[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                    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. 110-95

                               __________

         Printed for the use of the Committee on the Judiciary


      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., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
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


                            C O N T E N T S

                              ----------                              

                             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..........................     1
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Florida, and Ranking Member, Task Force on Competition 
  Policy and Antitrust Laws......................................     3
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..........................     5
The Honorable Tom Feeney, a Representative in Congress from the 
  State of Florida, and Member, Task Force on Competition Policy 
  and Antitrust Laws.............................................     6

                               WITNESSES

Mr. Damian Kulash, Lead Vocalist and Guitarist, OK Go
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
Ms. Michele Combs, Vice President of Communications, Christian 
  Coalition of America
  Oral Testimony.................................................    15
  Prepared Statement.............................................    17
Mr. Rick Carnes, President, Songwriters Guild of America
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
Ms. Caroline Fredrickson, Director, Washington Legislative 
  Office, American Civil Liberties Union (ACLU)
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Mr. Christopher S. Yoo, Professor of Law and Communication and 
  Director, Center for Technology, Innovation, and Competition, 
  University of Pennsylvania Law School
  Oral Testimony.................................................    53
  Prepared Statement.............................................    56
Ms. Susan P. Crawford, Visiting Associate Professor of Law, Yale 
  Law School
  Oral Testimony.................................................    64
  Prepared Statement.............................................    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..     2
Prepared Statement of the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Ranking Member, 
  Committee on the Judiciary.....................................     4

                                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............    95
Response by Rick Carnes, President, Songwriters Guild of America, 
  to Question from Congressman Bob Goodlatte.....................    96
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........................................    98
Response to Post-Hearing Questions from Susan P. Crawford, 
  Visiting Associate Professor of Law, Yale Law School...........   100
Letter from Leslee J. Unruh, Founder and President, Abstinence 
  Clearinghouse, et al. to Members of Congress, dated March 10, 
  2008...........................................................   103


                    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, Incorporated's 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 1\1/3\ billion people use the Internet, which is 
approximately 20 percent of the world's 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-
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 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 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 today's 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 don't 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 Internet--that is almost twenty percent 
of the world's population.
    In the last seven years alone, the worldwide use of the Internet 
has jumped 265 percent.
(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 today's 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 don't 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.
    Let's 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 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 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 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&T's 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.
    Experience suggests not. Both the Department of Justice's 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 company's 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 speech--in the form of 
copyrights--to preserve individual's 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 
materials--particularly those that exploit children--should 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 don't 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 can't 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 you'll 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.
    Mr. Conyers. Thank you, sir. Ric Keller, have you a 
comment?
    Mr. Keller. No, I don't, 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 
Members--I am sorry--Mr. 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 don't 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 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 don't 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 don't 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 something--let 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 is--let 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 is--a 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 people's weddings, in the 
middle of Wal-Mart. That right there, that is my backyard. They 
blue screen themselves into my backyard. We have--we 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 arm's length from 
your fans, but here we were connected 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 sister's 
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 figured--we 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 been--this 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 views--I 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 don't think they need to look any 
farther than us. We are musicians and we are part of the music 
industry. I don't think there is really anyone out there who 
wants to see this business flourish more than we do. I am here 
today representing Future Music--excuse me--the Future of 
Music's 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 don't 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 don't 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:]

                  Prepared Statement of Damian Kulash













    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 that--oh, and President George Bush's 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 be--should 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 Nation's biggest phone and 
cable companies 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 you--the 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 
consumer's ability to download the King James Bible using a 
popular file sharing technology. And it is also pointed out 
that Comcast's discriminatory content just so happens to block 
access to video distribution applications that compete with 
Comcast's 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:]

                  Prepared Statement of Michele Combs









    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 Songwriter's 
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 songwriter's 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 they'd 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.
    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:]
                   Prepared Statement of Rick Carnes








    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 Court's ruling in 
Brand X, and FCC inaction in addressing increasing censorship 
by broadband Internet service providers or ISPs are key factors 
in today's 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 Internet's 
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 ISP's 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 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 won't 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 one's 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 ISP's 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:]

              Prepared Statement of Caroline Frederickson

















































    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 is--the 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 Nation's 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 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 lion's 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 FCC's 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 communications that characterize the 
telephone system, but rather the one-to-many communications 
that characterizes the Internet.
    The flood of Internet content--in 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 Coalition's 
position in this--before 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 Internet's tremendous 
potential in the future. Thank you.
    Mr. Conyers. Thanks so much.
    [The prepared statement of Mr. Yoo follows:]

                Prepared Statement of Chrisopher S. Yoo

















    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, for-profit 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 Verizon's 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 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 Yoo's 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 don't want to be gravel pits. They 
don't 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 SEC's 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 America's 
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:]

                Prepared Statement of Susan P. Crawford

























    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 isn't?
    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. Isn't 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 shouldn't 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 leave--make one point at this 
point is that I do believe that the competitive market can work 
here in ways that are unappreciated. The Chairman--you 
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 subscribers 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. Fredrickson's 
remarks. We did this successfully in the '60's. 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, isn't it mutually beneficial--and 
practically speaking, consumers cannot access content without a 
network, and a network serves no purpose without content to 
distribute and consumer 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 big--having 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 things--if 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 2\1/2\ 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 by--
I have always supported a case-by-case analysis instead of 
saying this is not a problem and it should go away, but 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.
    Ms. Lofgren. The gentleman yields back.
    I have, really, a question. I was interested--I 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 Comcast's 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 Go's success on YouTube. 
YouTube is not a peer-to-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.
    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. Let's 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 
said--and I will just quote it--mandating 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. Let's 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 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.
    Tell me, since you are an artist who--obviously, 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 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 Committee--excuse 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 have--you 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 things--behavior 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----
    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 
find--I do not know--the 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 neutrality's benefiting the promotion of 
illegal activity, and after the fact is not okay when it comes 
to harming children.
    Mr. Carnes. Congresswoman, basically--I 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 gentlelady's 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 
People's 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 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 People's 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. 
Sensenbrenner--well, first off, I would also like to say that 
Ms. Combs and I--the ACLU and the Christian Coalition--have 
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 is--the 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 be--whatever 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.
    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 fascinating--and I think you are 
absolutely right, Ms. Fredrickson--that 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 Internet's 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.
    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 actually--you can buffer it, and it is less 
sensitive than realtime applications. In other words, when you 
launch YouTube to download Mr. Kulash's 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 Yoo's 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 gentlelady's 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 is--and 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.
    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 majority--you 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 case--I think it 
was in 2005--the 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 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 songwriter's 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 Reid's 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 
pipes--and in a neighborhood, you have got 300 households 
sucking the Super Bowl independently through the same pipe--you 
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 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 gentleman's 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 country's 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.]


                            A P P E N D I X

                              ----------                              


               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 today's 
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 internet's 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 Committee's 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.''
    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 
Verizon's 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.

                                

 Response by Rick Carnes, President, Songwriters Guild of America, to 
                Question from Congressman Bob Goodlatte

    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 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. Kulash's 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.

                                

 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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