Seems to me that the conflation argument is a bit beside the point, because congestion is largely a red herring. And copyright is a just convenient way to win support from the content folks. The issue is that pipe owners are increasingly content and application providers, too, and want the right to provide those at higher levels of service than competitors’ offerings.

VOIP is the best example: I now have comcast’s triple play, and the VOIP I have is much better than when I had separate ISP and VOIP providers. Coincidence? I doubt it. Yet there are plenty of powerful people who dont see this as discrimination, but free enterprise, especially since it’s hard to prove that the reason isn’t degradation but better technology.

The net neutrality forces keep stalling out because they have not put forth a winning response to this that doesn’t involve some fairly significant regulatory machinations. You can talk about imposing minimum service-level requirements on ISPs for app vendors, etc., but it’s just not very clean. And we havent even talked about enforcement.

I am confident we will see more and more examples of discrimination, but until people in power can see an answer that doesnt look like common carrier rules, nothing will change IMHO.

As Google often says, this dynamic owes largely to the pipe duopoly (increasingly at the backbone level, too). Which is why I think the only chance for real change is a third type of pipe (wireless, BPL, satellite, whatever) that is truly viable, widespread and competitive. Then there might be enough choices that businesses and consumers can vote with their feet.

I lost you there. As far as I know, technical network management has never been restricted. The Brand X case was about pricing and access.

Allow me to address your original question: should ISPs have liberty to unilaterally engage in traffic shaping to deal with network constraints.

1) It is important to recognize the dangers associated with giving ISPs such authority as it is to recognize the benefits. I think it was Jon Peha from Carnegie Mellon who observed that no policy that limited ISPs could capture all the benefits while no policy that gave ISPs complete freedom could ignore all the dangers, so it is a question of acceptable trade offs.

2) There are a wide variety of approaches that address the problem you cite (bandwidth constraints and protecting certain types of applications) without giving ISPs the authority to unilaterally shape traffic. These are not necessarily as efficient for some purposes as letting ISPs shape traffic, but they may represent a better trade off betwen the harms of ISP control over traffic and the failure of certain applications.

Here’s my list:

a) Until we eliminated the restrictions on carriers shaping traffic in 2005, ISPs did not have the right to traffic shape and we got in in a variety of ways. Either we accepted that certain functions (like voice) needed to adapt to the “best efforts” environment (and therefore stayed on the network optimized for voice, just as video stayed on the networks optimized for video) or people got clever and proposed edge-based QoS solutions. As a result, folks developed all manner of clever solutions to the problem of how to move content better and faster. This gave us caching (Akami, others), peer-2-peer (BitTorrent is popular because it makes it possible to move big files, which people WANT to move), virtual private networks, and a host of other possibilities.

b) Alternatively, we could let the USER decide on how to optimize bandwidth by providing incentives to increase efficiency and set priorities. The crudest means of doing
this are to set bandwidth caps or revert to metered pricing.

More intelligently, you can let customers pay for services like Comcast’s power boost, which take excess capacity as available and let you apply it to specific users or applications.

Even better, we can let users decide how to
shape their own traffic. For example, rather than let Comcast decide to favor VOIP over BitTorrent globally, we could tell end users “you have a 5 GB/week cap.” In addition, you are limited in your throughput to 3 MBPS. But, if you choose to set certain traffic on “interruptible” or “delay”, you can get “bonus capacity.” Or you can get bonus capacity when the system signals you additional capacity is available.

Which leads to my final point. The very idea of traffic control is that you have to give the ISP the power to decide what is best. But wouldn’t it actually MAXIMIZE network efficiency to treat capacity as a spot market and let users decide? This does not require any great sophistication (assuming the right software). Furthermore, because we keep hearing that it is a relatively few number of sophisticated “bandwidth hogs” that are causing all the heartburn, altering the incentives of these few highly sophisticated actors to change their behaviors will have a substantial global effect.

But the Telcos and Cable Cos do not like this choice, because they want to own the customer.

1) Are you seriously saying that a time-sensitive VOIP packet should be treated with exactly the same priority as a file-sharing packet? Application discrimination is NECESSARY. Because anything else will have file-sharing killing VOIP and gaming.

2) The Internet is already under such a business model. The people pretending otherwise are conflating (sometimes deliberately, sometimes ignorantly), quality-of-service with price discrimination.

Do you believe it would be better to have an armed every-man-for-himself populace than a police force, because the law of the jungle is better than government which will have an incentive to enslave everyone because it benefits from fear and terror? (I’ve seen some Libertarians argue this seriously!) . That’s the type of ultra-extreme argument which is being made.