The first problem is that Jon Peha did not understand the multi-stream aspect of BitTorrent or P2P. Peha seemed very surprised immediately before our panel at Stanford when I told him that a P2P download typically used 10 to 30 TCP streams at the same time. His surprised reply to me was “all active?” and I replied yes. The reality is that if a certain percentage of BitTorrent TCP streams are reset and temporarily blocked by an ISP, say 15% for example, then the “Torrent” (the file that’s being exchanged amongst multiple peers over the BitTorrent protocol) is essentially slowed down by an average of 15%. In other words, the “Torrent” would suffer a 15% partial blockage which is accurately described as a “delay” since the file transfer didn’t actually stop. This would be like filling up a bath tub with 20 faucets and you closed 3 of those faucets. The rate of water flowing in to the tub would slow but not stop.
The second key problem with Topolski’s testimony is that to my knowledge, he has never provided any forensic data from Comcast in the form of packet captures that can be independently analyzed. Even if Topolski did produce packet captures and we assumed that those packet captures are authentic, one man’s packet captures wouldn’t be a large enough sample to draw any conclusions by any legal or scientific standards. The Vuze data may constitute a large enough sample but the data isn’t very granular because it doesn’t tell us what percentage of reset TCP sessions are due to an ISP versus other possible sources