Net Neutrality and Free Speech On The Internet: Hearing

NET NEUTRALITY AND FREE SPEECH
ON THE INTERNET
HEARING
BEFORE THE
TASK FORCE ON COMPETITION POLICY

AND ANTITRUST LAWS
OF THE
COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
MARCH 11, 2008
Serial No. 11095

Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY

JOHN CONYERS, JR., Michigan, Chairman
HOWARD L. BERMAN, California
LAMAR SMITH, Texas
RICK BOUCHER, Virginia
F. JAMES SENSENBRENNER, JR.,
Wisconsin
JERROLD NADLER, New York
HOWARD COBLE, North Carolina
ROBERT C. BOBBY SCOTT, Virginia
ELTON GALLEGLY, California
MELVIN L. WATT, North Carolina
BOB GOODLATTE, Virginia
ZOE LOFGREN, California
STEVE CHABOT, Ohio
SHEILA JACKSON LEE, Texas
DANIEL E. LUNGREN, California
MAXINE WATERS, California
CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida
ROBERT WEXLER, Florida
NCHEZ, California
DARRELL ISSA, California
LINDA T. SA
MIKE PENCE, Indiana
STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia
STEVE KING, Iowa
BETTY SUTTON, Ohio
TOM FEENEY, Florida
LUIS V. GUTIERREZ, Illinois
TRENT FRANKS, Arizona
BRAD SHERMAN, California
LOUIE GOHMERT, Texas
TAMMY BALDWIN, Wisconsin
JIM JORDAN, Ohio
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
PERRY APELBAUM, Staff Director and Chief Counsel
SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel
TASK FORCE
ON
COMPETITION POLICY
AND
ANTITRUST LAWS
JOHN CONYERS, JR., Michigan, Chairman

RICK BOUCHER, Virginia
STEVE CHABOT, Ohio
ZOE LOFGREN, California
RIC KELLER, Florida
SHEILA JACKSON LEE, Texas
F. JAMES SENSENBRENNER, JR.,
MAXINE WATERS, California
Wisconsin
STEVE COHEN, Tennessee
BOB GOODLATTE, Virginia
BETTY SUTTON, Ohio
CHRIS CANNON, Utah
ANTHONY D. WEINER, New York
DARRELL ISSA, California
DEBBIE WASSERMAN SCHULTZ, Florida
TOM FEENEY, Florida
LAMAR SMITH, Texas, Ex Officio
PERRY APELBAUM, Staff Director and Chief Counsel
SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel
(II)
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CONTENTS
MARCH 11, 2008
Page
OPENING STATEMENTS
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, and Chairman, Task Force on Competition Policy and
Antitrust Laws .....................................................................................................
The Honorable Steve Chabot, a Representative in Congress from the State
of Florida, and Ranking Member, Task Force on Competition Policy and
Antitrust Laws .....................................................................................................
The Honorable F. James Sensenbrenner, Jr., a Representative in Congress
from the State of Wisconsin, and Member, Task Force on Competition
Policy and Antitrust Laws ...................................................................................
The Honorable Tom Feeney, a Representative in Congress from the State
of Florida, and Member, Task Force on Competition Policy and Antitrust
Laws ......................................................................................................................
1
3
5
6
WITNESSES
Mr. Damian Kulash, Lead Vocalist and Guitarist, OK Go
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Ms. Michele Combs, Vice President of Communications, Christian Coalition
of America
Oral Testimony .....................................................................................................
Mr. Rick Carnes, President, Songwriters Guild of America
Oral Testimony .....................................................................................................
Ms. Caroline Fredrickson, Director, Washington Legislative Office, American
Civil Liberties Union (ACLU)
Oral Testimony .....................................................................................................
Mr. Christopher S. Yoo, Professor of Law and Communication and Director,
Center for Technology, Innovation, and Competition, University of Pennsylvania Law School
Oral Testimony .....................................................................................................
Ms. Susan P. Crawford, Visiting Associate Professor of Law, Yale Law School
Oral Testimony .....................................................................................................
6
9
15
17
21
23
27
29
53
56
64
66
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Task Force on
Competition Policy and Antitrust Laws .............................................................
Prepared Statement of the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Ranking Member, Committee on
the Judiciary .........................................................................................................
2
4
(III)
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IV
Page
APPENDIX
MATERIAL SUBMITTED
FOR THE
HEARING RECORD
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative

in Congress from the State of Texas, and Member, Task Force on Competition Policy and Antitrust Laws ...........................................................................
Response by Rick Carnes, President, Songwriters Guild of America, to Question from Congressman Bob Goodlatte ...............................................................
Response to Post-Hearing Questions from Christopher S. Yoo, Professor of
Law and Communication and Director, Center for Technology, Innovation,
and Competition, University of Pennsylvania Law School ...............................
Response to Post-Hearing Questions from Susan P. Crawford, Visiting Associate Professor of Law, Yale Law School ............................................................
Letter from Leslee J. Unruh, Founder and President, Abstinence Clearinghouse, et al. to Members of Congress, dated March 10, 2008 ..........................
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NET NEUTRALITY AND FREE SPEECH

ON THE INTERNET
TUESDAY, MARCH 11, 2008
HOUSE OF REPRESENTATIVES,
TASK FORCE ON COMPETITION POLICY
AND ANTITRUST LAWS
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Task Force met, pursuant to notice, at 2:04 p.m., in Room
2141, Rayburn House Office Building, the Honorable John Conyers,
Jr., (Chairman of the Task Force) presiding.
Present: Representatives Conyers, Lofgren, Jackson Lee, Waters,
Cohen, Wasserman Schultz, Smith, Sensenbrenner, Goodlatte,
Chabot, Keller, and Feeney.
Staff Present: Stacey Dansky, Majority Antitrust Counsel; Benjamin Staub, Professional Staff Member; and Stuart Jeffries, Minority Antitrust Counsel.
Mr. CONYERS. The Task Force on Antitrust will come to order.
I am happy to see so many of our friends here. I know that Jack
and Jill, Incorporateds national board is here for the annual legislative event and so is its President, Jacqueline Moore Bowles. We
welcome all of you. Would you just stand up for 1 second? Thank
you. Very good to see you all. Ladies and gentlemen, over the last
10 years, the Internet has gone from its infancy through a period
of exponential growth. Today, over 113 billion people use the Internet, which is approximately 20 percent of the worlds population.
In the last 7 years alone, worldwide use has jumped 265 percent.
The Internet has become the dominant venue for the expression of
ideas and public discourse. From social networking to get-out-thevote drives, the Internet is now a leading tool for speech and action.
Web sites like Facebook, MySpace, LinkedIn, and Monster have
changed the way people of all ages connect socially and professionally. Political candidates raise more money online with each
election cycle. Newspaper Web sites and independent blogs have
revolutionized the ways in which news and media are disseminated
and consumed. And the Internet has opened up new performance
venues to emerging artists and entertainers. In these and other
ways, the technological innovation and communication made possible by Internet has made it among the most powerful outlets for
creativity and for free speech.
So when it comes to the Internet, we should proceed cautiously.
Unless we have clearly documented the existence of a significant
(1)
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problem that needs regulating, I do not believe Congress should
regulate. And even in those instances, we should tread lightly.
Today the open architecture of the Internet is under siege. On todays Internet, a blogger can compete on a level playing field with
news giants like CNN or The New York Times; an independent musician can stand equal with a record label; and citizen advocates
can have as loud a voice as politicians themselves.
However, some of the Internet service providers, which control 96
percent of the residential market for high speed Internet access,
are either monopolies or duopolies in the most of the areas of the
country. There are either one company or two companies controlling it, and they have proposed now to give favored treatment to
some Internet content and disfavored treatment to others. Under
these proposed business models, what treatment you get will be determined by how much you pay or potentially whether the Internet
service provider approves of the content that you are sending if you
are sending it over their pipes. Or perhaps the Internet service provider may have a financial interest. The problem is that many of
the innovations we have enjoyed on the Internet would never have
occurred under this proposed regime. We never would have had a
Google search engine or YouTube videos or Daily Kos blogs if paid
to play had been our national policy. To be sure, if we go in this
direction it will stifle future innovation on the Internet. And so I
am concerned that if Congress stands by and does nothing, we will
soon find ourselves living in a world where those who pay can play
but those who dont are simply out of luck, where politicians will
be able to stifle the voices of citizen activists through deals with
Internet service providers, where an increasingly consolidated entertainment industry might be able to prevent independent artists
and filmmakers from being heard.
Now, if Congress acts, it will not be because we have decided to
regulate. It will be because the Internet service providers have imposed their own new regulation on the Internet and are interfering
with its healthy growth. I believe that antitrust law is the most appropriate way to deal with this problem, and antitrust law is not
regulation. It exists to correct distortions of the free market where
monopolies or cartels have cornered the market and competition is
not being allowed to work. The antitrust laws can help maintain
a free and open market place
So Congress should help maintain a free and open Internet. So
this is a very interesting subject and I would recognize our Ranking minority Member, Steve Chabot of Ohio, for his opening comments.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, TASK FORCE ON
COMPETITION POLICY AND ANTITRUST LAWS
Over the last ten years, the Internet has gone from its infancy through a period
of exponential growth. Today, it is estimated that over 1.3 billion people use the
Internetthat is almost twenty percent of the worlds population.
In the last seven years alone, the worldwide use of the Internet has jumped 265
percent.
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(1) The Internet is speech
The Internet has become the dominant venue for the expression of ideas and public discourse. From social networking to get-out-the-vote drives, the Internet is now
a leading tool for speech and action.
Web sites like Facebook, MySpace, LinkedIn, and Monster have changed the way
people of all ages connect socially and professionally.
Political candidates raise more money online with each election cycle.
Newspaper web sites and independent blogs have revolutionized the ways in
which news and media are disseminated and consumed.
And the Internet has opened up new performance venues to emerging artists and
entertainers.
In these and other ways, the technological innovation in communication made
possible by the Internet has made it among the most powerful outlets for creativity
and free speech.
So when it comes to the Internet, we should always proceed cautiously. Unless
we have clearly documented the existence of a significant problem that needs regulating, I do not believe Congress should regulate. And even in those instances, we
should tread lightly.
(2) Today, the open architecture of the Internet is under siege
On todays Internet, a blogger can compete on a level playing field with news giants like CNN or the New York Times. An independent musician can stand equal
with a record label. And citizen advocates can have as loud a voice as politicians.
However, some of the Internet Service Providers, which control 96% of the residential market for high-speed Internet access, and are either monopolies or duopolies in most areas of the country, have proposed to give favored treatment to some
Internet content and disfavored treatment to other content.
Under these proposed business models, what treatment you get will be determined by how much you pay or, potentially, whether the Internet Service Provider
approves of the content you are sending over their pipes or, perhaps, has a financial
interest.
The problem is that many of the innovations we have enjoyed on the Internet
would never have occurred under this proposed regime.
We would never have had a Google search engine, or You Tube videos, or Daily
Kos blogs, if pay to play had been our national policy.
To be sure, if we go in this direction, it will stifle future innovation on the Internet.
(3) Congress should act to preserve Net Neutrality
I am concerned that if Congress stands by and does nothing, we will soon find
ourselves living in a world where those who pay can play, but those who dont are
simply out of luck.
Where politicians will be able to stifle the voices of citizen activists through deals
with Internet Service Providers.
Where an increasingly consolidated entertainment industry will be able to prevent
independent artists and filmmakers from being heard.
Lets not get confused. If Congress acts, it will not be because we have decided
to regulate. It will be because the Internet Service Providers have imposed their
own new regulation on the Internet, and are interfering with its healthy growth.
I believe that antitrust law is the most appropriate way to deal with this problemand antitrust law is not regulation. It exists to correct distortions of the free
market, where monopolies or cartels have cornered the market, and competition is
not being allowed to work. The antitrust laws can help maintain a free and open
Internet.
I look forward to hearing from our witnesses today, and to a meaningful discussion of the various perspectives on this important topic.
Mr. CHABOT. Thank you, Mr. Chairman. I would like to thank

Chairman Conyers for holding this hearing today. I would also like
to thank our witnesses for taking the time to discuss this important issue. Net Neutrality is not a new issue to this Committee or
to Congress. And debate in the past has been, quite frankly, very
passionate. I think we can all agree, though, that the Internet has
changed the way that we communicate, learn, and do business. It
has changed the way we access and use information and technology. The Internet has flourished in a relatively regulation free
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environment. For example, the Internet tax moratorium first enacted back in 1998, that was recently extended for an additional 7
years will continue to allow greater public access benefiting everyone from consumers to teachers and students, to the corporate sector and rural and urban areas alike. And it is a free market that
will continue to allow the best possible service at the best possible
price.
Too often Congress sees a problem that it believes it can fix. But
legislation is not always the right answer. Competition is. Competition drives the market to become as efficient and effective as possible. Providing consumers with the right quantity at the right
price. It has worked in the past and I believe that it will continue
to work in the future, particularly as it relates to the Internet. Unbeknownst to many of us, there is an entire network structure that
manages data traffic, enabling anyone to access virtually anything
at any time. It is necessary to ensure that the most effective network infrastructure is in place to connect consumers to content. I
am concerned that the heavy hand of government could deter investment and innovation and technology that will enable networks
to advance in the future.
Burdensome regulations, particularly in this case, may actually
slow the development of bandwidth, reducing the efficiency and effectiveness of the Internet, ultimately harming consumers. I look
forward to addressing these concerns with our panel of experts
today, and again, I want to thank the Chairman for this important
hearing and I yield back the balance of my time.
Mr. CONYERS. Thank you. You are welcome. Mr. Smith, the
Ranking Member of the full Committee, do you have a comment?
Mr. SMITH. Thank you, Mr. Chairman. Like you, I welcome all
witnesses here today. I do have an opening statement, but I would
like to ask unanimous consent that it simply be made part of the
record.
Mr. CONYERS. Without objection.
Mr. SMITH. And I yield back, Mr. Chairman.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, COMMITTEE ON THE
JUDICIARY
Mr. Chairman, thank you for calling this hearing on net neutrality and free
speech on the Internet.
Our Committee has always played a vital role in ensuring fair competition in the
telecommunications industry. We must continue to be vigilant of our jurisdiction in
the constantly evolving environment of the Internet.
What has happened in the almost two years since the Judiciary Committee last
considered this issue?
Proponents of Net Neutrality point to three episodes in 2007 involving Internet
service providers AT&T, Verizon Wireless, and Comcast.
Without going into the details of every case, it seems clear that each company was
taking these actions to serve a broader public good. In the case of AT&Ts vendor,
there was an effort to make the broadcast more family friendly. For Verizon, it was
to block spam text messages. For Comcast, it was to manage their broadband network to provide the best experience for all of its users.
In every case, there was an acknowledgment that the problem could have been
handled better or should have not happened at all.
But the companies took corrective action, issued apologies, and had to accept public criticism. The question is whether these limited examples provide a basis for
Congress to broadly regulate the Internet.
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Experience suggests not. Both the Department of Justices Antitrust Division and
the Federal Trade Commission have issued reports in the last year urging Congress
and the Federal Communications Commission to be wary of enacting regulation affecting the Internet.
DOJ and the FTC point out that competition in consumer broadband is strong and
growing.
For example, in each of the markets where AT&T, Verizon Wireless, and Comcast
compete, they undoubtedly lost some customers to other broadband providers who
were unhappy with the companys conduct.
They also note that network management is an essential function for any Internet
service provider and that net neutrality regulation could have many unintended
consequences.
Proponents of Net Neutrality are now casting this as a First Amendment issue.
But that argument ignores the fact that not all speech is created equal.
For example, Congress has protected certain speechin the form of copyrights
to preserve individuals intellectual property rights.
As NBC observed in its official comments to the FCC, The record . . . confirms
that fewer than five percent of Internet users consume at least 60 to 70 percent of
broadband network capacity through peer-to-peer file-sharing and that some 90 percent of this traffic consists of illegal, pirated content.
Congress attempted to address these concerns with the Digital Millennium Copyright Act of 1998. We should not be undercutting those efforts by implementing new
laws and regulations that prevent ISPs from utilizing new technologies to deter this
illegal downloading of pirated materials.
Similarly, Congress has long recognized that certain pornographic materialsparticularly those that exploit childrenshould be off limits entirely. To that end, the
Christian Coalition, among others, filed comments with the FCC expressing concern
that the proposed net neutrality rules might make it more difficult for [ISPs] to
monitor and filter the use of . . . [P2P] networks to facilitate crimes against children. . . .
These examples highlight how very difficult it is to write rules for how the Internet should grow. Instead of writing restrictive rules to solve this problem, I think
it would be better to focus our efforts on preserving the application of current antitrust laws to safeguard against anticompetitive practices on the Internet.
This approach preserves the jurisdiction of this Committee and ensures that we
dont put a straightjacket on this important sector of the economy.
Mr. CONYERS. Jim Sensenbrenner, Chairman Emeritus, have you

a comment?
Mr. SENSENBRENNER. A little bit, Mr. Chairman. Thank you very
much. In the last Congress, when I was Chairman of the Committee, I joined with then-Ranking Member Conyers to introduce
legislation. And the purpose was based on two principles. One is
that the antitrust law should apply to the telecommunications industry. That remains my position. And the second was that I believe that it was important that this Committee exercise its jurisdiction in this area because antitrust laws are not regulations in
that some Federal agency tells you what you can do and what you
cant do. But if somebody is aggrieved they can file a lawsuit. And
if they are able to prove anticompetitive action, then they can win
triple damages.
I would hope that the debate on Net Neutrality and what to do
about telecom and Internet regulation, or lack thereof, goes on in
this Congress. The current Chairman and Ranking Member at all
costs moved together to make sure that the Judiciary Committee
maintains its jurisdiction on this subject because if we allow our
jurisdiction to go to the Energy and Commerce Committee, I think
youll see a regulatory structure over the Internet that is not going
to be good for the American public, and it is not going to be good
for artists and others that use the Internet as an essential means
of communication such as the witnesses that we have here today.
Thank you.
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Mr. CONYERS. Thank you, sir. Ric Keller, have you a comment?
Mr. KELLER. No, I dont, Mr. Chairman. But thanks for asking.
I just appreciate all the witnesses being here.
Mr. CONYERS. Mr. Feeney, welcome.
Mr. FEENEY. Thank you, Mr. Chairman. This is my first hearing,
and I am very anxious to hear the various issues explored. I am
somewhat familiar with the Internet and intellectual property and
even antitrust. I have heard of horizontal monopolies. I have heard
of vertical monopolies. I guess when we are talking about wireless,
I guess it is sort of a ubiquitous monopoly. That is a new thing for
me to understand. With that I would yield back and listen very
carefully.
Mr. CONYERS. Thank you. Our witnesses are Susan Crawford,
professor; Professor Christopher Yoo; our old friend, Director of
ACLU, Washington office, Caroline Fredrickson; Rick Carnes,
President of the Songwriters Guild of America; Michele Combs,
Vice President of Communications, Christian Coalition of America;
and, of course, our lead vocalist and guitarist, OK Go, Damian
Kulash. A vocalist and a musician, a native of our capital, a graduate from Brown University, Kulash formed his organization in
1999 with three others. His band released 2 albums and won a
Grammy award for one of its music videos in 2007. They attribute
their breakthrough in part to the popularity of their videos, which
the group has uploaded and disseminated, or it looks like he is trying to play them here, disseminated across the world on video Web
sites like YouTube.com. Welcome, Mr. Kulash. We would love to
hear, see, and listen to your remarks.
TESTIMONY OF DAMIAN KULASH, LEAD VOCALIST
AND GUITARIST, OK Go
Mr. KULASH. Thank you, Mr. Chairman. Mr. Chairman, Ranking

MembersI am sorryMr. Ranking Member and Members of the
Committee, it is a real honor to be here. I am a rock singer, so I
have some experience getting up in front of a microphone, but to
put it this way, you are not my usual crowd. I am here today because my band, OK Go, is among the first to have truly found success on the Internet. I dont know if I need to tell all of you guys
my story or not. I am getting the sense that maybe you guys are
the Cool Rep 2000 and Chairman Rock that we already see on
our message boards every day.
But just in case, I am going to tell you a little bit about our story
and the videos that we put on the Internet, and I want to show
you a couple of those videos today. Our band started out the way
that every band did 10 years ago. The traditional music industry
was still very much in full swing, and it served a real purpose
which was to connect musicians who wanted to get their music out
there in the world, and there were people all over the world that
wanted to hear that music.
So a big industry grew to connect those dots. We worked in that
system. We started out playing shows in Chicago, at local clubs
where we started. We plastered our posters all over town. We took
as much time off from our day jobs as we could to go touring and
eventually we developed a big enough fan base that we landed that
rare prize, the major label record deal. Our first record, which we
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put out in 2002, did moderately well. We got to about 100 on the
billboard charts and just barely broke into the top 20 of the modern
rock radio charts which is something of a feat.
And to translate these numbers, we basically were in the middle
of the pack. We were doing much better than most musicians, felt
very, very lucky to be doing what we love for a living, but we were
still struggling for every fan we could find and frankly struggling
to pay our bills as well. So we put out a second record, and this
time we thought maybe we would add our own promotional ideas
into the mix a little bit.
We still did everything that our record label asked us to do, and
everything that every band would do, you know, the free shows for
radio stations, the nonstop touring, we would go to the Fox morning news studios and play an acoustic song for the people of Houston. But we also decided we would start our own online campaign.
So If you dont mind, I will show you the first video here that we
put on line. Uh-oh. Well, I thought I would play it. There we go.
I dont know if you can hear the song here. But that is us dancing
in my backyard. My sister helped us choreograph this pretty ludicrous routine as basically as somethinglet me turn this down.
This was something we were going to do on stage. It was just
planned as sort of a way to surprise our fans. There is really nothing more exciting than seeing a rock band in the middle of a show
just drop their instruments and break into dance.
All we really wanted was to see, you know, was 500 or a 1,000
jaws on the floor at the end of the show. So we came up with this
routine and we were practicing it in my backyard and we shot this
videotape. And the clip itself, there is just something really compelling about it. And when we saw it, we realized we have got to put
this out for our fans. So we put it on the Internet thinking, you
know, just our most hard core fans, you know, the dedicated few
would see it. And within a month, it had been streamed and
downloaded, viewed several hundred thousand times. So we realized that more people had actually clicked through to this video
than had purchased our first record after 18 months of touring.
So then what was really pretty crazy islet me go to the next
video here. The next thing that started happening was our fans
started posting their own versions of the video. Our fans would go
and learn the choreography and then tape it themselves and post
it on the Internet. What I am about to show you, it is pretty crazy.
This isa fan of ours found hundreds of these homemade videos
on line and compiled several of them together, and it is sort of a
composite video. So here are some of them. We got these videos
from all over the world. We have gotten them now from 5 or 6 continents.
We have seen them performed at peoples weddings, in the middle of Wal-Mart. That right there, that is my backyard. They blue
screen themselves into my backyard. We havewe saw them in
churches, we saw them in local firehouses. Thousands of people
were involved in sending us these videos and it really is something
that never could have happened 5 years ago. I mean, this is a connection to our fans that simply was unthinkable before. You are
usually held at arms length from your fans, but here we were con-
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nected directly to them and them to us. And that is, you know, a
really amazing feeling for someone making music.
But not to be outdone by our fans, of course, we decided we needed to post another video. And so we went to my sisters house and
we made this one. Once again, of course, this is just a home video
that we made and it is just one long shot again. As you can see,
we are dancing again but this time on moving treadmills.
For the record, I would like to say that we assume no medical
liability for any of our fans that may try to duplicate this one. This
video we figuredwe put it on line, it would probably do about
what the first one had. We thought we had basically done as well
as anyone can do on line with a video. We had already broken all
sorts of records. And in the first 2 days, we put this on line, we
posted it to YouTube, we had 1 million views. As you may have
seen in the full screen view there, this video now has beenthis
single posting of this video has now been viewed 31 million times.
Let me stop this. Sorry. So, you know, this video, of course, 31
million viewsI mean, this has taken us all over the world and it
has been incredible for our band. We can now play in countries to
thousands of people where our records are not even commercially
released. And what is most impressive is that we are actually making money for our standard model record label as well. We now license music all over the place and we sell real records, and it is
clear that our creativity has actually been a success for everyone.
No matter how you slice it, we are a successful band now.
So people are wondering if the music industry will benefit from
Net Neutrality. I dont think they need to look any farther than us.
We are musicians and we are part of the music industry. I dont
think there is really anyone out there who wants to see this business flourish more than we do. I am here today representing Future Musicexcuse methe Future of Musics Coalition to Rock
the Net campaign. There are 800 other bands who have signed up
with us in the last year, and 125 labels who are on board.
There really is some consensus here that Net Neutrality is good
for music and good for musicians. It has allowed us to innovate and
to create in ways that just were never possible before. Keep in
mind, all of us are businessmen, too. We want to get paid. I mean,
everybody wants their hard work to be recognized. And what we
really need is a legitimate digital marketplace for music. The only
way that is going to happen is if we build on a level playing field.
So Members of the Committee, Mr. Chairman, I am here to ask you
today to preserve Net Neutrality and the openness of the Internet.
I believe it is critical to the future of music.
Mr. CONYERS. Mr. Kulash, I dont know how to break this to you,
but there are a number of people up here that think that we could
do that too. And it may be better than some of the ones that you
have seen.
Mr. KULASH. I dont doubt it, sir.
Mr. CONYERS. Would you be willing to accept a Judiciary Committee video showing our steps?
Mr. KULASH. It will have to be submitted by the same means as
everyone else, sir, but, yes.
[The prepared statement of Mr. Kulash follows:]
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15
Mr. CONYERS. Well, I was for Net Neutrality when we started
this hearing. Michele Combs, Christian coalition of America. We
welcome you. You started in South Carolina as Executive Director
of America 2000, the Educational Service Corporation, a special
events company you started in 1992, managed functions for both
the Republican National Convention and the Democratic National
Convention. Hopefully not at the same time. And you did something for the late Senator Strom Thurmond. We will find out what
thatoh, and President George Bushs inauguration. Which one?
Ms. COMBS. 2001.
Mr. CONYERS. All right. We welcome you. And we have your written statement. All statements will be introduced into the record.
We are anxious to learn more about your position on this subject.
Welcome.
TESTIMONY OF MICHELE COMBS, VICE PRESIDENT OF
COMMUNICATIONS, CHRISTIAN COALITION OF AMERICA
Ms. COMBS. Thank you. Thank you, Chairman Conyers and distinguished Members of the Committee on the Judiciary. My name
is Michele Combs, and like Chairman Conyers said, I am the Vice
President of Communications for the Christian Coalition of America. And thank you for inviting me to testify on this very important
issue of Net Neutrality. The Christian Coalition of America is the
largest and the most active grassroots political organization in the
country. We offer people of faith a vehicle to be involved in shaping
their government.
Christian Coalition is a conservative political organization, which
is made up of pro-family Americans who care deeply about becoming active citizens for the purpose of guaranteeing that government
acts in ways that strengthen rather than threaten families. Use of
the Internet has allowed the Christian Coalition to engage Americans in a way that has revolutionized their ability to be heard and
to engage in the political process. The Christian Coalition Web site
is visited by millions of Americans every year and in addition, we
send out e-mail alerts every week to hundreds of thousands of supporters. And have available our voter guides, as many of you know,
every election cycle.
Our State chapters also have their own Web sites and many of
our supporters would not be able to keep up with legislation and
the legislative process if they were not able to access these Web
sites on a daily basis. The reason the Christian Coalition is for Net
Neutrality is simple. Because we believe in freedom of speech on
the Internet. Organizations such as ours should not beshould be
able to continue the use of the Internet to communicate with our
members and with the worldwide audience without a phone or a
cable company snooping into our communications and deciding
whether to allow a particular communication to proceed, slow it
down, or offer to speed it up only if the author pays extra to be
on the fast lane. Free speech should not stop when you turn on
your computer or pick up your cell phone.
The Christian Coalition testified some time ago on this issue, and
many Members of Congress promised to act if network operators
blocked political speech. We are here to say the time has come. Recent actions by the Nations biggest phone and cable companies
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should be of grave concern to all those who care about public participation in our democracy.
Consider these recent examples: Last fall, Verizon Wireless
censored text messages sent out by NARAL. When NARAL protested, Verizon Wireless said not to worry, because the company
would also block the speech of pro-life advocates such as the Christian Coalition. Now, let me show youthe Christian Coalition and
NARAL agree on almost nothing here in Washington, D.C., but we
do agree that Verizon censorship of political speech was wrong.
Verizon claims it has changed its policy.
I ask you, should the company have the right to make the decision in the first place? In August of 2007, AT&T censored a Web
cast of a concert by the rock band Pearl Jam, just as the lead singer started talking about politics. Also in October of 2007, the Associated Press reported that Comcast was blocking consumers ability
to download the King James Bible using a popular file sharing
technology. And it is also pointed out that Comcasts discriminatory
content just so happens to block access to video distribution applications that compete with Comcasts own programming.
I ask the Committee, if Comcast created a Christian family channel, would Congress allow it to block access to a competing product
from the Christian Coalition? If phone companies cannot tell Americans what to say on a phone call, why should they be able to control content or tell us what to say or send a text message or an
e-mail?
The Christian Coalition of America does not seek burdensome
regulations as we prefer less government to more, and we do not
believe that government should censor speech. But right now the
telephone and cable companies are invested in the same kind of
censorship and content discrimination technologies that are being
used today by the Chinese government to block the Christian Coalition from reaching Chinese citizens.
Finally, faith based groups are turning to the Internet to promote their political rights, to engage in what Ronald Reagan called
the hard work of freedom. We should not let the phone and cable
companies interfere with that work in getting our message out to
the millions of Americans who want to make this country a better
place for their children and grandchildren.
Mr. CONYERS. Thank you very much.
[The prepared statement of Ms. Combs follows:]
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21
Mr. CONYERS. Songwriters Guild of America, Mr. Rick Carnes.
President of Songwriters Guild of America. Twenty-one million
records have been produced from songs that he has written. Dean
Martin, Trisha Yearwood, Garth Brooks and Reba McEntire. And
it goes on and on. Under Mr. Carnes leadership, the Songwriters
Guild has become a leading advocate on creative and artistic
issues. We welcome you to the Committee, sir.
TESTIMONY OF RICK CARNES, PRESIDENT,
SONGWRITERS GUILD OF AMERICA
Mr. CARNES. Thank you, Mr. Chairman, and Ranking Member

Smith, and Members of the Committee. Thank you for this invitation to discuss the songwriters perspective on Net Neutrality proposals and antitrust laws. My name is Rick Carnes, and I am
President of the Songwriters Guild of America, and this year marks
my 30th year as a professional songwriter. No issue is more important to songwriters who have seen their livelihoods and professional futures devastated by Internet piracy. Today, the songwriting profession is like a person drowning in quicksand. Some of
us barely have our heads above the surface, but we are up to our
armpits, and there is a chance that new technologies to detect and
deter illegal file sharing might save us.
But I am concerned that pending regulatory and legislative proposals could discourage the development of those technologies and
therefore cause my colleagues in my profession to drown. Chairman
Conyers and Congressman Smith, over the years there have been
no greater advocate for songwriters than you and your colleagues
on this Committee. We truly appreciate the responsiveness of this
Committee to the copyright and technology challenges we have
faced together over the past 15 years. As the Committee considers
the competition aspects of the Net Neutrality debate, I wanted to
provide you with our perspective on how authors, writers, and composers are affected by potential regulation of the Internet.
As I have testified before this Committee, Internet piracy is damaging the music industry and killing off the songwriting profession.
As a matter of fact, my own publisher had 12 songwriters on staff
in 1998, and they have one on staff in 2008. The devastation is almost total now. Recent studies indicate that 70 percent of the volume of the traffic on broadband networks is P2P traffic relating to
5 percent of the users, and easily 90 percent of that traffic is unlawful. That is the real bottleneck in the Internet now.
A 2008 U.K. study by the Wiggin Group found that 70 percent
of those surveyed said theyd stop illegal file sharing if their ISP
notified them in some way that it had detected their practice. In
other words, the problem of illegal file sharing is unacceptable and
the misconduct committed by a small group of people is causing the
problem, many of whom would stop if there were technology to
warn them to stop or to make them stop. Some network operators
such as AT&T are now considering technological means to identify
and filter illegal content over the Internet. Technology has hurt our
profession, but at last some more technology might finally save it.
As a songwriter, I can tell you that my choice is to have my works
distributed by someone who is invested in trying to stop the digital
theft of intellectual property.
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Indeed, I would believe it would be to the economic advantage of
broadband operators to take such steps because the quality of content they distribute would increase and many consumers would
prefer their service. In other words, there is evidence that the marketplace might finally be working here to reduce Internet piracy,
so it is with great concern that I read the proposals that would prevent ISPs from managing their networks in order to relieve congestion when that congestion is largely caused by illegal file sharing.
Some proposals by the Commerce Committee and the FCC would
prevent ISPs from taking necessary management actions, and I believe those proposals are without justification. But so too should
this Committee proceed with very great caution on antitrust proposals that would expand the current laws to protect consumers
against unfair competition on the Internet. Antitrust legislation in
the prior Congress, HR 5417, would have created a presumption
that broadband operators were acting unlawfully unless they could
show that their network management or antipiracy actions were
nondiscriminatory or fit into certain narrow exceptions.
I am confident that this legislation did not intend to discourage
the developing technologies that could counteract the digital piracy
epidemic, but I am concerned that that might have been the result.
The last Congress antitrust bill could have prevented ISPs from
discouraging illegal content practices and would have prohibited
the ISPs from encouraging their customers to patronize sites that
adopt lawful copyright practices.
I strongly urge the Committee to think this issue through further
because that result would be very harmful to songwriters. Here is
one final thought on legislation and regulation on Net Neutrality.
It strikes me as odd that the problem of broadband network congestion largely caused by illegal file sharing has been addressed by
proposing that the ISPs be denied the ability to manage that very
congestion. The market appears to be addressing the problem now,
but if regulation or legislation is deemed necessary, then I recommend that Congress consider the heart of the problem first, and
that is illegal file sharing. Illegal file sharing is the problem, Mr.
Chairman. And I encourage you and your colleagues to factor that
issue into your further deliberations. Thank you very much for this
opportunity to express my views.
Mr. CONYERS. Thanks so much.
[The prepared statement of Mr. Carnes follows:]
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Mr. CONYERS. Caroline Fredrickson, Esquire, American Civil Liberties Union. You have been before the Committee numerous times,
you have been General Counsel and Chief Operating Officer for
NARAL Pro-Choice America, a Chief of Staff to Senator Maria
Cantwell, a deputy chief to former Senate minority leader Tom
Daschle, a lawyer from Columbia University, and before that, Yale.
We are happy to have you. We have got your statement. And now
we will hear from you.
TESTIMONY OF CAROLINE FREDRICKSON, DIRECTOR, WASHINGTON LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES
UNION (ACLU)
Ms. FREDRICKSON. Thank you very much, Chairman Conyers,

Ranking Member Chabot, Members of the Task Force. It is a pleasure to be here to talk to you about Net Neutrality and free speech
on the Internet. The Supreme Courts ruling in Brand X, and FCC
inaction in addressing increasing censorship by broadband Internet
service providers or ISPs are key factors in todays threat to on line
free speech. This hearing marks an important step toward ensuring
that the marketplace of ideas for the 21st century, the Internet, remains the bastion of freedom that it has been since its creation.
The Internets marketplace enhances speech through its decentralized, neutral, nondiscriminatory pipe that carries data from origin
to destination without interference. Neutrality promotes open discourse; consumers, not gatekeepers, decide what sites to access
among millions of choices. The Internet structure facilitates free
speech, innovations and competition on a global scale, providing access to a mass audience at little or no cost. No one owns the Internet. Instead the Internet belongs to everyone who uses it.
The Internet has become the leading 21st century marketplace of
ideas because of neutrality rules promoting nondiscriminatory
speech, association, and content. The Internet was born and flourished under well-established, nondiscrimination protections derived
from title 2 of the Communications Act of 1934, which grants the
FCC the authority to regulate telephone companies as common carriers. As early as 1966, the FCC required that data transmissions
going over the phone lines be provided on a nondiscriminatory
basis. The Internet blossomed under that protection.
Today three-quarters of all adults in the United States, 147 million people, use the Internet. And two-thirds of American adults do
so daily. Neutrality rules have made this dynamic growth possible.
ISPs ignore this history by wrongly suggesting that nondiscrimination would regulate the Internet. The opposite is true. Nondiscrimination ensures that lawful activity on the Internet remains
free from regulation by both the government and network providers. And ISPs first amendment rights are not violated by neutrality rules that would bar an ISP from censoring its customers.
Aside from the Internet content that they create, edit and maintain, which would not be restricted under neutrality principles,
ISPs are not speakers. They are merely providing the wires
through which each of their paying customers accesses the Internet
in the same manner as telephone companies do for our phone lines.
That is why the FCC was allowed to regulate ISPs as common carriers until 2005 when the Supreme Court ruled in Brand X that
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they, instead, may be regulated as information services. But ISPs
exist to provide customer access to the Internet and the expressive
and associational activities found there free of censorship, akin to
the role of telephone companies in providing communication services.
We would not tolerate a telephone company restricting our calls
to certain numbers based on the content of the call and we should
not tolerate that type of censorship from ISPs. A vibrant marketplace of ideas on the Internet cannot function with corporate censors any more than it can with government censors. Without neutrality rules, ISPs are engaging in more and more online censorship. Ms. Combs has already done a very fine job of outlining the
variety of censorship activities that have happened just in the last
year or 2. So I wont restate those.
But the ISPs have established, through their very own actions,
that Internet censorship is a growing reality and not the speculative hypothetical they claim it to be. Restoration of meaningful
neutrality rules would simply return us to where we were before
the Brand X decision in 2005 by prohibiting ISPs from picking and
choosing which users can access what lawful content through the
gateways they provide.
Congress must pass legislation that enforces the four freedoms
established by the FCC in its 2005 policy statement, including access to lawful Internet content and running applications and services of ones choice with penalties for violations of those freedoms.
Otherwise, the Internet will be transformed from the shining oasis
of speech to a desert of discrimination that serves to promote only
the ISPs commercial products, and so much would be lost from
that change. Thank you very much for your attention.
Mr. CONYERS. Thank you for being on time, which you always
are.
[The prepared statement of Ms. Fredrickson follows:]
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Mr. CONYERS. I am pleased now to turn to Professor Christopher
Yoo, University of Pennsylvania, who teaches telecommunications
and intellectual property law, directs the University Center For
Technology, and prior to his appointment, taught at Vanderbilt
University Law School. He has published prolifically and has a new
book coming out this year entitled Networks in Telecommunications: Economics and Law. He clerked with Supreme Court Justice Anthony Kennedy, and is a graduate from Harvard Law
School, and I am pleased to welcome him at this time.
TESTIMONY OF CHRISTOPHER S. YOO, PROFESSOR OF LAW
AND COMMUNICATION AND DIRECTOR, CENTER FOR TECHNOLOGY, INNOVATION, AND COMPETITION, UNIVERSITY OF
PENNSYLVANIA LAW SCHOOL
Mr. YOO. Thank you, Mr. Chairman, Members of the Committee

and the Task Force. I am grateful for the opportunity to be here
today. The Internet is, perhaps, the first major technological development of the 21st Century. A network that began as a platform
for e-mail and Web browsing now supports a dazzling array of new
services. Perhaps the most important of these new services for policymakers is the emergence of Internet video technologies, such as
YouTube and Vuze.
These new applications are placing increasingly intense and varied demands on the network and have made network planning considerably more uncertain. For the past 5 years, Internet traffic has
grown at a rapid but steady rate of roughly 50 to 60 percent each
year. Some experts estimate that Internet video will cause that
growth rate to double to 90 percent to 100 percent each year as occurred during the first 6 years of the Internet and is reportedly occurring in Japan. If these estimates are correct, network providers
must increase their capital investments by over 100 billion dollars
or else the Internet will slow to a crawl by 2010. The key reason
that the Internet isthe problems posed by the Internet is that it
is subject to congestion.
In other words, the speed you receive depends not only on how
many network resources you are using, but also how many other
people are on the system at the same time. Internet technologies
vary widely in their susceptibility to congestion. For example,
cable-based technologies are more vulnerable to congestion at the
neighborhood level than are telephone-based technologies. Cable
modem service will degrade if as few as 15 of the 300 users in the
same neighborhood are running BitTorrent. Wireless broadband
technologies are even more vulnerable to congestion.
In some respects, Internet congestion arises in much the same
way as congestion arises on our Nations road system. Like on the
Internet, the speeds that you can attain on the roads depend not
only on your decisions, but also on how many other drivers choose
to hit the road at the same time. In addition, like the Internet, congestion on the road system varies from location to location. Therefore, any solution must be tailored to increases in volume that vary
in time and space.
There are typically two solutions to congestion. One solution is
to build more lanes to make sure there is always enough capacity
to prevent delays when traffic peaks. The problem is that building
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excess capacity is expensive. Maintaining extra resources that are
only used a few minutes out of every day is typically a bad deal
for consumers. The increase in capital costs threatens to slow the
buildout of broadband services for all Americans. And the additional cost will raise the number of subscribers that a broadband
network will need to break even, which means that the burden
would fall especially hard on rural Americans.
In addition, no matter how hard they try, planners predictions
of how much and where to add additional capacity will occasionally
be wrong. Adding more lanes takes time. So when planners make
mistakes, adding capacity is not always available as an option.
Even more importantly, adding lanes often simply stimulates development at the ends of the roads until the new lanes become congested as well. There is a real danger that demand will expand to
fill all available capacity no matter how many lanes are added.
The alternative approach to adding capacity is engaging in some
type of network management. By limiting access to the interstates
during rush hour, reserving lanes for high occupancy vehicles and
buses and giving ambulances and other high value traffic priority
over other traffic. Each of these approaches involves a degree of
nonneutrality, and yet each is regarded as uncontroversial.
I do not mean to push the analogy between the road system and
the Internet too far. There are some critical differences between
them. For example, Internet traffic is extremely bursty, in that
long periods of inactivity are punctuated with extremely brief but
intense periods of heavy bandwidth usage. This makes network
management considerably more complex and calls for different
tools.
Perhaps the most important difference between the road system
and the Internet is the presence of bandwidth hogs. In the road
system, each driver cause roughly the same amount of congestion.
On the Internet, the situation is quite different. Network providers
estimate that as few as 5 percent of end users represent between
50 and 80 percent of the networks total usage and many applications are designed to increase the usage as long as capacity is
available.
The question in such a world is not whether congestion will
occur. The question is whether the cost of that congestion will be
borne by all users or only by those responsible for causing it in the
first place. Good economics and simple fairness favor placing the
lions share of those costs on those responsible for creating them.
Any other system would, in effect, require low bandwidth users to
cross-subsidize the network usage of a handful of bandwidth hogs.
It is for this reason that every panelist that testified at the FCCs
February 26 hearing on network management agreed that some degree of network management is inevitable. The problem is that the
reasonableness of any particular approach to network management
varies from technology to technology and within any particular
technology varies across time and from location to location. The
problem is complicated still further by the fact that technology underlying the Internet is undergoing constant and rapid change. At
the same time, the current debate has failed to take into account
the proper analog to the Internet is not the one-to-one communica-
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tions that characterize the telephone system, but rather the oneto-many communications that characterizes the Internet.
The flood of Internet contentin short, Internet users face an avalanche of content every day and depend on search engines,
bloggers and other intermediaries to help sift through it. Consumers also depend on them to protect them from undesirable content such as spam, viruses and pornography. The question is thus
not whether there will be an intermediary. The question is who
will serve as that intermediary. And, in fact, there are a great deal
of problems as the Christian Coalitions position in thisbefore the
FCC makes clear, we do depend on network operators to screen us
against pornography, ring tones with racial slurs, and profanity
and other forms; and we must be careful that in asking companies
to serve as intermediaries that we do not stop their ability to do
that.
The precise details of which agency and whether agencies or
courts should enforce are less important than the substance of the
law. I would urge this Committee not to rule any particular solution off the table. Leaving network providers free to experiment
with new solutions is the best way to ensure that consumers enjoy
the full range of the Internets tremendous potential in the future.
Thank you.
Mr. CONYERS. Thanks so much.
[The prepared statement of Mr. Yoo follows:]
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Mr. CONYERS. Professor Susan Crawford, Yale Law School. Also
has taught at Cardoza School of Law in New York, Georgetown
University Law Center, Michigan University, a policy fellow at
Center for Democracy and Technology, and sits on the board at the
Internet Corporation for Assigned Names and Numbers. We welcome you to the Committee.
TESTIMONY OF SUSAN P. CRAWFORD, VISITING ASSOCIATE
PROFESSOR OF LAW, YALE LAW SCHOOL
Ms. CRAWFORD. Thank you so much, Chairman Conyers, Ranking Member Chabot and Members of the Committee. It is an honor
for me to be here today and talk to you. I want to leave you with
just three key points. First is that the stakes are extraordinarily
high for this discussion because the Internet is becoming the general purpose communications network on which all Americans rely
for both business and personal reasons. And second, that there are
clearly insufficient protections in place for both speech and innovation on line. As the Chairman pointed out, we have an unregulated
duopoly in place providing Americans with Internet access at the
moment. And they have enormous market power and every incentive to discriminate against speech and new products and new services that they believe are undermining their business plans. Third,
congressional action is needed to ensure in advance that we have
an open, neutral Internet to which all of us can have nondiscriminatory access. Just a few words about the context here. We make
a deal over and over again with the providers of general purpose
communications networks. Here is the deal.
In exchange for limiting your liability for the content of the communications that pass over your network, we make them provide
nondiscriminatory assistance to all customers who are willing to
pay. We have done this for the telegraph, we have done this for the
telephone. This is not a new obligation. It has allowed us to put
our general communication systems in the hands of private, forprofit companies without worrying about discrimination and censorship.
We are at a constitutive moment in communications history, a
real turning point. This is like the moment of the arrival of the
telegraph and the telephone. Now it is the Internet. The Internet
is the first global, electronic, general purpose communications network. It is triggering economic growth and new ways of making a
living all around the world. The Internet is not the same thing as
Comcast cables or Verizons wires or even a wireless connection.
These companies are merely providing one set of connections that
allow users and businesses to connect to the dynamic interaction
that the Internet protocol facilitates.
The stakes for this conversation could not be higher. The difference between a phone, a cable system and television, they are
all dissolving. The Internet is taking over the functions of all of
these communications networks we used to use. Each of the
vertically integrated network access providers in this country sees
this change as a threat. Telcos want to offer their own premium
television services, music services and premium Web content, cable
cos want to offer more channels of cable content. Cable companies
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limit their Internet access services to a very small amount of bandwidth.
In fact, the real bandwidth hog here is Comcast in many ways.
Internet access is a tiny portion of their overall bandwidth. The
rest is devoted to cable content. The open Internet could become
the greatest competitor these companies have ever seen. Again, it
is not one competitor, but a general purpose vehicle for thousands
of entrepreneurs across the country offering innovative new products. Each of these dominant network access providers, as you have
heard from Professor Yoos testimony, wants to act as an editor, an
editor or a gatekeeper of Internet access for their own commercial
purposes. They want to call these edited services Internet access,
but it is not really that. It is much more like more cable content.
These guys dont want to be gravel pits. They dont want to provide
commodity transport.
We have a choice right now. Should we have a general purpose
network available for all Americans to use in a nondiscriminatory
fashion, like a road from a rural center to a big city, or should we
have a series of special purpose networks that are much more like
rides at Disneyland, carefully managed. The whole consumer experience is one that is tailored to the competitive needs of the network access provider. The stakes are very high. This is about the
future of communications itself.
Second, there are clearly insufficient protections for speech on
line. As the Chairman clearly outlined, we do not have a functioning competitive market for Internet access in this country. Instead we have regional duopolies, offering either DSL service or
cable modem service to 96 percent of the country. A third of Americans have, at most, one choice of high-speed Internet access provider. This lack of competition provides the opportunity for discrimination with respect to Internet access services and that discrimination, in turn, serves the goal of these large carriers. It is so
easy to come up for explanations for discrimination after the fact.
Arbitrariness by itself is enormously threatening to speech, and innovation and has the potential for suppressing particular points of
view as the Christian Coalition points out.
So congressional action is needed. That is my final point. All of
these Internet access related questions are being dealt with under
the SECs assertion of ancillary jurisdiction. There is simply no express congressional mandate for how to deal with Internet access.
We should not allow a key source of Americas economic growth to
be subjected to such ad hoc authority. Congressional oversight, particularly from this Committee, is needed. Thank you very much.
Mr. CONYERS. Thank you.
[The prepared statement of Ms. Crawford follows:]
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Mr. CONYERS. Professor Yoo, you are in a tough place here. Because you are between two female lawyers. Steve Chabot and I are
wondering what would happen if we left you, you know, to your
own devices and see what would happen. Now, over here, we have
got two songwriters. And is this new school versus old school on
this situation?
Mr. KULASH. No, it is not, sir.
Mr. CONYERS. Oh, it isnt?
Mr. CARNES. He is the Future of Music Coalition. I guess that
makes me the past.
Mr. CONYERS. And then Attorney Fredrickson and Ms. Combs
have rarely agreed on anything, and they come together in harmony this afternoon. Isnt that amazing? So your Chairman wonders what would you say, Mr. Kulash, to Mr. Carnes and what
would our two lawyers say to Professor Yoo?
Mr. KULASH. I will take the Kulash question. There is no reason
that the law shouldnt apply on the Internet. What we are looking
for is a vibrant, realistic digital market place for music and I think
that can only happen if we let the innovators come up with the system instead of deciding right now that one of the two companies
existing can make that system happen.
Mr. CARNES. To which I would reply, when you say Net Neutrality, the Internet is not neutral now. It is set up for the benefit
of the 5 percent of bandwidth hogs that are using 70 percent of the
bandwidth, 90 percent of which is illegal content. In terms of freedom of speech, I would like to remind you that this copyrighted
it is all copyrighted material that is being stolen and the Supreme
Court has said that copyright is the engine of freedom of free expression.
Mr. CONYERS. Well, you know, this Committee has just put out
a pro IP bill with all kinds of additional protection.
Mr. CARNES. And we appreciate that. But they also removed the
civil enforcement from the bill by the FBI, which is in the Senate
version but it is not in the House version, which is really critical
for us.
Mr. CONYERS. Are you a lawyer, as well?
Mr. CARNES. You know, I am not
Mr. CONYERS. I am just inquiring. Now, Professor Yoo, do you
have any last comments before we leave you to the people on your
immediate right and left?
Mr. YOO. Thank you for allowing me that, Mr. Chairman.
Mr. CONYERS. It is like making your last statement before you
are executed.
Mr. YOO. I guess if I were to leavemake one point at this point
is that I do believe that the competitive market can work here in
ways that are unappreciated. The Chairmanyou mentioned that
there is a duopoly. There is actually tremendous opportunity for a
much more competitive environment. From having zero subscribers
in 2004, wireless broadband by the end of 2006 signed up 21 million subscribers. And by the end of 2007, they estimate it will have
doubled again to 45 million subscribers. What we find from the
record in the FCC proceedings is things like network management,
which we regard as nonneutrality, are critical for wireless sub-
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scribers to survive to introduce the very competition that the antitrust task force recognizes as essential for a long-term solution.
And, in fact, one of the points made by a very small rural wireless carrier named LARIAT run by a gentleman named Brent
Glass says that he has got such limited bandwidth and his cost
margins are so tight that the only way he can survive is by cutting
down on a handful of BitTorrent users on the moments that the
volume peaks. And the reality for him is if we do not allow him
to manage the network in that way, the kind of competition which
we are saying is the goal will not occur.
Mr. CONYERS. Well, what do you say, ladies?
Ms. FREDRICKSON. Well, I think from our perspective, the essential factor here is free speech and the ability to communicate. And
whether or not the ISPs need to engage in some kind of network
management I think is a question for technologists more than it is
for those of us on this panel, except to the extent that it is nondiscriminatory that should be the major focus of this Committee
and of legislation to ensure that whatever network management, as
Professor Crawford has noted, not be used as an after-the-fact justification for discrimination.
So that is why I think it is critical that the Committee consider
legislation that would set up neutral rules from the beginning to
ensure that no discrimination takes place and network management not be used as cover to eliminate certain types of content.
Ms. CRAWFORD. And just a follow-up on Ms. Fredricksons remarks. We did this successfully in the 60s. We kept the phone
business out of the business of data processing. They were quarantined out of that business. And that was a very successful way
of not having to get engineers into writing legislation but just keeping an old industry from controlling a new one. And that is the risk
we are facing here. Now, a lot of this is talking about money. I understand that for about a dollar per subscriber per month, a cable
system could roll a neutral network. It saves them, I understand,
Comcast something like 10 cents per subscriber per month to do
the kind of traffic shaving they are doing. This is not about that.
This is about, from their perspective, the risk of a precedence that
they be treated like a general communications carrier when it
comes to Internet access. They should upgrade their networks.
Ms. LOFGREN. [Presiding.] Ms. Combs, are all of the ladies on
this panel in agreement this afternoon?
Ms. COMBS. Yes, we are.
Ms. LOFGREN. I thought so. Well, on that note, we will take a
brief recess for a vote, and we will be right back and recognize
Steve Chabot.
[Recess.]
Ms. LOFGREN. The hearing may resume. We are now at the part
of our agenda where we will ask Mr. Chabot to begin his questions.
Mr. CHABOT. Thank you very much, Madam Chair.
This question is to any or to all of the witnesses, whoever would
like to respond.
The relationship between the Internet Service Providers and content providers, isnt it mutually beneficialand practically speaking, consumers cannot access content without a network, and a network serves no purpose without content to distribute and consumer
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demand. How does government involvement help this already quite
successful relationship? How would the consumer be impacted by
changes in that dynamic at this time? Yes, Professor.
Ms. CRAWFORD. It is an interesting question. You would think
that the two would be mutually helpful to each other. Actually,
there is economic evidence by our colleagues Barbara Van Shelich
and Brett Frischmann, a joint paper, making clear that network
access providers have every incentive actually to discriminate
against content, not their own, in order to further their own business plans. Again, the idea is you have got an incumbent with an
existing powerful business that it wants to protect at almost any
cost even if it might be better for the network as a whole if they
collaborated with content providers.
A second point is that the Internet is not just content being passively sent to subscribers. The greatness of the Internet is that this
is an interactive, often user-generated network that allows for a lot
of other communications that cannot be described as content.
Mr. CHABOT. Okay. Thank you. Professor Yoo.
Mr. YOO. They are mutually beneficial for the most part. It is one
of these things that is actually reflected in Supreme Court precedent going back to the vertical integration between networks and
content providers, all the way back. The Supreme Court used to be
extremely hostile toward the idea and were thinking, oh, this
would be bighaving the network own the content could lead to all
of these harms. Well, what is happening in the Supreme Court doctrine with regard to vertical integration and vertical restraints is
it has become much more permissive. Why? Because this is often
extremely efficient behavior. Particularly with the Internet, sometimes a very tight integration between the content and the network
can actually increase the functionality of the network.
The best example I know of is the wireless industry. One of the
thingsif I were walking across this room, I would pass through
hot spots and cold spots as I walk through depending on the bandwidth I get. What the wireless industry will often do is to give me
my voice communications constantly all the way through as I walk
through the room. If I am at a cold spot, it will hold my e-mail.
Why? I cannot stand my voice traffic being interrupted for even a
third or a quarter of a second, or else I will not use it. Now, when
I get to a hot spot, they will dump me all of my e-mail at once.
Is that neutral? No. Does it require a very tight integration between the content, the device, and the application of the network?
Absolutely. It is a way to yield real benefits to consumers in ways
that are very concrete.
You see this in an empirical study that is fascinating. They have
done two large studies by the FTC staff as to when that kind of
tight integration yields benefits. One looked at 17 full studies that
always increased consumer welfare. In the other study, 16 out of
17 times it increased consumer welfare. If you look over the last
212 years, the FCC has examined it and has said this is not a problem despite the filings in every single case in five major regulatory
matters. Is there a small theoretical possibility of some harm? Yes.
It depends on very specific empirical conditions, which is why I
think a case byI have always supported a case-by-case analysis
instead of saying this is not a problem and it should go away, but
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we should make sure that the circumstances for that anticompetitive conduct exists before we stop these kinds of practices which
can yield real benefits to consumers.
Mr. CHABOT. Thank you.
Does anybody else want to touch on it or should I go to another
question? I will go to another question.
How do networks deal with innovation? How would technology be
impacted by additional government involvement? Would consumers
benefit from more regulation? Anybody is welcome to it.
Ms. Fredrickson.
Ms. FREDRICKSON. Well, I think our perspective is that Net Neutrality rules are less regulation. They allow the Internet to flourish
in a very free fashion, but you have to set some basic, nondiscriminatory policy to so that those ISPs cannot control and limit the
content.
I think Ms. Combs, as I said earlier, has already laid out numerous examples of where there has already been discrimination undertaken by ISPs. So I would differ with Professor Yoo and say
that it is not theoretical. It is not hypothetical. It actually exists.
Therefore, we need to ensure that the Internet remains unconstrained and free and foments innovation and competitiveness
rather than limits it by allowing ISPs to shut down competing services and content that they might disfavor.
Mr. CHABOT. Thank you.
Professor Yoo and Professor Crawford, if you could, answer very
quickly because my time is over.
Ms. CRAWFORD. Just very quickly, we are talking about telco incumbents. One of their last great innovations was call waiting. We
have not seen a lot of innovation coming from the network providers. What has been happening is an explosion of innovation at
the edge, and it is that innovation that Net Neutrality furthers.
Mr. CHABOT. Thank you. Professor Yoo.
Mr. YOO. As to the story that Ms. Fredrickson told about the
early days of the Internet, I assume you are talking about the
Computer Inquiries and the first generation of regulation. What is
fascinating is we did have nondiscrimination rules, but the telcos,
when they had a new development, constantly had to come asking
for waivers. For example, in shifting from analog transmission to
digital transmission, you had to change the network, and all of a
sudden the things that were digital did not communicate with the
things that were analog anymore. When we had a restrictive rule
in place that defined nondiscrimination in a very particular way,
any time a network needed to innovate they had to come get a
waiver and get a special dispensation. Call waiting was retarded by
the fact that they had to get a special waiver because call waiting
is provided by the computer processing in the switch. That is the
cheapest way to do it. Well, that was nonneutral because the telephone company had an advantage, but it was a natural advantage
in the technology. We had these battles under that rule where they
were constantly fighting over what was permitted under the rules
until finally we shifted the regime to saying the FCC said we
should get out of this. The real solution here is competition.
Mr. CHABOT. Thank you very much.
My time has expired, and I yield back the balance of my time.
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Ms. LOFGREN. The gentleman yields back.
I have, really, a question. I was interestedI am sorry. I ran
over to vote, and I did not get to hear your testimony, but I did
read the testimony, Professor Crawford. I have a concern with
Comcasts recent issues with BitTorrent. I was just thinking.
Where does this lead if you regulate uploads or charge for uploads?
You know, what does that do to the innovation that we are finding
on the Internet? Does that pose, in your judgment, pretty severe
first amendment issues?
Ms. CRAWFORD. Thank you, Congresswoman. It is a wonderful
question because the great value add of the Internet comes from
the ability to upload, not just to be passive consumers of content
for all of us without asking permission to create our own movies,
our own new applications, our own new ways of making a living.
Having an asymmetric network like the one that Comcast has intentionally built is very destructive to that kind of innovation. I
will note that in Japan and in France and all over the world they
are building symmetric networks that are moving for uploads at
100 times the speed we have available in the United States. So,
just as a matter of national pride as well as innovation, we should
care about our ability to upload.
Ms. LOFGREN. All right. Professor Yoo, do you disagree?
Mr. YOO. Well, I do think it is important, but what is fascinating
about the Comcast example is that it is not just about uploads. I
mean consider OK Gos success on YouTube. YouTube is not a peerto-peer technology. It is a classic server technology where it is all
hosted in one place. So, in a way, what Comcast is not trying to
do is to go against user-generated content. What they created was
a very nicely crafted world in which they did not block it across
any application across the whole network. They found a handful of
nodes at certain times where they were bogging down with congestion and found a way to slow down the uploads when there was no
human being on the other end. The beauty of BitTorrent is that it
probably did not even hurt the people who were attempting to
download at the same time because the genius of BitTorrent is it
will go get those bits someplace else. So it was actually potentially
a very finely crafted idea.
I agree with Professor Crawford that the user-generated content
world is very exciting, but in many ways, things like what Comcast
did to BitTorrent is essential to preserving the YouTube style of
file server user-generated content and in making sure that the
peer-to-peer style does not congest the entire Internet.
Ms. LOFGREN. You know, this Net Neutrality debate is not a new
one for the Congress. Last year, we went through this. As a matter
of fact, I was telling my staff that I sort of toyed with the idea of
playing the Ask a Ninja: Net Neutrality video rather than actually asking the questions, but I was discouraged from doing so.
I do have a concern that if you start allowing the pipes to really
decide who gets to see what, you end up sort of cablizing the Internet in a way that is not the way we have had the Internet. I met
with Vint Cerf last week out at Google. You know, the Internet is
to be free. It has always been that way, and it has only been
threatened recently.
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Do you think the concern about turning the Internet into cable
is overblown, Professor?
Ms. CRAWFORD. No, I do not, Congresswoman. As I said, I think
we really stand at a turning point. A visual picture I often use is
that it is as if the sidewalk has gotten tired of being a sidewalk
and wants to rise up and take a little ca-ching and monetize the
conversations we are having, if they are particularly valuable or if
they think they can price discriminate with respect to that sidewalk.
As a society, we need basic infrastructure. We need to invest in
it. We need to move forward as a country with this basic infrastructure. Communications policy should be part of our industrial
policy and move us forward as a country. Net Neutrality is a central part. This is a Sputnik moment for us, and I think Vint Cerf
would agree that. Just as the fear of what was going on with the
Russians drove us to create the Internet, we have now got an internal Sputnik development which is our own market, powerful ISPs
controlling innovation on the Internet.
Ms. LOFGREN. I will just close by thanking all of the witnesses.
It was fun to talk to Mr. Kulash.
I did not get a chance to talk to you, Mr. Carnes. I appreciate
your coming all this way.
I also wanted to say something, Ms. Combs, to you because I respect that a conservative person such as yourself would say that
you agree with somebody with whom you completely disagree on
the issues to stand up for free speech. Doubtless, there are many
things on which we do not agree, but I really do respect that you
are here standing up for the first amendment here today. It is a
very honorable thing that you are doing. Thank you very much.
Mr. Keller.
Mr. KELLER. Thank you, Madam Chairwoman. Lets see.
Professor Crawford, you made the analogy about having one road
rather than the many-tiered system like at Disneyland, and you
caught my attention there since I represent Disney World in Orlando. So let me ask you a pretty basic question.
One of the concerns that has been raised is that ISPs want to
provide tiered service to consumers that utilize higher amounts of
bandwidth, and the DOJ in its comments to the FCC saidand I
will just quote itmandating a single uniform level of service for
all content could limit the quality and variety of services that are
available to consumers and discourage investment and new facilities, close quote.
Are you in favor of a tiered service or do you feel that a single
tier is always the best for consumers?
Ms. CRAWFORD. Lets be clear about our terms here, Congressman. I think that no one would disagree on the Net Neutrality side
that it makes sense to charge consumers for use of bandwidth and
that discriminating against consumers in that way seems appropriate. If you are using more, charge more. It is that business
model that our current ISPs do not want to move towards. What
I am against is the idea of discriminating against particular applications because of what they do or particular sources or the content
of packets. I am also personally concerned about trying to draw categories of applications and say, you know, with your video, you go
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at X speed; all video goes at that speed. Here is the problem with
drawing those categories.
The ISP is in the position of being the line drawer and will have
all kinds of new things that will appear in the world. We do not
want to give these very consolidated entities the power to decide
who falls in what category.
Mr. KELLER. All right. Professor Yoo, let me follow up with you.
You were at Vanderbilt at the same time I was at Vanderbilt, I see,
and you gave me a C in antitrust, and now I have some questions
for you. No. Just kidding. I did not take your classes when I was
there. They were too hard of classes. Let me begin with you, Professor Yoo.
If a broadband provider chooses to degrade certain content, do
consumers have other options to turn to for their broadband service?
Mr. YOO. I think the wireless option tells us yes. We have a
world in which that is a real possibility for the first time, and there
is wonderful data coming out of Europe and OECD that is looking
at the impact that nondiscrimination and access requirements have
on building out new networks, which is the real goal. We discovered that it is retarding it actually. If you look, it is correlated
when you have those sorts of access requirements. You get less new
broadband extended to new areas, and that is an enormous problem.
If I may, the one reaction I had to what Professor Crawford said
is that it is often said that the bloggers will be hurt by the fast
lane and the slow lane. What is fascinating to me is I actually
think that has it backwards. Creating a fast lane and a slow lane
is a way to protect the bloggers. Why? People who are just sending
text do not need the fast lane. It is the video that needs the fast
lane. If right now we are charging all a certain price, if we are
going to upgrade the network at all, we can either charge everyone
a higher price for the upgrade or we can create a tiered service
where the bloggers can still keep the price they are getting and
only charge the people who need the faster service for video for
what they are getting because this is a way to keep people like the
bloggers online, not to hurt them.
Mr. KELLER. Let me get back with you, but let me touch on the
piracy issue just a little bit, and then we will give both of our artists a chance.
Mr. Carnes, what is the relationship between online piracy and
network congestion?
Mr. CARNES. Well, I said previously that 5 percent of the users
on the Internet are using up 70 percent of the broadband network,
and 90 percent of that is illegal P2P, so congestion is actually piracy. You know, piracy is the disease, and network congestion is
just a symptom of that disease.
Mr. KELLER. All right. Mr. Kulash, I know that you got your big
break from the video that you showed, from the famous treadmill
video. Let me ask you:
Did you get that video on the first take or did that take a while?
Mr. KULASH. Take 13, sir.
Mr. KELLER. Take 13. All right.
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Tell me, since you are an artist whoobviously, I know you get
your revenue from at least some performance royalties. Do you
have concerns about preventing online piracy?
Mr. KULASH. Absolutely. You know, I believe, as every songwriter believes and as, I think, everyone believes, that musicians
should be paid for their work. I am certainly not advocating anything that I think will lead to piracy. The question is who is going
to build that new system for music distribution, for how we listen
to music, for how we get to make music. It seems to me that the
telcos are not the people I want building that system.
Mr. KELLER. Okay. Professor Crawford, you wanted to respond.
Ms. CRAWFORD. Just very briefly with a couple of empirical
points.
When we talk about competition from the wireless sector in this
country, we should remember that those companies are owned by
the same companies that control DSL access. Then we have a very
highly concentrated market when it comes to Internet access as a
whole. The same actors.
Also, on the video point, we need a larger principle moving forward for this entire discussion. We cannot focus ourselves on what
is going on with Internet video right now. We have got 100 years
ahead of us for Internet history, and we have to set the terms now.
Also, finally on the filtering point here, I think it will be, as Mr.
Kulash has said, inappropriate for the ISP to be the level where
filtering takes place. The content application providers can do this.
They will have some knowledge of who they are having license arrangements with, and they can respond to notices and take-down
procedures under the DMCA. We have set up this structure, and
it can work.
Thanks.
Ms. LOFGREN. The gentlelady from Florida.
Ms. WASSERMAN SCHULTZ. Thank you, Madam Chair. I want to
thank all of you for being here today and for helping us to tackle
this very thorny issue.
Obviously, everybody is concerned about the Internet and its ever
evolving status, and we want to continue to see it be a source of
innovation and a strength for our economy, which is a little bit
shaky right now. I supported network neutrality in the 109th Congress because I was really concerned that there was not enough
competition in the marketplace to start cornering off sections of the
Internet and adding a premium to the price of that section. I mean,
to me it made sense to do that, to prevent that from happening
through network neutrality so that you do not have ISPs striking
up deals in favor of one set of providers over another and limiting
the competition and making choices for consumers, because that is
counterintuitive to what the Internet is supposed to be.
You know, we are Members of this Antitrust Task Force, but we
are also Members of the Judiciary Committee, and we deal with
legislation related to crime as well. The concern that I have about
network neutrality is that you would never want to force ISPs to
actively ignore conduct that is unlawful or speech that they know
is unprotected. What I mean by that is piracy or child pornography.
I mean, I sponsored legislation that some of you may be familiar
with that would address the 500,000 known individuals in the
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United States who are trading and trafficking in child pornography
on the Internet. We are talking about images of young children
being raped and victimized. These are crime scene photos. Those
are being shared through peer-to-peer file sharing all over the
country every single day, and law enforcement knows who they are,
knows where they could find them, but they are just overwhelmed
and outnumbered.
The legislation that I sponsored and that was adopted unanimously out of this Committeeexcuse me, out of the Congress, not
unanimously. It was with two no votes. Let me be accurate. It
was designed to make sure that we could get those resources into
the system and go after people who are breaking the law and who
are going well beyond the bounds of speech. So the question that
I haveyou know, we want to include socially responsible behavior
from Internet Service Providers, but we want to make sure that
they manage their networks in such a way that they can eliminate
piracy and the spread of child pornography over peer-to-peer networks.
So that is a long preface to my question, and I would like any
of you to answer it.
How do we fashion principles that will continue Internet innovation but also will not prohibit corporations from addressing this
kind of unlawful activity or unprotected speech? Because I want
ISPs to be able to corner off access to that kind of peer-to-peer file
sharing. When they identify where these people are and can shut
off their access, I do not want network neutrality to prevent them
from being able to do that.
Ms. CRAWFORD. Congresswoman, if I could respond briefly, the
creation of child pornography is the most heinous behavior we
know of around the world. It is incredibly destructive. The closest
thing we have, actually, to a global norm is an abhorrence of child
pornography. We need to remember, though, that we are addressing two different thingsbehavior on the one hand and technology
on the other. The behavior of child porn creators we always prosecute, and we make sure we go after them. Fashioning technology
in advance to look for a particular flesh tone or for a particular action in a packet crossing an ISP network is going to be both incredibly difficult and probably destructive to some sense of innovation.
So here is my response to you.
The ISPs cooperate quite closely with law enforcement all the
time, and it is in facilitating that cooperation that we go after the
behavior without punishing the technology that makes so much
else that is good and positive in the world
Ms. WASSERMAN SCHULTZ. I can understand pursuing the behavior. We cannot just leave it to punishing the behavior here. We
have to make sure that you limit the market. If you limit access
to the market, the market will shrink, and the reduction in the
competitive exchange will cause less need for the market to be fed
by more crime.
Ms. CRAWFORD. I agree with you. I think it is just a question of
timing. I am saying that ISPs cooperate with law enforcement,
hear about what is going on and then act and then act to either
take off subscribers
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Ms. WASSERMAN SCHULTZ. But a child has already been victimized when you do it that way. We are talking about children who
are being raped
Ms. CRAWFORD. Right.
Ms. WASSERMAN SCHULTZ [continuing]. Children who are being
victimized. So waiting until after that has happened hurts children.
Ms. CRAWFORD. How could we do it before? How would you know
where the file was before this happened?
Ms. WASSERMAN SCHULTZ. Well, they already have the technology to know where the file is, to know the servers that are on
there. I mean, if we have the resources, they can go and findI
do not knowthe digital fingerprints. From what I understand,
they have the technology to lift those now and find them, and it
is only due to the lack of resources. Like I said, I am a proponent
of network neutrality, but I certainly am not a proponent of network neutralitys benefiting the promotion of illegal activity, and
after the fact is not okay when it comes to harming children.
Mr. CARNES. Congresswoman, basicallyI mean I am certainly
in total agreement that the illegal activity that is going on on the
Internet needs to have some cap, some control in some way. In
terms of Net Neutrality, they are talking about like having a level
playing field. That sounds really nice, but what we have got now
is not a level playing field. We have got a playing field that is tilted
just like you are saying. These people are overwhelmed. They cannot begin to control 500,000 different cases. The network is set up
right now tilted in favor of
Ms. LOFGREN. The gentleladys time has expired. I will turn now
to the former Chairman of the Judiciary Committee, Mr. Sensenbrenner, for 5 minutes.
Mr. SENSENBRENNER. Thank you very much.
Ms. Combs, I was interested in your comments about the blocking of a political message during a performance that was streamed
over the Internet and the analogy to the same type of blocking of
religious messages by the thought police in the Peoples Republic
of China.
Could you amplify a little bit more about how these actions were
similar?
Ms. COMBS. Do you mean the Pearl Jam concert?
Mr. SENSENBRENNER. Yes. Please turn your mike on or bring it
a little closer.
Ms. COMBS. Oh, sorry.
I just think they are both examples of discriminatory behavior on
the Internet because even though we as an organization do not
agree probably with what Pearl Jam was saying in their concert
Mr. SENSENBRENNER. Neither do I.
Ms. COMBS. No, but it is just an example of discriminatory behavior in that they did try to stop the concert, and we believe it
is the exact same discriminatory behavior that is being used by the
Chinese Government to block our message to getting to the Chinese citizens who would like to see and hear some of our messages
that we are trying to put out. We just do not want that to happen.
We are constantly sending out e-mail blasts. We are constantly getting our message out to our thousands of supporters across the
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country, and we do not want Comcast or Verizon or one of the large
companies to do that to our organization.
Mr. SENSENBRENNER. Well, as you know from my opening remarks, my interest in Internet neutrality has been more focused on
the antitrust and on the monopolistic aspects of nonneutrality than
the content that has been intercepted, jammed, blocked or whatever, because a free market economy, in my opinion, is based upon
healthy competition. America was the first country in the world to
pass antitrust laws, largely aimed at busting up the Standard Oil
trust. Those antitrust laws, I think, have worked fairly well to protect consumers in the United States, contrasted to antitrust laws
in Europe and elsewhere that are designed to protect competition.
That said, what do you think Congress should do to protect consumers such as those who wish to receive your message, whether
they be in the Peoples Republic of China or elsewhere, or somebody who wishes to get a brief political message from Pearl Jam?
Ms. COMBS. We just believe that every organization out there,
whether they be NARAL or the Christian Coalition or the ACLU
we do not believe that Comcast and Verizon and these companies
should have the ability to block our message.
Mr. SENSENBRENNER. Now, do you think that a better way to police that principle is through having the FCC or another Federal
agency regulate content on the Internet or by giving you or other
aggrieved parties the right to sue the ISP for treble damages if
they are engaging in monopolistic practices that prevent the people
who wish to receive your message from getting it?
Ms. COMBS. We just believe that there should be a free and open
Internet to all consumers and that they should have the right to
receive any e-mails coming from any organization.
Mr. SENSENBRENNER. My question, with all due respect, Ms.
Combs, is what is the best way to do it, because that is what the
debate is here in the Congress, whether we should be utilizing the
antitrust laws, which will get you some money if you end up being
aggrieved upon or having to go to the Federal Communications
Commission or to another agency to try to get them to say that
somebody broke the regulations.
Ms. COMBS. Right. I am not familiar with all of those laws. Is
it okay if Professor Crawford answers this question?
Mr. SENSENBRENNER. Okay. This is now a 50-yard punt.
Ms. Fredrickson.
Ms. FREDRICKSON. I think, with all due respect, Mr. Sensenbrennerwell, first off, I would also like to say that Ms. Combs
and Ithe ACLU and the Christian Coalitionhave worked together on many issues, not simply on Net Neutrality, so I wanted
to set the record straight on that. I think the issue here isthe
concern is that with all the many small players on the Internet, the
variety of content producers who are filming videos in their backyard or who are putting up their own Web sites or who are doing
things that are very small in scale but that can reach a very wide
audience, I think that the burden of trying to sue is a heavy one
to bear and that there should bewhatever the framework is,
there should be some neutrality principles that govern from the beginning, from the outset, that ensure that there is some level playing field.
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Mr. SENSENBRENNER. Okay. Thank you. My time has expired.
Ms. LOFGREN. The gentleman yields back.
The gentlelady from Texas is recognized for 5 minutes.
Mr. JACKSON LEE. I thank you very much, and I thank the presiding Chair, and I thank Mr. Conyers as well for this ongoing series of important discussions and debates about the utilization of
this technology and this question that is before us. Let me start.
First of all, I find it fascinatingand I think you are absolutely
right, Ms. Fredricksonthat I have seen the Christian Coalition
and the ACLU work together, and I think it is important to note
that the ACLU is known for finding the most prickly of adversaries
and for working with them. You are to be commended for it, seriously, that you circle the wagons around issues and not around the
views of others.
Ms. Combs, I am not suggesting in any way that you are prickly.
I do not want the record to reflect that, and it should not, because
I appreciate the advocacy for which you stand.
I am going to probe Professor Yoo to give him a fighting chance
to try to understand because the one thing I like about this task
force is that we try to strike a reasoned balance. I am moved, however, by the words of Professor Crawford in that the perspective
that she might take would foster more competition. You are arguing that you could promote competition by, in essence, having this
managed care system on the Internet. Help me understand that.
Mr. YOO. There are new technologies out there that do not operate like the old Internet technologies. We are used to thinking of
the Internets growing up in a telephone world. A person I had
mentioned earlier in this hearing, who was here during the vote,
is here. He is doing wireless broadband. His name is Brett Glass.
He represents a company called LARIAT from Laramie, Wyoming.
He is not one of the big existing players. Even among the big existing players, there are four wireless players. They depend on being
really smart about how they route their traffic so that, one, they
can provide the kind of services that consumers
Mr. JACKSON LEE. Let me stop you for a moment.
What you are suggesting is that a jammed-up system means nobody can get on to a certain extent?
Mr. YOO. Correct.
Ms. JACKSON LEE. So competition goes down because those who
you voice cannot manage access or content. It is overloaded?
Mr. YOO. It is a system that is overloaded. No one will use it,
and you will go out of business. You will lose your subscribers, and
you will go out of business. Being able to provide a quality service
that people will actually pay for instead of buying from one of the
existing options is what they need to survive.
Part of the way that wireless players are doing it is by figuring
out which applications are extremely time sensitive and by giving
them priority over the stuff where, if it waits for a second or two,
it will not be
Mr. JACKSON LEE. Give me an example which is time sensitive.
What would that be?
Mr. YOO. Voice or streaming video. If there is a hiccup in the
video, you will stop watching it. If your voice service has a delay
of a third of a second, the studies show you will stop using it.
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Mr. JACKSON LEE. That means a telephone by cable.
Mr. YOO. Yes, an Internet telephone, the IP telephony. There are
other examples. Virtual worlds like Second Life. Video online
games.
Mr. JACKSON LEE. So, Mr. Kulash, you consider him as having
the ability to wait?
Mr. YOO. It is interesting. What he is doing is a streaming technology that is actuallyyou can buffer it, and it is less sensitive
than realtime applications. In other words, when you launch
YouTube to download Mr. Kulashs video, it is running ahead of
where you are watching, and it is actually storing it, and it tends
not to be extremely sensitive. The things that are very sensitive
are games where you make a move or if you are talking
Mr. JACKSON LEE. And you need a response. That is what I am
saying. Mr. Kulash, in your view, could function and have a success
if he waited?
Mr. YOO. No. I am saying that the network is smart enough to
make sure that download applications like YouTube do not have to
wait in general. In fact, there are certain applications which can
use other situations to get around the waiting problem whether by
storing it locally or by giving it different means, but the networks
really
Mr. JACKSON LEE. I think I have got you. I see my time going.
Let me get right to the first amendment.
Is Professor Yoo pulling the wool over our eyes by what he is
suggesting? Because I think we should entertain the question of
competitiveness. How does Professor Yoos reasonable perspective
interfere with the first amendment?
Professor Crawford and then Ms. Fredrickson and Mr. Kulash.
Ms. CRAWFORD. Just very briefly, Congresswoman, given the
highly concentrated market we have right now for high-speed
Internet access, these gatekeepers are in the position of choosing
speech, of choosing winners and losers and of backing up. That is
the principle that we are worried about.
Ms. LOFGREN. Very quickly. The time has expired.
Ms. FREDRICKSON. Yes. In some ways, I was going to say that
there is a little bit of apples and oranges because I think, as Professor Crawford has already suggested, limiting access based on
bandwidth or on other nondiscriminatory means could be considered as a way of managing a network, but what really cannot be
allowed is doing so based on content.
Ms. LOFGREN. The gentleladys time has expired.
The gentleman from Utah is recognized for 5 minutes.
Mr. CANNON. Thank you, Madam Chair.
Mr. Carnes, you said earlier that 5 percent of the users are using
70 percent of the bandwidth and are downloading peer-to-peer material. My sense isand I do not know this, but I do a lot of
YouTube. I mean there is just some really interesting stuff on
there. We put up YouTube in my office. My sense is that those
numbers have changed. I ask that question because what I am
really going at is that it seems to me that the Internet and the nature of what we are doing on the Internet has been changing very
rapidly and that the rate of change is going to increase.
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So when were those numbers validated that you gave us, and are
they current or are they a couple of years old?
Mr. CARNES. Those are the most recent numbers I have.
Mr. CANNON. Was it like a couple of years ago or a year ago, do
you know?
Mr. CARNES. You know, I could not tell you exactly.
Mr. CANNON. Does anybody know? My sense is that there has
been a huge transformation as to how bandwidth is used.
Mr. Yoo.
Mr. YOO. Those numbers have been validated within the last 6
months from at least 5 sources. They vary, obviously. I have seen
50 to 80 percent. The most extreme number is 5 percent in 70 or
80, maybe as much as 1 percent in 50. If you take an even smaller
slice of it, it might be even more intense.
Mr. CANNON. Great. Is that all peer to peer and mostly pirating
or is the mix changing?
Mr. YOO. That number that we are talking about, 5 percent and
80, is peer to peer. The mix of peer to peer is 90 percent piracy.
So the vast majorityyou can do the math. 70-ish percent is piracy.
Mr. CANNON. Yes. Ms. Crawford, please.
Ms. CRAWFORD. Those uses are also changing, Congressman. We
are seeing a lot of use of BitTorrent for sending around security
patches for laptops. A lot of use of BitTorrent is for making sure
that developers stay in sync. It is a very efficient way of using the
network so that you are not depending on central servers and on
one piece of bandwidth. Everybody is sharing the bandwidth in the
storage.
Mr. CARNES. But you know, in the Grokster caseI think it was
in 2005the figure is almost exactly the same. It was still 90 percent illegal. So they may be doing more, but apparently the illegal
is growing, too. The ratio is still the same.
Mr. YOO. If I may, it brings up a wonderful question, though,
which is what is the future going to be? For the last 4 years until
the last year, peer to peer was outstripping downloads every year,
and it looked like that was the shape of things to come. Last year,
because of YouTube, downloads made a comeback, and they have
now passed peer to peer. The entire industry is staring at this.
Should we design our entire networks because peer to peer is the
answer or is YouTube the new thing? Even if we redesign it today,
what is the next thing coming down? It is important to understand
that it is extremely uncertain what you have to do right now.
There is more than $100 billion at stake. They are going to have
to make a gamble, and that is what they are paid to do.
Mr. CANNON. Just following up, when you say that they need to
make a gamble, you have got very different architectures out there,
and the gamble is gambling future investments in architectures
that are dissimilar. What is the effect of a mandate from government on those decisions about what architecture to choose?
Mr. YOO. In a free market economy you let business people take
chances. Some of them will work guaranteed; some of them will
not. Our normal system is to allow individual consumers through
their individual buying decisions to determine the winners and the
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losers and not to have a centralized authority, whether government
or private business, decide what that architecture is going to be.
Mr. CANNON. Yes, Ms. Crawford.
Ms. CRAWFORD. Just very briefly, the follow-up to that is that it
would be good if we had a functioning free market in Internet access, but we really do not in this country.
Mr. CANNON. Yes. One of the things I would like to see happen
is that we stimulate the possibilities of what that infrastructure
will be rather than our limiting the possibilities, because we have
seen an increase in the availability of bandwidth.
Yes, Mr. Carnes.
Mr. CARNES. From the songwriters perspective, we have had 10
years of dumb pipes as the Internet, and it has hurt us. We are
just hoping that an intelligent network can help us.
Mr. CANNON. One of the things I am hoping is that we can prosecute people who steal and then bring down the price enough so
that people are incented to do other things. Time Magazine had an
editorial on its last page about Rob Reids doing an experiment
with Rhapsody where he charges 25 cents per song. Instead of getting four songs, in other words, being equal, he got six songs sold
for the same. So the 25 cents per song resulted in a 50 percent increase in revenues, and I am hoping that people who have content
will sort of look at that model and will realize that by bringing the
price down two things happen. One is you get more revenue. Two
is why would you steal if you can pay a reasonably low price?
Along the lines of how we have a system that actually accommodates more movement, we have what I call the Super Bowl syndrome. If everybody downloads the Super Bowl over the same
pipesand in a neighborhood, you have got 300 households sucking the Super Bowl independently through the same pipeyou are
going to have a problem with speed. If you use a model like
Comcast and distribute that locally, then the backbone is not totally wiped out. In that environment, how we use the radio frequency, another spectrum, seems to be very important to me.
Are any of you familiar with the M2Z project? Does that give us
an opportunity to see how we can use bandwidth a little more effectively?
Mr. YOO. There are a number of fascinating projects underway,
and we have no idea which are going to work. There is a P4P
project that is going on. All of these different solutions are brewing
out there, and technology is going so fast that we do not ultimately
know which one is going to win. I would love to see a wonderful
battle between these different technologies unfold. The only way we
can allow that is if we give them breathing room to experiment
with new ways of doing business.
Mr. CANNON. Madam Chair, I recognize that my time has
passed, but I actually intended that question for Ms. Crawford. I
thought that she would have an answer. If she could have the time
to answer
Ms. LOFGREN. With unanimous consent, the gentleman is given
another minute so Ms. Crawford may respond.
Ms. CRAWFORD. Here is the point. Here is the point. We need a
playing field for innovation. That is the point of Network Neutrality. Keeping the conduit players as conduits does not limit our
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opportunities as a Nation for the future. All it is going to do is to
make sure that developers can attract investment because they can
predict the kind of Internet on which they will be able to run their
new applications. Right now we have uncertainty, which is clouding innovation, making it difficult to invest. Yes, we have to weigh
benefits and burdens to different populations. As a society, social
welfare will be served by a neutral Internet in a way that it will
not be served by making sure that these very few private companies are able to monetize the Internet in the way they would like.
Ms. LOFGREN. The gentlemans time has expired.
As you have noticed, we have been called for a vote on the floor
of the House, and we are out of questions for Members. So we will
be adjourning this hearing, with terrific thanks to each one of you.
A lot of people do not realize that our witnesses are volunteers and
that you are here just to help us do the right thing and to make
sure that our countrys future is protected. So we do very much appreciate your participation in this hearing.
This hearing is now adjourned.
[Whereupon, at 4:04 p.m., the task force was adjourned.]
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APPENDIX
MATERIAL SUBMITTED
FOR THE
HEARING RECORD
PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, TASK FORCE ON COMPETITION POLICY AND ANTITRUST LAWS
Thank you, Mr. Chairman, for your leadership in convening todays very important hearing on net neutrality and free speech on the internet. I would also like to
thank the ranking member, the Honorable Steve Chabot, and welcome our panelists. I look forward to their testimony.
This hearing could not be more timely, Mr. Chairman. Over the past few years,
the internet has become a dominant venue for the expression of ideas and public
discourse. The internet provides a powerful medium for its users to use their First
Amendment rights. From social networking to get-out-the vote drives, the internet
is a powerful tool for speech. Technological innovation on the internet has made it
among the most powerful outlets for creativity and free speech.
The internets importance in promoting free speech has caused proponents of net
neutrality to raise concerns that a lack of competition among broadband access provides allows providers to stifle and censor speech. In this hearing, the Judiciary
Committees Task Force on Competition Policy and Antitrust Laws will explore how
network neutrality principles, government enforcement of policies, and private business practices currently protect and inhibit the freedom of speech.
The term network neutrality is the term used to describe the concept of keeping
the internet open to all lawful content, information, applications, and equipment. It
refers to the fundamental architecture of the internet that allows for user-to-user
communications that are uninhibited and are not regulated based upon content. All
network content is to be treated equally under network neutrality.
The debate over net neutrality has arisen as broadband network providers became
increasingly vertically integrated. For example, cable companies began to expand in
the areas of television services, land-line phone lines, wire-less phone services, and
high-speed internet services. Questions arose over how the stratified communications legal regime would apply to new, conglomerated companies offering services
that traversed the regulatory law spectrum.
The concept of net neutrality has been supported by entertainment companies,
providers of internet-based applications, software companies, content providers, and
device manufacturers. These groups advocate argue that net neutrality fosters technology and innovation. These groups also argue that network providers have a clear
incentive to discriminate.
On the other hand, network service providers, i.e., the cable or telephone companies, claim that statutory mandated net neutrality undermines their ability to effectively manage their networks. Net neutrality has arisen as an issue for this Congress to address for several reasons.
First, there have been instances of broadband access providers blocking certain
content.
Second, Subcommittee Chairman Markey has introduced a net neutrality bill,
H.R. 5353, the Internet Freedom Preservation Act of 2008, which would require
the FCC conduct proceedings to assess whether broadband providers violate net
neutrality principles. H.R. 5353, also requires the FCC to hold eight public
broadband summits to assess competition, consumer protection, and choice related
to broadband.
Third, the FCC has begun considering complaints from entities claiming that the
broadband service providers have been violating the FCC net neutrality principles.
The FCC held its first public hearing on the issue in Boston on February 25, 2008.
The FCC indicated that it was ready, willing, and able to take action against improper practices.
(95)
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The internet has also allowed its users to have access to billions of people. The
internet can be used for communication or commerce. It is available to anyone with
access to the internet.
The internet has been used to get people to vote and as a means of communication
between organizations and their supporters. The internet is increasingly used for
the proliferation of mass media content to millions of people. As the internet becomes increasingly more accessible and important in the global marketplace, questions arise regarding the role the communication carriers and the internet service
providers should play in shaping the content they deliver to consumers.
Increasingly, there have been reports that internet service providers are limiting
various groups from accessing the internet based upon the content of the communication. One such example of abuse occurred with Verizon Wireless.
On September 27, 2007, the Associated Press broke the story that Verizon Wireless rejected requests from NARAL Pro-Choice America to use Verizons mobile network for text-messaging. Verizon temporarily barred NARAL from using a service
known as short code. Consumers generally receive text-messages on cellular telephones with traditional ten-digit phone numbers. When organizations transmit messages to their users ten-digit numbers, they rent shorter five and six digit numbers,
called short codes, from which to send and receive messages. Verizon denied
NARAL access to a short code that would have enable NARAL to contact its supporters with Verizon phones.
In its denial to NARAL, Verizon asserted that it did not accept text-messages
from any group seeking to promote an agenda or distribute content that, in its discretion may be seen as controversial or unsavory to any of our users. Amid mounting pressure against censorship from activist groups, Verizon discontinued its activities within days of the initial news report. This was not the first time that Verizon
has engaged in such conduct; there are other instances of content based blockages.
An abuse such as this would ordinarily correct itself in a typical, competitive marketplace because users dissatisfied with their service would switch providers. However, in a non-competitive marketplace, there are few options for change. Broadband
controls 96 percent of the U.S. residential market for high-speed internet access.
Most consumers have very limited choice in which company provides service. Net
neutrality advocate that without competition, providers will have both the power
and the influence to determine whether speech will happen.
The providers argue that net neutrality regulations would limit innovation and
technological advances because the presence of emerging technologies thwart discriminatory behavior. The providers argue that where censorship has occurred, like
that between Verizon and NARAL, those instances of censorship are quickly resolved without government intervention.
The providers also assert that the FCC already has jurisdiction to regulate the
internet and that the FCC has not intervened. The network providers argue that
net neutrality statutes would impede efficient network management strategies because the regulations will further complicate how the companies distribute their
limited amounts of bandwith among their different customers. The network providers argue that new regulation would negate the advancement and development
of new technologies and consumer technologies.
I welcome the panelists insight on this very time subject. Thank you, Mr. Chairman; I yield the remainder of my time.
f
RESPONSE
BY
RICK CARNES, PRESIDENT, SONGWRITERS GUILD OF AMERICA,

QUESTION FROM CONGRESSMAN BOB GOODLATTE
TO
The Songwriters Guild certainly welcomes your concern about the theft of billions
of copies of songwriter creations on the Internet each year. For the past six years,
I have come to Congress on numerous occasions to testify and meet with Members
on that very issue, and on the financial devastation that has occurred in the songwriting community due to music piracy. It is the sad truth, however, that, despite
widespread recognition of the problem, the piracy situation has only gotten worse.
In fact, we have now lost over half of the professional songwriters in America; Internet theft has simply made it impossible for many of us to earn a living practicing
our craft.
It is against this backdrop that SGA has been speaking out against enshrining
the often lawless structure that currently exists on the Internet. The Internet now
is in no way neutral, at least insofar as songwriters are concerned. In many cases
it has become no more than a playground for intellectual property thieves. In my
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view it will remain so if no one is allowed to manage the networks in a way that
identifies and filters pirated content.
With respect to Mr. Kulashs concerns, I would emphasize that SGA is far more
concerned at the moment with illegal content on the Internet and in encouraging
efforts and technological advances to alleviate that. If any ISP wants to filter illegal
files from its network in order to make that network safe for legal music, obviously
we strongly support that. However, we also do not object to sensible regulation that
would prevent discrimination between types of legal content, to the extent that such
discrimination is not already barred by current law.
f
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RESPONSE TO POST-HEARING QUESTIONS FROM CHRISTOPHER S. YOO, PROFESSOR OF

LAW AND COMMUNICATION AND DIRECTOR, CENTER FOR TECHNOLOGY, INNOVATION,
AND COMPETITION, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL
99
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100
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POST-HEARING QUESTIONS FROM SUSAN P. CRAWFORD, VISITING

ASSOCIATE PROFESSOR OF LAW, YALE LAW SCHOOL
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RESPONSE
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103
LETTER FROM LESLEE J. UNRUH, FOUNDER AND PRESIDENT, ABSTINENCE
CLEARINGHOUSE, ET AL. TO MEMBERS OF CONGRESS, DATED MARCH 10, 2008
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Net Neutrality and Free Speech On The Internet: Hearing

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NET NEUTRALITY AND FREE SPEECH

TASK FORCE ON COMPETITION POLICY

COMMITTEE ON THE JUDICIARY

MARCH 11, 2008

Serial No. 11095

For sale by the Superintendent of Documents, U.S. Government Printing Office

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10:51 Aug 01, 2008

COMMITTEE ON THE JUDICIARY

JOHN CONYERS, JR., Michigan, Chairman

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10:51 Aug 01, 2008

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

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10:51 Aug 01, 2008

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative

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10:51 Aug 01, 2008