidth at any given moment. BitTorrent accounts for a sizable share of that traffic.

A 2007 study by professors at Clemson University offered solid proof that as few as 15 BitTorrent users on a Comcast-like network could degrade downloads and uploads for everyone else, making streaming videos stutter, or causing other delays. The popularity of BitTorrent, combined with video-streaming sites like YouTube, now clogs up the Internet, Comcast says. That's why the company says it performs "traffic management" to keep the lanes open for everyone.

Comcast has repeatedly denied that it can "block" BitTorrent traffic. Instead, a spokesman says all ISPs "manage" Net traffic to ensure all customers can receive e-mail and surf the Web. Peer-to-peer users of BitTorrent are a bandwidth-hungry minority, Comcast contends.

Cohen agrees. In fact, it's something he predicted when he first thought up BitTorrent. "My whole idea was, 'Let's use up a lot of bandwidth,'" he laughs. "I had a friend who said, 'Well, ISPs won't like that.' And I said, 'Why should I care?'"

But while Cohen and the Electronic Frontier Foundation concede Comcast has a legitimate gripe about BitTorrent's hogging of bandwidth, it's how Comcast goes about dealing with the bandwidth hogs that pisses them off. They say Comcast uses a Canadian company called Sandvine to look deep into its traffic and zap the BitTorrent parts while spoofing other users.

"Whoever came up with it, I have to hand it to him," Cohen says. "It's well thought out."

Such indiscriminate targeting of one protocol goes against years of Net neutrality practices, Comcast's critics say. "BitTorrent is using the same open standards as everyone else to get the job done," EFF attorney Fred von Lohmann says. "It's none of Comcast's business what application is running."

It's not the practice that's the problem, others say; it's the obfuscation.

Free Press' FCC complaint states, "Amid online rumors and reports, Comcast lied to both the press and the EFF, claiming it did not interfere with peer-to-peer traffic. Lying to the public about consumer allegations is inherently deceptive."

Comcast's actions also create an uncertain environment for developing the next YouTube or BitTorrent. "If this goes unheeded, the word will be out: 'The ISPs can kill your business,'" von Lohmann says.

One business that faces death by data discrimination is Vuze of San Jose, which uses BitTorrent to distribute video from its content providers. In a November petition to the FCC, Vuze executives claim that if Comcast blocks their distribution method, Comcast's customers can't just switch, because cable and phone companies effectively have duopolies or monopolies on high-speed service.

It's like starting a trucking company under the assumption that the roads are open. When the shipments don't make it, your business plan is ruined.

Despite the outcry over the violation of Net neutrality principles, Comcast is breaking no laws. That's because no "laws" have been written. The only thing governing the Internet is a paragraph on the FCC's Web site called a "Policy Statement" that says consumers are entitled to access and run applications and benefit from competition, but that the network is subject to "reasonable network management" by the ISPs.

It's this paragraph in PDF form that Eckersley and I tried to send when we got jammed. And it's the phrase "reasonable network management" that is up for grabs.

In a prepared statement, Comcast executive vice president David Cohen says the company is abiding by current rules. "We believe our practices are in accordance with the FCC's policy statement on the Internet, where the Commission clearly recognized that reasonable network management is necessary for the good of all customers," Cohen said. "Comcast does not, has not, and will not block any Web sites or online applications, including peer-to-peer services."

A Comcast spokesman added that the company delays BitTorrent traffic when there's congestion, but everything eventually goes through: "It's like stoplights. Without them there would be anarchy and gridlock."

But Comcast critics believe that argument is meaningless. "Comcast could 'delay' applications until the year 2009, or 3009, without violating the principle of the Policy Statement, even though consumers would turn off their computers (or die) before 'running' the application," says the Free Press FCC complaint against Comcast. Free Press requests an injunction prohibiting Comcast from blocking data transfers, and is also demanding $195,000 in fines per Comcast customer.

On January 8, the FCC formally opened public comments through February 13 on Free Press' complaint. Simultaneously, other Net neutrality hawks are pushing the FCC to rewrite its rules and regulate ISPs like Comcast more closely. Gigi Sohn, president of Public Knowledge, says the digital consumer rights organization wants the FCC to ban data blocking. "We're going to make this a big deal this year," she says.