Witness Testimony
Mr. Martin C. Lafferty
Chief Executive Officer
Distributed Computing Industry Association
4200 Wilson Boulevard, Suite 800
Arlington, VA, 22203
Online Pornography: Closing the Doors on Pervasive Smut.
Subcommittee on Commerce, Trade, and Consumer Protection
May 6, 2004
10:00 AM
Chairman Stearns and Members of the Subcommittee, thank you for the
opportunity to testify at this hearing. The Distributed Computing Industry
Association (DCIA) is a trade organization, established in July 2003, for the
purpose of commercially developing peer-to-peer file sharing and more advanced
distributed computing applications for legitimate purposes. Our charter calls
for representative membership among content providers, software suppliers, and
platform companies. We currently have fifteen (15) members (listed
alphabetically with links to their websites on the Join page at www.dcia.info)
and are actively recruiting to expand our balanced and solutions-focused
membership.
(1) The Internet is of immense value to society, particularly through its
evolving and increasingly varied and decentralized usage as a tool for
productivity, enabling exponentially faster and lower-cost means for connecting
individuals globally, facilitating the exchange of all types of data, and
creating a radically more efficient marketplace for commercial transactions. As
with prior great communications inventions, Internet technology is neutral -
facilitating communication without regard to whether content, or a transaction
itself, may be deemed legal or illegal. Peer-to-peer file sharing, one of the
newest advances of the Internet, is accomplished by client software search
engines, returning queries from file directories, replacing costly and
relatively slow centralized servers for both discovery and delivery of content,
with an infinitely scalable number of participating PCs.
(2) Some content rights holders in the entertainment industries have failed
to stay current with technology advancements, and not taken reasonable
precautions to protect their products from unauthorized copying and online
redistribution. They have confused the public by selectively enforcing their
rights, and have boycotted prospective and willing new distributors rather than
licensing them. In the absence of their broadly authorizing mainstream content
online and labeling it to protect users from inadvertent exposure to
inappropriate material, as in offline media, the Internet overall has attracted
a disproportionate amount of pornographic content, and adequate safeguards to
consumers are for the most part not yet being provided.
(3) Many computer users believe that the content they encounter on the
Internet has been licensed and authorized as in other media that they routinely
use such as television, radio, online subscription services, and various
recording and playback devices. In Congressional hearings, computer users who
have been sued by the record industry for alleged copyright infringement
associated with online music redistribution, for example, have testified that
they felt abused, prompting at least one US parent to sue the RIAA under RICO
laws. Pornography on the Internet was initially limited by low bandwidth and
limited sources. Those restrictions disappeared as modem speeds increased,
broadband services proliferated, and pornography websites and chat-rooms
multiplied. It has been challenging for Congress to balance consumer protection
from undesired exposure with First Amendment rights issues. Credit-card routines
intended to keep under-age users from accessing commercial pornography, for
instance, have unfortunately proven easy to circumvent.
(4) More broadly, the dissemination of pornography, ranging from legal adult
material to criminally obscene content, including the most pernicious category
of child pornography, is facilitated online by such increasingly sophisticated
electronic means as Internet browsers, search engines, e-mail, instant
messaging, websites, peer-to-peer software, chat-rooms, and news groups, which
technologies are now used regularly by tens of millions of US citizens.
(5) Such trafficking in pornography creates new challenges for content rights
holders, computer manufacturers, software developers, and Internet service
providers, to help protect minors from inadvertent exposure to such material
online, and to educate the public, deter potential abusers, and enforce laws
against dissemination of illegal material.
(6) In light of these considerations, responsible content providers and
legitimate technology companies have an increasing opportunity to collaborate to
protect consumers from inadvertent exposure to undesirable and illegal content,
through appropriate and applicable technical solutions, business practices, and
educational programs. All stakeholders should be encouraged to explore such
measures in good faith as well as adopting business models for legitimate
content to be digitally distributed.
(7) With the increasingly decentralized topology of the Internet, users
themselves, including consumers of pornography, now serve frequently as the
sources of content being entered into distribution, as well as being the
recipients of it. Therefore, unfortunately, it is not remarkable that
pornography is being distributed through many online technologies. As this
activity has grown, it has become more difficult to obtain accurate data as to
exact quantities and the precise nature of such content. Nevertheless, the
following studies and reports demonstrate salient facts regarding such
pornography on the Internet: (A) April 2004 reports from Websense, Nilesen/NetRatings,
BigChampagne, and WebSpins indicate that pornography websites have increased
seventeen-fold (17X) from eighty-eight thousand (88,000) in 2000 to nearly
one-million six-hundred thousand (1,600,000) today; thirty-four million
(34,000,000) people or about one-in-four US Internet users visit them monthly,
and thirty-seven percent (37%) have visited a porn-site at work; approximately
four and one-half percent (4.5%) of downloaded peer-to-peer content is
pornographic images, while approximately nineteen and three-tenths of a percent
(19.3%) is pornographic videos. (B) A November 2003 supplemental report from the
General Accounting Office (GAO) to the Senate Judiciary Committee stated that
the risks of inadvertent exposure to pornographic content using peer-to-peer
file-sharing software are no greater than those posed by other uses of the
Internet (such as browsers, e-mail applications, instant messaging, websites,
chat-rooms, news groups, or commercial search engines). Some 840 instances of
reported child pornography were attributed to peer-to-peer software usage out of
a 62,000 yearly total. 45,035 were on the Web, 12,043 were by e-mail, and 1,128
were on Usenet bulletin boards. (C) According to the National Center for Missing
and Exploited Children (NCMEC), reported child pornography on peer-to-peer was
down from 2% in 2002 to 1.4% in 2003, with the vast majority of the remaining
98%+ coming from websites and chat-rooms. (D) Further, as confirmed by DCIA
member reports, unlike websites, there is no commercial child pornography
distributed by means of peer-to-peer applications.
(8) Thus, while the use of file sharing software for the distribution of
pornography is regrettable, it is less of a problem than activity in many other
online environments. Finally, the leading file-sharing software suppliers
provide tools enabling parents to protect their children from exposure to
undesirable content. Users can choose options to block adult content, which is
the default setting, add more keywords to be blocked, prevent all video and
images from being downloaded, and password-protect their filter settings. While
parental controls designed for search engines and other Internet applications,
or distributed as stand-alone programs, may not automatically work with
peer-to-peer software applications, the customized filtering solutions that have
been incorporated in the leading file-sharing software programs are unexcelled
in the levels of protection they provide and are setting the standard. Use of
these tools and monitoring of use by parents and custodians must remain the
primary protection of children from inappropriate Internet content.
(9) Beyond the provision of parental control tools, leading peer-to-peer
software companies have also worked cooperatively and proactively with law
enforcement agencies on programs to facilitate prosecution of abusers of their
technology, who attempt to distribute criminally obscene content. It should soon
become apparent to distributors of such material that sharing it via
peer-to-peer public folders is the best way to expose themselves to
identification and prosecution. Leading peer-to-peer software companies are also
working voluntarily on deterrence and education programs to further combat child
pornography before enforcement actions are necessary. The DCIA, for example, is
focusing its resources on a collaborative program to enable peer-to-peer users
to recognize, report, and remove criminally obscene content from their
computers.
(10) While no amount of child pornography can be tolerated, the charge made
by entertainment interests that peer-to-peer software exposes even children
conducting unfiltered searches to a greater amount of pornography than those
using an unfiltered Internet search engine is unsupported by evidence.
Furthermore, in contradiction to these disingenuous allegations, using family
filters included with leading peer-to-peer software applications set at the
maximum level, in direct refutation of specific entertainment industry
allegations, no files retrieved on searches for popular terms like
"Britney", "Pokemon", and "Olsen Twins," will
contain pornography, child pornography, or child erotica. By contrast, searching
on these same terms using unfiltered search engines will yield many thousands of
pornographic and criminally obscene results.
(11) Entertainment industry comparisons of relative growth of pornographic
files are also misleading. Their cited peer-to-peer figures typically correspond
to the period of greatest growth in the consumer adoption of peer-to-peer
software and actually represent a more than fifty percent (50%) reduction in the
complaint-to-user ratio. By contrast, websites, chat-rooms, news groups and
bulletin boards, already well established and relatively mature, represented
more than ninety-seven percent (97%) of reported incidents in this period. The
record demonstrates that these issues have been and are being addressed, despite
the greater challenges posed by a decentralized, user-generated file-sharing
environment, resulting in a user experience comparable to, if not better than,
that of surfing the Internet generally. While this concludes comments on the
specific subject of this hearing, the following addresses other issues raised by
the Subcommittee.
(12) The innovative companies developing and distributing publicly accessible
file-sharing software have also responded to other issues identified by Congress
and through self-regulatory processes by making steady improvements. Additional
relevant examples of their commendable track record include the integration of
strong anti-virus software with peer-to-peer file sharing applications, and the
implementation of default settings and procedures to prevent inadvertent sharing
of private or confidential data. Users can flexibly select the frequency of
updating virus definitions; leading peer-to-peer companies promptly alert users
of known attacks; and protected users help shield other users of file-sharing
applications. With respect to safeguarding private information, current leading
peer-to-peer software requires users to take multiple affirmative steps in order
to share files that may include personal data. Peer-to-peer software suppliers
have affirmed their commitment to further reduce risks and enhance both the
safety and value of the user experience on behalf of their consumers and the
public at large.
(13) The DCIA is currently addressing spyware/adware, in part by working with
two DCIA member companies in the Center for Democracy & Technology (CDT) led
Consumer Software Working Group (CSWG) since its inception. The DCIA also
testified at the Federal Trade Commission's workshop in April 2004. At this
event, it was made a matter of public record that leading peer-to-peer
file-sharing suppliers, in addition to integrating powerful anti-virus software,
now also certify that their programs are spyware-free. In addition, these
suppliers offer consumers a choice of paid or ad-supported versions of their
programs, with no pop-up ads appearing in the paid versions. Targeted
advertising in the ad-supported versions collects no personally identifiable
information, provides clear attribution as to its source, and is up to 40 times
more efficient than traditional online advertising, meaning far fewer intrusions
for users. Notifications are provided to consumers pre-installation, at
download, and during operation; and the uninstallation of peer-to-peer programs,
along with any associated advertising software, follows the same standard
add/remove procedure as other legitimate applications. The DCIA readily
acknowledges that more needs to be done to achieve its goal of establishing best
practices in this area, and welcomes the opportunity to also coordinate with
Congress on this issue.
(14) As noted earlier, however, the real obstacle to realization of the full
potential of peer-to-peer technology is the refusal of key content owners to
license their content for legitimate, paid distribution via peer-to-peer file
sharing. In this regard, the DCIA commends the Subcommittee for scheduling a
hearing on HR 107 "The Digital Media Consumers' Rights Act" on May 12,
2004, in contrast to the Judiciary IP Subcommittee's introduction and reporting
in a single day, with no hearing, of HR 4077, a measure that could criminalize
millions of young Americans, given its vague negligence standards, for merely
storing digital music on a networked device. The entertainment industries'
strategy is to combine their refusal to license content with their aggressive
attempt to demonize peer-to-peer technology, in an attempt to crush what they
erroneously view as a threat to their interests. This is the same
time-dishonored strategy they tried in the futile fight against photocopiers,
video recorders, and many other innovations that have brought great benefits
both to consumers and to the companies that at first opposed them. And it is
this which deserves to be the subject of Congressional investigation.
(15) DCIA members alone represent, with an average of 50 million licensed
files now distributed monthly, the largest form of distribution of legally
traded copyrighted music, movies, software, and video games on the Internet.
This is accomplished primarily through agreements with small independent content
suppliers, while the major studios and music labels continue their boycott of
peer-to-peer. Nevertheless, licensed content distribution continues steadily to
increase via peer-to-peer software programs. The challenges presented by digital
content are indeed multifaceted, and no single response is sufficient. But among
the different solutions that have been tried by the major music and movie rights
holders, the most glaring omission is the most obvious one - providing consumers
with legitimate choices in each digital medium, including peer-to-peer.
(16) However, the continuing failure of the major labels and movie studios to
license the peer-to-peer distribution channel exposes these users to potential
lawsuits from the record industry for copyright infringement. This is the only
unique threat that users of these applications face, and Congress should urge
major labels and movie studios to swiftly license their content for all digital
media, including peer-to-peer, in furtherance of the public interest.
(17) The full potential of peer-to-peer technology to benefit consumers has
yet to be realized, and will not be achieved until content rights holders
license their copyrighted works on a non-discriminatory basis for legitimate
distribution by means of file-sharing applications. The ongoing boycott by major
music labels and movie studios poses an increasingly serious threat, causing
substantial damage to consumers, who are being harassed and threatened
unnecessarily with lawsuits; to their shareholders, to whom they are denying a
promising new revenue stream; and to content creators, particularly the
independent labels and filmmakers seeking to monetize their copyrighted works
using peer-to-peer distribution channels. The widespread availability of
unprotected content from the majors severely disadvantages the independents from
competing to sell their products using this most advanced and cost-effective
distribution method.
(18) The companies that develop and distribute peer-to-peer file-sharing
software have made energetic efforts to license content from the major labels
and movies studios, but have been consistently rebuffed, in what may constitute
a collusive refusal to deal. Related to this, a technical amendment to HR 1417,
providing a blanket anti-trust exemption for music in all digital media, was
passed without hearing, resulting in a thousand-fold windfall benefit to record
labels.
(19) The current legitimate digital music marketplace is inadequate to
properly serve consumers. Pricing at now licensed online music stores, for
example, is maintained at artificially high levels so as not to compete with
offline CD sales through an entrenched distribution infrastructure. Online store
technology represents an older generation, less efficient centralized
architecture. The quantity and quality of digital files made available for
online sale are kept low so as not to be competitive with CD sales.
Comparatively few users access these stores and fewer purchase files from them.
The legitimate digital music marketplace needs to be expanded to encompass
current and future technologies, including not only the latest Internet-based
application, peer-to-peer file sharing, but also future technologies, with the
requirement that music rights holders, and copyright holders generally, who wish
to monetize their content in the digital realm, license it on non-discriminatory
terms for all digital media.
(20) Returning to the subject of this hearing, the entertainment industries
are lobbying Congress with claims that file sharing is perilous to children and
that peer-to-peer companies, though they have no control over user actions,
should be responsible for the content of files some users independently share.
At the same time, these entities intentionally and continuously bombard
impressionable children and youth with shameful material. Major labels peddle
hate-filled and reprehensible lyrics condoning, even promoting, criminal
conduct, from drug trafficking and matricide to rape and theft. By their
actions, these companies demonstrate they are motivated by a determination to
protect their revenues and not by any tenderness for the young. Their conduct
goes beyond unclean hands to a pernicious business model that should be reviewed
by Congress as part of its media indecency initiative. Can it be that to
incentivize the creation of a wide range of responsible entertainment we must at
the same time make wealthy those bloodless cynics who shamelessly trade
children's innocence for money and who undermine values such as faithfulness,
work, sacrifice, selflessness, tolerance and self-discipline? Is this what the
framers of the Constitution had in mind when they authorized the creation of
copyright laws?
(21) There can be no doubt that the ultimate motivation for such works is
money. It cannot be supposed that any artist or corporate official has taken on
partner abuse, child abandonment, robbery, date-rape, homicide, or revenge as
social missions that they would pursue absent the lure of dollars. Yes, such
expressions are protected under the First Amendment, but where is the policy
that says we must also facilitate the enrichment of their creators and promoters
by imposing draconian measures on the citizenry? While this last line of
argument takes us beyond the parameters of this hearing, the astonishing
hypocrisy of the entertainment industries in this regard had to be pointed out.
(22) A primary reason the DCIA has felt compelled to comment at such length
is that the entertainment industries' ongoing campaign to destroy the
peer-to-peer software companies and to strangle file-sharing technology has gone
largely unanswered. It is based upon the unproven assertion that labels and
studios are suffering great economic damage through the copyright infringement
of individual users. The DCIA's mission is to develop and promote the legitimate
uses of P2P functionality, and to help foster business models that make
partners, rather than litigants, of content owners, technology companies,
Internet service providers, peer-to-peer software companies, and consumers.
(23) The entertainment industries' continuing emphasis on peer-to-peer
pornography is unreflective of the much greater relative presence of pornography
on the Web, and of the much greater ease of transmitting pornography via e-mail
and instant messaging attachments, not to mention the far greater risks of
criminally obscene content available on websites, and of predatory dangers in
chat-rooms. And it is so dismissive of peer-to-peer providers' efforts to work
with law enforcement and to incorporate parental control software into their
products that it starts to take on the character of a red herring. The
inaccurate pornography charge too, is one of the pillars of the entertainment
companies' platform for destroying the nascent distributed computing industry,
oblivious to the damage wrought by their own intentional and shameful role.
(24) Both copyright infringement and exposure of children to pornography are
real problems, and we condemn them. However, we also encourage Congress to
consider the possibility that the entertainment industries' ceaseless chant of
piracy, and their unbalanced and diversionary claim of pornography, are not such
issues as demand an inexorable tightening of the legislative screws on millions
of Americans, young and old, by an angry Congress on behalf of unworthy
supplicants. Instead, we commend to you the idea that these campaigns, on which
so much money and so many words have been spent, are excuses that serve the
purpose of shielding poor management from investor scrutiny, and of substituting
for a lack of strategic business vision and for a lack of artistic creativity,
and for an inability to learn from the lessons of the past regarding the
development of earlier media distribution technologies.
(25) How much more beneficial and constructive it would be for the United
States and all of its citizens, and for the entertainment companies themselves
and their shareholders, if as the next step in development of the new and
rapidly changing decentralized digital distribution marketplace, Congress were
to adopt an alternative along these lines: "To be effective on the date of
initial publishing of a copyrighted work, any rights holder who wishes to
monetize the digital redistribution of such work on the Internet and otherwise,
shall be required to provide in advance terms and conditions on a
non-discriminatory wholesale basis to all distributors, including software
suppliers and individuals, who may wish to engage in such redistribution."
Once the law has been modified in such a way to ensure that the
"carrot" of legitimate licensed content redistribution can be
supported given the realities of technical advancements now affecting the
topology of the Internet itself, then the "stick" of enforcement could
reasonably be revisited, with more appropriate requirements for commercial
parties who may then be expected to bear increased responsibilities for
protecting the new forms of commerce so enabled. These would logically include
appropriate labeling and warnings for adult content, actions to combat
criminally obscene content, and other measures to fully legitimize online
entertainment distribution.
Thank you for the opportunity to provide this testimony. We would be pleased
to answer your questions and arrange a peer-to-peer technology demonstration at
your convenience.
SUMMARY DCIA is a trade association established 7/03 with 15 current content,
P2P, and platform members. (1) The Internet is a valuable productivity tool but
neutral vis a vis content transfers/transactions. (2) Entertainment companies
have generally failed to keep pace with digital technology advances. (3)
Consumers are confused about what's legitimate in entertainment content they
find online. (4) Pornography is accessible through a variety of Internet
applications used by 10s of millions. (5) This creates challenges for content,
hardware, software, and ISP sectors to protect minors. (6) Technical solutions,
business practices, and educational measures are needed to address this. (7)
Consumers themselves increasingly introduce pornographic content into online
distribution. (8) In response, P2Ps now lead tech sector in providing powerful
family filters to protect children. (9) Leading P2Ps work cooperatively and
proactively on deterrence, education, and enforcement. (10) P2P represents a
very small and declining percentage of criminally obscene content online. (11)
Websites and chat-rooms are the most dangerous sources of child pornography at
98+%. (12) Leading P2Ps have added strong anti-virus software and
private-data-protection measures. (13) Leading P2Ps distribute no spyware and
are working to ensure best practices for adware. (14) Real obstacle to
legitimate development is P2P boycott by major labels and movie studios. (15)
DCIA members are largest licensed online content distributors but with small
independents. (16) Only unique threat to P2P users is of infringement lawsuit
from RIAA due to its label boycott. (17) What is needed is non-discriminatory
licensing of major entertainment content for P2P. (18) P2Ps have tried to
negotiate but been rebuffed forcing adoption of inferior business models. (19)
Current legitimate online content market is purposely non-competitive with
offline channels. (20) Entertainment industries do not have clean hands vis a
vis their involvement in pornography. (21) Part of solution might be to not
support monetization of pornography with new measures. (22) The entertainment
industries are attempting to distract interested parties from core issues. (23)
Their emphasis on P2P does not reflect primary sources of online porn and is a
red herring. (24) Copyright infringement and pornography are real concerns that
DCIA is seeking to address. (25) Solution is for content rights holders to
license content for distribution by all digital media. Please feel free to ask
questions and to arrange a P2P technology demonstration. Thank you.
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