BitTorrent Was a Bad Case from the Start

by on April 20, 2010 · 15 comments

After reading over some of the postings from the few weeks and exchanging emails with TLF’s Richard Bennett, I am coming to see how disastrous a decision it was for the FCC to pursue sanctions against Comcast over its throttling of BitTorrent files.

True, the case, and the court decision has allowed activists to foam at the mouth about a “crisis” in Internet service.

Yet despite the breathless warnings, none of this resonates with the public. The results of a recent Rasmussen Reports poll, posted here by Adam Thierer, that found that 53% of Americans oppose FCC regulation of the Internet.

Perhaps Americans are sanguine because there is no Internet censorship problem. Even though the issues in the BitTorrent case are a bit technical, the public groks on some level that claims by proponents of  regulation that the recent U.S. Court of Appeals decision in favor of Comcast would lead to rampant Internet censorship don’t ring true.

That’s because first and foremost, the BitTorrent case was not about blocking or “censorship.” In fact, in the more than four years of debate, the only real instance of a network neutrality violation, that is, an outright flouting of the guidelines set up by former Chairman Michael Powell, came in 2005 when Madison River Communications blocked Vonage’s VoIP service. And Madison River got caught and fined.

Since the rather short-sighted actions of Madison River Communications, a small North Carolina competitive local exchange carrier, hardly generate the emotions or headlines that an AT&T or Comcast would, network neutrality activists were left scrounging for any “censorship” tidbit they could find, even if it had little to do with the Internet access (Jim Harper’s recent podcast critiques recent claims of neutrality violations).

Aside from being a bad example of a network neutrality violation, the Comcast-BitTorrent case brought out specific problems with the neutrality concept, including the idea of whether the Internet is neutral at all. But in plain language, the Court of Appeals  asserted an age-old principle about freedom and boundaries: Your right to swing ends where my nose begins.

Now let’s look at what BitTorrent is and what Comcast actually did.

BitTorrent is a file transfer protocol. That is, it is a set of instructions for encoding and decoding content for transmission. It is one of many protocols the Internet uses, which include the basic Internet Protocol (IP) itself. Other examples are the Hypertext Transfer Protocol, which is long form of the “http” abbreviation used in web site URLs. There are also other protocols that users rarely encounter but govern the way computers on the Internet exchange information and execute programming. The Session Initiation Protocol (SIP) and the Simple Object Access Protocol (SOAP) are two examples, for those who want to get granular.

IP, HTTP, SIP, SOAP and BitTorrent are all open protocols. That is, the coding languages are available to anyone who wants to use them. They are also intentionally built to be compatible with the underlying Internet protocols. But while a protocol may open, it may not always be license-free.

This is the first major misunderstanding in the BitTorrent case. The BitTorrent protocol takes its name from BitTorrent Inc., the company that developed it. BitTorrent Inc. itself is not a content or applications provider.

BitTorrent Inc., rather, develops content delivery technology, of which the BitTorrent protocol is an example. In order to create a market for the BitTorrent protocol, BitTorrent supplies clients and plug-ins—pieces of software that tie into your browser—to consumers for free. With millions of BitTorrent clients attached to consumer browsers, there is an incentive for larger content providers to pay BitTorrent Inc. for the right to use the BitTorrent protocol to encode their content. Trouble is, because of the way it is designed, the BitTorrent protocol tends to increase congestion on networks owned and operated by Internet service providers like Comcast. BitTorrent files could move easily across the network, but Comcast said they were decreasing quality of service for the majority its customers and applied countermeasures that slowed the rate of BitTorrent transfers.

This is why Comcast v. FCC will be remembered as a bad test case for network neutrality. The court exposed the FCC’s blunder of framing what was a legitimate dispute over network management as an issue of Web censorship. The Comcast-BitTorrent dispute was not about a giant service provider squelching consumer access to the Web, it was a business conflict between two companies with competing agendas. BitTorrent’s interest in maximizing the use of the BitTorrent protocol ran up against Comcast’s interest in preserving high quality of service for the overwhelming majority of its customers. Pointedly, the two companies worked out this conflict within weeks, mostly because as businesses, they understood each other’s motivations.

The BitTorrent decision raises more questions going forward, especially when it comes to the idea of “reasonable network management,” which the FCC’s current notice of proposed rulemaking on net neutrality would permit. But if Comcast’s throttling of BitTorrent was not reasonable, what is?

Now I know I risk being flamed here, but I’m not engaging in sophistry. Comcast’s initial attempt to manage BitTorrent files was ham-handed, but its tactic, it could be argued, was content neutral. Comcast targeted files that used the BitTorrent protocol, regardless of what they contained. It certainly made good headline when AP decided to use BitTorrent transmit the King James Version of the Bible, only to have it throttled. But the same thing would have happened if AP had used instead chosen the entire issue library of Playboy magazine, only it would not sparked the dramatics from the Christian Coalition (as reported here).

Finally, the BitTorrent protocol itself is a neutrality workaround. The protocol was developed to accelerate the transmission of rich media, in other words, to help providers of hefty content like TV shows, movies and other hefty content, carve out a “fast lane” for their data—an idea that runs directly counter to the so-called network neutrality principle.

Here’s how BitTorrent describes its software, branded BitTorrent DNA, on its website:

BitTorrent DNA is a disruptively effective content delivery technology. It significantly reduces bandwidth costs for popular files while dramatically improving the performance and scalability of websites. BitTorrent DNA enables websites to seamlessly add the speed and efficiency of patented BitTorrent technology to their current content delivery infrastructure, requiring no changes to their current Content Delivery Network (CDN) or hardware in the origin infrastructure. Businesses can benefit from the efficiencies of peer-assisted content delivery while improving the end-user experience.

As an interesting thought-experiment, let’s suppose Comcast, or any other Internet service provider, was to acquire BitTorrent. Now, in the above quote, substitute the name of the ISP for BitTorrent. What you end up with is something like this: “Comcast DNA enables websites to seamlessly add the speed and efficiency of patented Comcast technology to their current content delivery infrastructure.”

Under the current guidelines, as well as the proposed rules, this would be a network neutrality violation. But wait, the FCC already attempted to sanction Comcast for throttling the BitTorrent protocol. The FCC’s underlying assumption, then, is that the BitTorrent protocol is beneficial and that an ISP should not be allowed to impede it. Under a neutrality regime, however, the FCC could turn around and sanction any ISP that chose to market it, or, more realistically, another protocol or technique like it.

Here’s where network neutrality breaks down and presents an inherent contradiction, not to mention all sorts of equal protection issues. Yet regulation proponents dismiss the idea that network neutrality would slow network investment. Simply put, no ISP, software developer, or venture capitalist would know in any given instance how the FCC would treat any innovative technology that would add “speed and efficiency” to “content delivery infrastructure.” On Monday, one technique could be acceptable. On Tuesday, another technique might not. The D.C. Court understood all these problems, and they were among the reasons it reined in the Commission.

  • Tim Lee


    I'm confused about why you consider BitTorrent's description a network neutrality violation. NN is a principle about the management of networks. It doesn't say anything about the design of network protocols. If Comcast created a P2P protocol and gave it away, I can't imagine anyone objecting to that, unless Comcast didn't re-configure their network to favor packets using that protocol.

    I'd encourage you to check out the section of my NN paper where I talk about CDNs like Akamai, which is a similar (though somewhat trickier) case. The fact that a technology increases content delivery speeds isn't inherently a NN violation–the question is whether the speed-up is accomplished by discriminatory routing policies. I think it's pretty clear that BitTorrent does not do this.

  • cryptozoologist

    this piece is a hack job and not up to the standards i have come to expect from tlf. where to begin…
    53% of americans oppose internet regulation! first of all by following the links to rasmussen (you should have tried it) there is no hint how the questions were phrased. i suspect if you asked an appropriate sampling of americans “do you think the government should regulate isps so that they do not eavesdrop on your internet activity in order to stop you from doing things they don't want you to do?” you would not get nearly 53% opposed.

    there is no conflict or contradiction if an isp were to promote the use of bittorrent. the bittorrent protocol utilizes tcp/ip in a conformal manner to distribute files throughout the network. by suggesting that customers will get a performance boost from using it causes no packets to be discriminated against. unlike the case where an isp pries open packets, concludes (maybe even correctly) that they are undesirable and proceeds to disappear them.

    arguments like “regulation proponents dismiss the idea that network neutrality would slow network investment” is about as valid as “proponents of the abolition of slavery dismiss the idea that freeing the slaves would slow down investment in cotton plantations” the exact rate of “network investment” is entirely irrelevant. there are and will continue to be upward forces on network investment until our thirst for bandwidth is slaked. there is only so much bandwidth per person required. i would put an upper bound on this to be around the bandwidth required for an uncompressed high definition video stream. at that point where all individuals have that, there will be little to motivate network investment. by that measure a network that satisfies everyone's needs is less desirable than regulating the internet in order to prevent discrimination against content that is deemed undesirable by the isps.

    instead of offering disingenuous arguments against (cue scary music) “government regulation” why not hold up for debate the reasoned potential consequences of poorly designed regulation. if all that spews from the conservative punditry is straw men and fear mongering then the movement deserves to be abandoned to the dustbin of history.

  • steventitch

    I don't really consider BitTorrent a NN violation, but I see no reason why it can't be construed as one. The chorus we hear over and over from the NN crowd is “no fast lanes” for the Internet. My point there already are fast lanes for the Internet, and your citing of Akamai is an example. Meanwhile, the network neutrality principle dictates that an ISP can't offer Tim's Web site any sort of prioritized service for a higher price, because by violating the so-called “neutral” condition of the Internet, it would be unfair to Steve's Web site, which has limited resources. It may be that Tim and Steve compete head-to-head in providing similar content, but that;s secondary to the general principle. I've seen the network neutrality side argue that should not be able to have access to content delivery mechanisms that are not available to Wal-Mart, even though the scope of each site is quite different. I get accused of setting up straw men, as with the second commenter, but neither the NPRM nor the legislation spell out specific methods of discriminatory routing that would be permitted or banned.

  • Tim Lee

    neither the NPRM nor the legislation spell out specific methods of discriminatory routing that would be permitted or banned.

    Completely agree, but the key word here is “routing,” isn't it? The NPRM and the legislation are vague about a lot of things, but one thing I think they're pretty clear about is that they govern ISPs (e.g. companies that own and manage physical networks), not other kinds of companies. BitTorrent is clearly not an ISP (e.g. it doesn't offer TCP/IP connectivity to the public) and so nothing it might do could be plausibly construed as violating network neutrality as the concept is typically defined.

    I don't mean to nitpick about this, but I really think it's important that we represent the views of our ideological opponents accurately. There absolutely are grey areas in the concept of NN, and we should point those out as a reason to oppose regulation. But I think we weaken our argument if we claim as potential network neutrality violations activities that plainly don't meet the generally accepted definition.

  • steventitch

    Point taken. And, no, network neutrality proponents do not say BitTorrent is an NN violation, because, as you say, BitTorrent is not an ISP. But the question I pose is what if BitTorrent were acquired by an ISP? Would that change the FCC's attitude? To me the existence of the BitTorrent protocol, along with other CDN services,make it arguable that the neutral network concept that net neutrality policy seeks to “preserve” no longer exists–and there are viable businesses making money out of improving on “best effort.” That makes placing line-of-business restrictions on ISPs all the more problematic.

  • john

    You don't have to pay BitTorrent Inc. to use the protocol.

    And Akami, paid peering, etc, don't involve prioritization in the last mile, so they don't have anything to do with net neutrality. They don't really involve “prioritization” at all, being based on physics and not fiddling.

  • Tim Lee

    But the question I pose is what if BitTorrent were acquired by an ISP? Would that change the FCC's attitude?

    Well, again, the key concept is “discriminatory routing.” If Comcast purchased BitTorrent and BitTorrent continued doing what it does today—distribute software that runs on end-users' computers—I don't see how that could be construed as a NN violation. BitTorrent doesn't control any routers today and it wouldn't control routers if it were owned by an ISP.

    If Comcast bought BitTorrent and then re-configured their routers to give preferential treatment to BT packets, then obviously that would be a NN violation. But that has nothing to do with BT in particular; Comcast could do the same thing with any Internet software vendor.

    To me the existence of the BitTorrent protocol, along with other CDN services,make it arguable that the neutral network concept that net neutrality policy seeks to “preserve” no longer exists.

    I don't mean to hector you, but I really think this is wrong. The Internet really does operate in a manner that's consistent with the concept of network neutrality, and that's not a bad thing. Again, I go into this in some detail in my Cato paper, explaining how CDNs work and why they don't violate network neutrality as that term is commonly used. The same argument applies with even greater force to protocols like BitTorrent.

  • Net admin

    If Tim's right and net neutrality means neutrality in routing, then Comcast still didn't violate net neutrality. Comcast's management practice was not router-based. Comcast's management practice involved the sending of phony TCP-resets to the two hosts involved in the P2P transaction. This has nothing to do with packet routing.

  • Tim Lee

    You can't do what Comcast did without eavesdropping on the traffic, which as a practical matter you can only do if you run the routers.

  • cryptozoologist

    i think the exact nature of the interference perpetrated by comcast is less important than recognizing it as flagrant censorship and a violation of their customer's terms of service. in any event they violated (tcp/ip) protocol.

  • Net admin

    Tim, you seem to be loosening your definition of net neutrality. In one of your responses to Steve you said “the question is whether the speed-up is accomplished by discriminatory routing policies.” Now you seem to be saying anything that might be done by an entity that runs routers is potentially a net neutrality violation, even if it has nothing to with routing. In Comcast's case, they replicated the upstream traffic passing through the CMTS (which is sort of a router) and sent the copy to an out-of-line Sandvine box.They then examined header information and applied their discriminatory policy so as to generate the controversial reset packets.

    I think this pretty clearly is a net neutrality violation. And I think it shows that net neutrality violations are not limited to discriminatory routing. They potentially involve any practices that unfairly interfere with the transmission requests of Internet hosts. The trick is to figure out what's “unfair.” If you try to simplify the concept and limit it to “discriminatory routing,” you are way underinclusive.

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  • Brett Glass

    The article above fails to note the most serious problem with BitTorrent. Even if it's used legally (which is rare), it is used to transfer costs from content providers to ISPs, multiplying them in the process. See my talk at

  • Brett Glass

    The article above fails to note the most serious problem with BitTorrent. Even if it's used legally (which is rare), it is used to transfer costs from content providers to ISPs, multiplying them in the process. See my talk at

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