Netflix's Battle For Net Neutrality Could Look Like This

The Netflix Inc. website is displayed on laptop computers arranged for a photograph in Washington, D.C., U.S., on Tuesday, Ja
The Netflix Inc. website is displayed on laptop computers arranged for a photograph in Washington, D.C., U.S., on Tuesday, Jan. 21, 2014. Netflix Inc., the largest subscription streaming service, is expected to release earnings data on Jan. 22. Photographer: Andrew Harrer/Bloomberg via Getty Images

If the war over net neutrality is going to be fought in the court of public opinion, as Netflix suggested last week, then the company could learn a lot from one of its most pernicious rivals: BitTorrent.

Netflix said in a warning to investors that if Internet service providers (ISPs) started slowing down its streaming thanks to a recent federal court ruling knocking down net neutrality, the company would rally its members to "demand the open Internet they are paying their ISP to deliver."

The ruling allows ISPs to legally discriminate against some websites and services. In other words, it could mean no more binge watching our favorite shows on the streaming service -- and maybe not getting to use Netflix at all.

That's something BitTorrent knows a lot about.

In 2007, Comcast began aggressively throttling, or slowing down, BitTorrent traffic. The peer-to-peer protocol lets people transfer large files without storing them anywhere, and is used to share everything from patches for games like World of Warcraft to pirated content like just-released movies. Comcast started targeting BitTorrent, blocking uploads of complete files and in some cases even masquerading as BitTorrent users, supposedly to prevent congestion. BitTorrent's user base fought back by investigating Comcast's throttling techniques, confronting Comcast spokespeople and distributing fixes for those who still wanted to use BitTorrent at full speed.

"The fact that so many people spoke out against Comcast's behavior helped the company to realize that what they were doing wasn't right," says BitTorrent advocate and TorrentFreak editor Ernesto Van Der Sar.

After the Associated Press independently confirmed that Comcast was throttling BitTorrent traffic, "there were suddenly many interested parties in the debate," says BitTorrent Inc. CEO Eric Klinker, who spoke to The Huffington Post about BitTorrent's reaction to Comcast's tactics. BitTorrent users led the charge against Comcast, filing complaints with the FCC "with the clear intent of seeking regulatory relief from that practice," says Klinker. In 2008, the FCC ordered Comcast to stop interfering with peer-to-peer traffic.

Elated and seeking vengeance, BitTorrent users followed up after the FCC's decision by suing Comcast, eventually forcing Comcast to start a $16 million fund to compensate affected BitTorrent users.

The entire affair was a debacle for Comcast and should have sent a clear signal to typically hated ISPs not to mess with services that bring people beloved movies and TV shows.

Still, there's really no indication Netflix users would react to throttling the same way BitTorrent fans did. BitTorrent users are notoriously tech-savvy and loyal; Netflix users, in contrast, exhibit what analysts at innovation research firm GfK call a "softness" to their loyalty -- a willingness to switch brands should Netflix experience a crisis or a more convenient competitor emerge.

In 2007, BitTorrent was a privately held company, "a 40 person startup in San Francisco," says Klinker. (Today, BitTorrent employs 110 people.) Netflix, by contrast, is currently pulling in more than $3 billion in revenue and employs a whopping 2,045 people, according to its latest annual report. Klinker mentions that Netflix could, if it wanted, cut deals with telecom providers, implement technical solutions, or go toe to toe with Big Cable in the lobbying arena -- all without having to rely on consumer vigilantism to save its business.

ISPs like Comcast have rationalized throttling sites in the past by saying they take up too much bandwidth, and Klinker notes that Netflix could take a page from BitTorrent's book in this area too. In 2008, after Comcast admitted to throttling BitTorrent traffic and blamed BitTorrent for causing congestion, BitTorrent Inc. implemented several technical fixes to ensure torrents didn't use an undue amount of bandwidth.

Klinker says there are several things Netflix could do to decrease its bandwidth usage, from allowing downloads to better caching.

But even if Netflix or its users do go to war for the video streaming service, there may be precious little anyone can do to stop ISPs from throttling content now that net neutrality's gone. After all, the BitTorrent v. Comcast dispute was resolved when the FCC cited Comcast for breaking net neutrality rules -- but with net neutrality down for the count, Netflix can't count on the government to step in on its side.

This story has been updated with additional comments from BitTorrent CEO Eric Klinker.