John Hart of San Francisco filed a class action asserting breach of contract, breach of the covenant of good faith and fair dealing and violations of both California’s business and professions code and the state’s Consumer Legal Remedies Act.
Adult industry attorney Rob Apgood told XBIZ that the main concern for adult webmasters and business owners observing the situation involves Comcast’s transparency — or lack thereof.
“What else [is Comcast] doing that they are not disclosing — that’s the question,” Apgood said. “It’s their network, and to a certain extent they can do what they like with it, but to take this sort of action without the knowledge and consent of their customers and others with whom they are bound by contract is a real concern.”
The lawsuit followed a report by the Associated Press in October that Comcast was actively interfering with attempts by its high-speed Internet subscribers to share files online.
At the time, Comcast issued a statement denying that it was blocking peer-to-peer file sharing, or any other manner of website.
“Comcast does not, has not, and will not block any websites or online applications, including peer-to-peer services,” Comcast said in a statement released in October.
Replicating the AP’s testing, the Electronic Frontier Foundation and other industry analysts confirmed that Comcast had been engaged in slowing down P2P file transfers, by forging Transmission Control Protocol Reset (TCP RST) packets that cause connections to drop before the file transfer in question has been completed.
The forged data packets “cause software at both ends to believe, mistakenly, that the software on the other side doesn’t want to continue communicating,” according to the EFF.
In information posted to its online FAQ, Comcast further detailed its protocols with respect to P2P traffic — statements in which the company continued to deny blocking P2P traffic, but admitted that it does delay some P2P file transmissions.
“We never prevent peer-to-peer activity or block access to any peer-to-peer applications, but rather manage the network in such a way that this activity does not degrade the broadband experience for other users,” the company said in its FAQ.
“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 you can continue to enjoy these applications. Peer-to-peer activity consumes a disproportionately large amount of network resources, and therefore poses the biggest challenge to maintaining a good broadband experience for all users, including the overwhelming majority of our customers who do not use peer-to-peer applications.”
In his lawsuit, Hart alleged that whatever Comcast is doing with respect to P2P traffic, the interference runs counter to the company’s marketing claims — and the terms of its service agreement.
“Defendants advertise, market and sell their high speed Internet service … based on claims of ‘lightning fast’ and ‘mind-blowing’ speeds,” Hart said in the lawsuit. “Defendants further promise their customers and prospective customers that they will have ‘unfettered access to all the internet has to offer.’ Nevertheless, defendants intentionally and severely impede the use of certain internet applications by their customers, slowing such applications to a mere crawl or stopping them altogether.”
Through his class action, Hart hopes to end Comcast’s practice of interfering with P2P traffic and seeks recovery of fees paid by Comcast customers, whom Hart asserted have “paid for services they did not receive.”
While Comcast said that the interference with P2P traffic is done to manage its network and ensure a positive online experience for all its subscribers, Hart asserted in his lawsuit that the company provides no indication in contracts or service agreements that it interferes with P2P or any other manner of online file.
“Defendants have numerous different terms of service and/or use posted on their website,” Hart stated in the lawsuit. “Significantly, none of the terms of service state that Comcast can or will impede, limit, discontinue, block or otherwise impair or treat differently the blocked [P2P] applications.”
In related news, Vuze.com, which described itself as a “rapidly growing open entertainment platform for professionally produced content with an established audience of more than 12 million users,” has petitioned the Federal Communications Commission to adopt new regulations to prevent network operators from engaging in the manner of P2P interference alleged in Hart’s lawsuit.
“At issue is whether unrestricted ‘throttling,’ often characterized by ISPs as ‘network management’ or ‘traffic shaping,’ which materially interferes with the consumer Internet experience, should be allowed,” Vuze stated in a press release. “If these tactics continue unchecked, the openness and fairness of the public Internet could be called into question.”
Gilles BianRosa, CEO of Vuze, argued that “now is the time to embrace the sea changes in entertainment consumption that are occurring.”
“The rapid convergence of the entertainment and Internet industries has enabled the delivery of high-quality video, and these throttling tactics represent growing pains as ISPs resist inevitable change,” BianRosa said. “We hope our petition will trigger a public discussion, but we also need the FCC to act. The industry needs transparency into what ISPs are doing and an environment that fosters innovation in online entertainment.”
BianRosa argued that ISPs should seek to adapt to the changes in online distribution methods, rather than “resisting changes in Internet usage with counterproductive and arbitrary traffic throttling.”
