Reflections on the Comcast-BitTorrent “Detente”

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I read the news this week of an arrangement between Comcast and BitTorrent, Inc. (called a “non-deal” by some) with great interest. My initial reaction was “Great, Comcast has finally seen the light. Cooperation is a good thing.” Then I took a moment to put it all in perspective and reflect back on our original objectives when we filed our Petition for Rulemaking with the FCC in November 2007. Here are my thoughts.

First, let’s call a spade a spade here. Comcast got caught with its hand squarely in the cookie jar. It publicly denied it was engaging in questionable “traffic shaping” practices, but was doing so all along. It was only after a news organization investigation confirmed its activities that Comcast came clean. For years, Comcast engaged in definitional gymnastics by denying that it was blocking “particular companies or applications,” but all the while it was engaging in “man-in-the-middle” attacks intended to interfere with seeding activities of all bit-torrent protocol based applications, like Vuze.

Comcast eventually testified at the FCC’s hearing at Harvard, along with Vuze and directly acknowledged its tactics. However, Comcast took the debate to another level, stating that there are no FCC rules that limit what Comcast can do in “managing” traffic over its network, and the FCC has no authority to make any. Simultaneously, Comcast was amending its User Agreement to make crystal clear that they can do pretty much whatever they want in the name of network management. Not surprisingly, there are now two class action lawsuits pending against Comcast by Comcast users.

Then, Chairman Martin decided that further hearings were required, this time to be held at Stanford. It’s not clear whether the Chairman wanted to gather more information or whether he was troubled by the fact that Comcast paid “seat-fillers” to stand in line and take seats at the hearing (and in some cases sleep during the proceedings). The speaker line-up for the Stanford hearings remains in flux, but Comcast certainly does not want to be on the hot seat again.

Next comes the announcement of “cooperation” between Comcast and BitTorrent, Inc., the company. Is this announcement a clever PR campaign or does it hold the prospect of real cooperation and benefits to the industry and consumers? It is probably a bit of both, but let’s be clear about what it is not.

First, it is not a detente between Comcast and the bit-torrent world. While BitTorrent, Inc’s founder, Bram Cohen, created the original open source bit-torrent protocol, for which he should be commended, many companies have improved on it since, including significantly Vuze. The fact that the protocol is called “bit-torrent” is increasingly a matter of legacy, not invention. In any event, scores of companies, including Vuze, have built their own free-standing applications based upon the protocol. BitTorrent Inc. itself represents only a fraction of the bit-torrent-based applications being used today, and has no control over the many millions of bit-torrent based applications on desktop computers around the world. I have little doubt that Comcast wanted its announcement to be perceived as a sort of universal resolution of its differences with the bit-torrent world, but nothing could be further from the truth.

Second, no matter what value there is in cooperating with Comcast, Comcast is but one company. They control only their own actions. There are over a dozen Internet network operators in America, both cable companies and telephone companies, many of whom are believed to be engaging in their own “traffic shaping” (i.e. throttling) practices. Comcast’s actions do nothing to create transparency as to what those companies are doing, much less to place any restrictions on their actions. Whose cookie jars do they have their hands in? Remember, it is Comcast that told us that there are no laws governing network management practices, and the FCC cannot make any.

In the hopes of shedding some light on the nationwide practices of network operators, Vuze has created and distributed a software “plug-in” which is intended to monitor network interference and report back to Vuze. If we are able to gather some meaningful data, we will surely share it with the world. What this debate needs is facts, not more press announcements.

This brings me full circle. When we filed our petition for rulemaking with the FCC in November, 2007, we stated that both regulation and meaningful industry cooperation are necessary to protect consumer rights and foster innovation. We still believe that. Whether you believe that Comcast’s cozying up to BitTorrent, Inc. arises out of genuine enlightenment or is just a publicity stunt, in my view it changes nothing in terms of our original Petition.

Network operators already have demonstrated their willingness to engage in mischief that harms consumers. For years they said that market forces will solve all ills and that network management restrictions were a “solution in search of a problem.” Both turned out to be untrue. We are at a point where non-binding policy statements and assurances of good faith are no longer sufficient. Innovative companies like Vuze rely critically on the pipes controlled by network operators to deliver their service to consumers. It is unreasonable to expect companies like Vuze to compete in a world where there are no clear, enforceable rules to keep bad behavior in check. There is even greater cause for concern when the company that controls the pipes also is your competitor, as is Comcast with its own video offerings.

The FCC should adopt enforceable rules that protect all consumers against improper throttling tactics that threaten the ability to consume rich media. Ultimately, only the rule of law will compel network operators to stay on the straight and narrow. While we give the benefit of the doubt to Comcast and BitTorrent, Inc. that their cooperation may hold promise, we will continue to urge the FCC to move forward with our Petition with all due dispatch.

Jay Monahan
General Counsel

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