Blocking BitTorrent Is Sue-tastic

Reporter’s Notebook: It was, perhaps, inevitable that litigation would follow the accusations that Comcast, the second largest cable provider in the country, is throttling its BitTorrent traffic. In this case, though, it’s likely only the lawyers will win.

The case stems from an Associated Press report last month that found Comcast was interfering with peer-to-peer file transfers. BitTorrent operates by making every member on the network both a sender and receiver. As you download a file and the bits arrive on your computer, they go right back out to other people. Thus, a download comes for many sources.

The report, which was quite thorough, found that Comcast was slowing the upload of completed files by sending false signals that the transfer was complete. This was making the file uploads go very slow.

Naturally, Comcast subscribers are hopping mad that they are being forced to wait to download their MP3s, DVD rips and videogames and threatened legal action. One has actually done it. A California man named Jon Hart, represented by the Lexington Law Group has filed suit in California Superior Court in Alameda County.

The suit, which he wants the court to certify as a class action so other subscribers can join in, argues that Comcast’s promises to “Download at Crazy Fast Speeds” are false and misleading, since Comcast limits downloads by transmitting “unauthorized hidden messages to the computers of customers” who use peer-to-peer file sharing software.

The suit seeks to force Comcast to stop interfering with the P2P traffic. Oh, and he wants damages, too.

Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, said Comcast is at the very least guilty of mishandling the issue, which has been around since earlier this year when people began contacting the EFF with claims of Comcast’s interference with their BitTorrent transfers.

“From my perspective, were they unresponsive and did they mislead people? Absolutely,” von Lohmann told me an interview. “Is this something customers would want to know about? Absolutely. Whether it’s legal or not, I think the lack of transparency Comcast has demonstrated and the fact they tried to brush this under the rug until they were caught by the AP suggests something not good for the marketplace.”

Comcast could have a semantic argument, that it never said it was “blocking” BitTorrent traffic but it was slowing it. There’s no attempt to hide this policy, it’s in the online help FAQ, which reads:

“We have a responsibility to provide all of our customers with a good Internet experience and we use the latest technologies to manage our network so that they can continue to enjoy these applications. During periods of heavy peer-to-peer congestion, which can degrade the experience for all customers, we use several network management technologies that, when necessary, enable us to delay – not block – some peer-to-peer traffic. However, the peer-to-peer transaction will eventually be completed as requested.”

von Lohmann thinks Comcast should have been up front about this from the start. “The way Comcast handled this issue, they did not give customers everything they needed to make a decision. If they had come forward and explained what they were doing and made the case for why this is the right way to do it, they would get a lot less heat,” he said.

Of that we are in agreement. Comcast gets an F in damage control. However, as someone who has been with this broadband service since it was called MediaOne, I have a few thoughts on the matter.

First, there is no legal harm here. The throttling is of completed uploads — what the downloader is sending out, once the download is complete. So you have received your download before any throttling kicks in. The notion that “Class members have suffered and will suffer irreparable harm and damages as a result” of Comcast’s conduct, as the suit claims, is preposterous.

Second, your connection is not a dedicated pipe. This is something people either don’t know, forgot or don’t seem to care about. The pipe provided by a cable modem is shared by a locality, usually a street or a neighborhood block, so one bandwidth pig can slow the whole neighborhood down. It may say 6Mbps downloads on the advertising, but in reality you get a lot less. I’ve never had a BitTorrent download exceed 100kbps/sec.
If you want a dedicated pipe, get DSL.

Upload speeds are considerably slower than download to begin with. All broadband systems are designed like this, save for Verizon’s FIOS, because a normal user is pulling down considerably more data than he or she is sending out. Comcast downloads may be 6Mbps but the upload speed is 384kbps. If you fill that with BitTorrent traffic, it will clog very fast, and since the pipe is shared, you can slow down your neighbors rather easily. That’s the crux of Comcast’s argument.

Finally, a question for Mr. Hart. Do you really want your downloads to come out in discovery and in open court? I know what people download on BitTorrent, I’m equally guilty. Anyone can see what’s on the major Torrent sites. Despite the desire of BitTorrent’s developers to go legit, it’s still largely a pirate’s paradise.

If you’re a Comcast Internet customer, they know every bit that has passed between their computers and yours. So unless your P2P history is absolutely spotless, you better think long and hard about whether you’d like your downloading history to come out in open court, because you just know the RIAA and MPAA will be waiting in the wings for that information.

Comcast isn’t perfect, and this issue will go right to the heart of the Net Neutrality debate. But this is one instance where I am willing to give them the benefit of the doubt, because bandwidth is not unlimited, much P2P use is still dubious, and there is no real harm done. Comcast should have handled this issue way better than it has. Quite frankly, if you don’t like their BitTorrent throttling, get DSL or FIOS and get over it.

Andy Patrizio is a Senior Editor for based in San Francisco.

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