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IMO, IANAL

> -> meaning that a court order can change Net Neutrality, hmmm ok.

It would be weird for a court to order anyone to break net neutrality.

> -> meaning that in order to guarantee the security of the network Net Neutrality may be avoided. I'm so-so on this one.

The intention here seems to be to allow (D)DOS attack mitigation etc.

> -> Meaning that ISPs can throttle specific categories of traffic at their own will.

Note that the law is very clear that this only is allowed "provided that equivalent categories of traffic are treated equally."

"Comcast video streaming service is not in the same category as Netflix, Hulu because...."

Back to square 1.

Nope; that would simply be challenged in court.

However, choosing to throttle video content in general to promote their cable service would probably be allowed under this ruling. I don't know if that possibility is serious enough to worry about though.

I wonder even about that, given that it's stated that it can be done only under exceptional and temporary conditions of congestion. The regulator should probably act if it were the general practice instead.

But yeah, the public will need to stay vigilant over how national regulators implement this ruling case by case.

From my understanding it looks more like: "We are streaming the Olympics and its transferring 2TB/s of data, we need to route this differently!". But then again, loopholes are loopholes, and it will be just a matter of time until it will be abused.

Sry, could you clarify, what looks more like rerouting a large download?? Anyhow, allowing traffic shaping in congestion control is not a network neutrality loophole in itself, but ofc any regulation depends on the regulator.

Really, who is going to challenge the difference between Netflix and torrents.

Both video. Both serve the end user in the same way.

But nobody will challenge it because nobody is in charge of torrents.

This kills neutrality completely. There is no way those ruling over this know where to draw the category lines properly.

torrents are more general than netflix, so it's not the same category

That's exactly my point though.

It's not the same category, but it IS a competing service playing on an unfair playing field.

Leveling the playing field for people playing the same game is all fine and dandy, but it completely fucks over disruptive innovations challenging the status quo in a different category.

How about this one, people watch less TV than they did ten years ago, a lot of that time is now spent using Facebook, what happens when Facebook isn't throttled but Netflix and the rest in their category are?

This isn't net neutrality in the slightest.

> It's not the same category, but it IS a competing service playing on an unfair playing field.

It really isn't. Netflix isn't a protocol, and if you're using torrents as a drop in replacement for Netflix you're breaking copyright law in any case. You can't argue that you use torrents as a competing service without implying you're breaking the law.

That's not illegal in all European countries though so it's potentially a valid argument.

copyright law is in fact harmonized on EU level, by the EU copyright directive. Not that it could be substantially different already by Berne convention on a global level.

Curiously enough, Switzerland is one of the two european countries where making a copy of a copyrighted work for private use is not illegal.

hmm, wiki mentiones that private copies are actually usually allowed in the EU, with the exception of the UK, and a regular reason given for blank media levies many countries have. But that's rather different from online distribution of one's copies.

I think they have some notion of "commercial scale" filesharing to prosecute things like pirate bay, not sure how that works legally. But that too is a different matter, as they don't even share any copies of anything, just metadata, and lately not even that, but merely links.

The real question is whether any of this has any relevance for "pirated" media streaming or downloading being actually legal; not tolerated or thought too minor to warrant the privacy violation of revealing the person behind the IP or any loophole like that, but actually legal.

Honestly, I'd love to hear more about this.

Switzerland is not a member of the EU.

That's kind of irrelevant. I was simply using torrents as an example.

The problem with the category thing is that it makes your passtime more important than my passtime. And suddenly the passtime that pays the most is going to get preferential treatment.

This hurts innovation and companies that want to disrupt current services with a different verticle.

Category based throttling sounds like a good idea but it simply is not neutral and will fail us.

Well for one, torrent's not a video format. Let alone a streaming video service.

And anyhow, FCC did exactly that; they went after Comcast for throttling torrents for no reason. And throttling torrents just because they're torrents is clearly not permissable by this clause by BEREC either; all it allows for is temporary and exceptional traffic shaping in case of congestion, provided it's done nondiscriminatorily. Which is a good thing; an ISP needs to have a neutral course of action available then besides a meltdown of its net. And yeah, I'd say latency insensitive bulk downloads would be perfectly sensible to deprioritize then. Now, doing what's reserved for recovery in general instead is certainly an abuse of network neutrality, by this rulebook as by FCCs.

That sounds fine, until you realise there is always congestion at prime time.

Suddenly, you've got throttling allowed against one person's service and not another, because "categories".

This is not neutral.

prime-time congestion is hardly exceptional then, so that shouldn't qualify.

> Note that the law is very clear that this only is allowed "provided that equivalent categories of traffic are treated equally."

They can, for instance, slow down P2P traffic. What do you think about that?

comcast could in the US, and won in court. Despite US regulation being seen as quite robust.

By this text, they'd need to show it was an exceptional and temporary necessity to deal with congestion.

If you are talking about the case from 5ish years ago, that was because the court struck down the entire basis for net neutrality. The net neutrality rules themselves didn't allow for blocking p2p.

yeah, that's the case. Could you clarify? I'm just seeing old articles claiming the last court verdict on the matter was that the FCC overstepped its authority in that particular case? Did some case or law change this? But yeah, hard to see how discriminating a particular protocol w/o cause could be network neutral.

Sure. There was a new FCC ruling that based it's decision on a much more legally sound law.

The FCC is allowed to regulate telecommunication services strictly. Right now it takes a sort of a hands off approach, but they have broad authority to make rules. Before 2015, the FCC considered ISPs to be "information services" instead of "telecommunication services." So the first time the FCC proposed net neutrality rules, it tried to apply them under the "information services" framework.

The Court in 2010 (I think) found that the FCC didn't have the power to regulate "information services" so harshly. So the court canceled their net neutrality rules.

So last year the FCC reclassified ISPs as telecommunication services. Since they are allowed to harshly regulate those services, it's considered very likely to upheld by the court this time.

The only chance it gets struck down is if the court thinks the FCC was clearly wrong about ISPs being a telecommunication service. But the law is pretty clear that are. But I think some ISPs are still fighting it.

That sounds like a horrible thing now that there is movement towards distributed systems like the block chain.

I think there should be some regulation that guarantees provider competition so that consumers could take their stand on issues like this.

A legislative act is not an act of the court - that'd be a judicial act - but of the parliament ie a law; that's the legislative body. Ofc a regulation needs to comply with laws; how else is a legal state supposed to work? And afaik traffic shaping done in a content-neutral way is network neutral; for it favors no particular provider. "Provided that equivalent categories of traffic are treated equally" is quite limiting.

any thoughts on Obama handing over the DNS directory to the UN on Oct. 1st?

I don't think "of exceptional or temporary network congestion..." means "at will".

Recital 15, attached to the article 3(3)c, goes to great length defining what exceptional means, that such traffic may be managed, temporarily, only if it was unpredictable, unavoidable, and short duration, or it damages network reactivity. It clearly states that such management is not a replacement for upgrading bandwidth, both mobile and fixed. And even then they cannot prejudice specific traffic, just an entire class of it, again, only temporarily.

Yes, this!

The recitals are awesome! I wish USAmerica would use this type of exposition in their legalese.

Hm, this is all I found so far about the practice: https://web.archive.org/web/20130622043635/http://eur-lex.eu...

Here is some more text, from directly below what you pasted.

    Recital 15
    ==========
    
    Third, measures going beyond such reasonable traffic management
    measures might also be necessary to prevent impending network
    congestion, that is, situations where congestion is about to
    materialise, and to mitigate the effects of network congestion, where
    such congestion occurs only temporarily or in exceptional
    circumstances. The principle of proportionality requires that traffic
    management measures based on that exception treat equivalent
    categories of traffic equally.  Temporary congestion should be
    understood as referring to specific situations of short duration,
    where a sudden increase in the number of users in addition to the
    regular users, or a sudden increase in demand for specific content,
    applications or services, may overflow the transmission capacity of
    some elements of the network and make the rest of the network less
    reactive. Temporary congestion might occur especially in mobile
    networks, which are subject to more variable conditions, such as
    physical obstructions, lower indoor coverage, or a variable number of
    active users with changing location. While it may be predictable that
    such temporary congestion might occur from time to time at certain
    points in the network – such that it cannot be regarded as exceptional
    – it might not recur so often or for such extensive periods that a
    capacity expansion would be economically justified.  Exceptional
    congestion should be understood as referring to unpredictable and
    unavoidable situations of congestion, both in mobile and fixed
    networks. Possible causes of those situations include a technical
    failure such as a service outage due to broken cables or other
    infrastructure elements, unexpected changes in routing of traffic or
    large increases in network traffic due to emergency or other
    situations beyond the control of providers of internet access
    services. Such congestion problems are likely to be infrequent but may
    be severe, and are not necessarily of short duration. The need to
    apply traffic management measures going beyond the reasonable traffic
    management measures in order to prevent or mitigate the effects of
    temporary or exceptional network congestion should not give providers
    of internet access services the possibility to circumvent the general
    prohibition on blocking, slowing down, altering, restricting,
    interfering with, degrading or discriminating between specific
    content, applications or services, or specific categories
    thereof. Recurrent and more long-lasting network congestion which is
    neither exceptional nor temporary should not benefit from that
    exception but should rather be tackled through expansion of network
    capacity.

Congestion control and QoS are crucial parts necessary for network reliability and the functioning of low latency services though. How would one even formulate a law that doesn't have loopholes w.r.t. to those?

Core networks do not use QoS or congestion control in the traditional sense, as they are designed to be run without congestion in normal circumstances and because QoS is too expensive compared to adding more capacity.