[brudgers]

A plausible case can be made for charging Google based on the amount of traffic generated by their products which is initialized outside of the subscriber's control.

The ISP is delivering advertising from which Google benefits and which its users are not explicitly requesting. Charging Google is analogous to a cable provider charging an advertising agency when that agency wants to place ads on behalf of their clients.

Other Google services such as Analytics, tracking cookies, and JavaScript libraries also use capacity without considering the effect on the provider's bandwidth.

Again, this is a plausible position. It is plausible because Google is generating revenue regardless of the ISP's customers' interest and the source of the data is outside the ISP's network.

Charging Google is a reasonable alternative to charging their customers for something which may be of little value to them.

[rryan]

I disagree. A user requesting http://example.com is that user requesting everything that the webmaster of example.com wanted example.com to include. This includes ads.

The webmaster has decided that the content hosted on http://example.com includes some HTML, some off-site resources (maybe images hosted on a CDN, maybe some ads, maybe some Javascript hosted elsewhere).

Are you going to charge CDN owners too given the user doesn't 'know' that websites often use a CDN to host their content? What about jquery.com for hosting the version of jquery the site uses (if they don't host it themselves)?

Why are ads special? Simply because the webmaster is being paid by the ad network? In the CDN case, money flows in the opposite direction -- the webmaster pays the CDN. Why shouldn't the ISP take a cut of that transaction too?

If a website has ads the implied contract is that you get access to this content in exchange for having these ads on the screen. Why does an ISP get to take a cut out of that agreement between the webmaster, the ad network, and the user? They are already compensated by the user to deliver all the bytes the user's computer requested to them.

If an ISP is unhappy with how many bytes the user is requesting, and how many of those bytes come from a particular source (e.g. Google) then they need to renegotiate their contract with the user.

[brudgers]

Advertising is just the most obvious example of something which other networks - such as cable television - charge the content provider to deliver to their customers.

I am not a lawyer, but the implied contract argument doesn't seem to hold water. Google and the ISP aren't in privity - unless of course there is a contract between them such as the article provides. I'll leave aside the applicability of common law principles to France in regard to the theory of implied contracts required as a premise to the argument.