December 15, 2003 - The DCIA responded to the letter of 11/12/03 from Senators Lindsey Graham, Dianne Feinstein, Richard Durbin, Gordon Smith, John Cornyn, and Barbara Boxer to Nikki Hemming, CEO of DCIA Charter Member Sharman Networks Ltd. (SNL) and other peer-to-peer software firm executives.
Here is the text of that letter.
December 15, 2003
Senator Lindsey O. Graham
Senator Dianne Feinstein
Senator Richard J. Durbin
Senator Gordon Smith
Senator John Cornyn
Senator Barbara Boxer
C/O United States Senate
Washington, DC 20510
Dear Senators Graham, Feinstein, Durbin, Smith, Cornyn, and Boxer:
We are pleased to forward to you the attached response to your letter of November 12, 2003 from Nikki Hemming, CEO of Sharman Networks, Ltd. (SNL), to whom it was directed c/o the DCIA (Distributed Computing Industry Association) here in Arlington, VA.
As you may know, SNL, a Charter Member of DCIA, conducts its operations from Sydney, Australia, under Australian registration, and is represented before Congress by Mr. Philip Corwin, Esq., of Butera & Andrews. While we are happy to serve as an intermediary for your request to one of our Members, in the future it might be more efficient for you to contact SNL directly.
At the same time, the questions you pose to SNL are also of more general applicability to our Members and industry, thus we are taking the liberty of sharing with you our thoughts – and our commitments – as a new trade organization whose mission is to commercially develop peer-to-peer (P2P) file-sharing and more advanced distributed computing applications.
Please also note that our charter calls for equal representation from platform companies (e.g., broadband ISPs), operating companies (e.g., P2P software firms), and content companies (e.g., music labels and publishers), and that we are actively seeking to bring all of these sectors into the DCIA so that the process of developing viable consumer-friendly new business models can move forward:
- DCIA will urge its P2P software company Members to continue educating consumers and specifically to review the clarity and sufficiency of their current communications to prospective users advising them that they risk infringing copyrights and being sued if they share content without proper authorization. We will urge them to enhance those communications to the extent they may not be clear, conspicuous, or meaningful.
We will also urge our prospective rights holding company Members to license their content for P2P distribution rather than withholding it from P2P, so that a marketplace solution can be achieved for the benefit of the huge body of consumers who prefer to obtain online digital material via P2P, for the benefit of rights holders who are entitled to compensation for the distribution of their copyrighted works, and for the benefit of P2P software companies who are making good-faith efforts to develop their technologies to accommodate rights holders’ needs.
- The issues of filtering copyright infringing and criminally obscene content are far more complex, both technically and legally, than to be properly subject to a simple commitment to implement effective filtering, though filtering may prove effective as part of larger solution(s).
We believe it is desirable to develop better software capabilities to identify and let users screen-out pornography without prior exposure to it by them, their children, or their employees. We also believe there is no principled or practical reason why a different standard should apply to any network-based technology (e.g., search engine, web site, instant messaging, or bulletin board). In fact, the threat from these other Internet applications is greater today and will remain greater in the future than from P2P. Our P2P software company Members have implemented strong parental control client-side software tools and are continuing to work with developers and law enforcement agencies to improve the ability of parents to protect their children and themselves from objectionable content.
Turning to infringement, your question suggests the development of software filters within P2P client software that could accurately identify unlicensed files and effectively block them as they are downloaded or uploaded. While no such P2P identification/blocking software currently exists, there is also the suggestion that P2P software developers should seek to impose such a result on end users. In client-side software, however, it is important to respect user choice and flexibility, for a variety of legitimate reasons.
It is important not only to acknowledge the severe limitations of currently-available client-based technologies that P2P software companies can employ for these purposes, but also to recognize that both the investment to develop more effective approaches and the architectural and policy solutions that will ensure their efficacy are beyond the reach of P2P software companies alone.
DCIA urges its Members to fulfill all copyright-related duties imposed on them by law and, beyond that, believes the best way to arrive at a balanced set of responsibilities and incentives is through mutual discussion and the negotiation of innovative business models, the very process for which DCIA was established.
Accordingly, we are in the process of publicly proposing business models for P2P music distribution, models that incorporate the identification and screening of traded files both to enable charging for the use of copyrighted content, and to reduce the traffic in content that is not authorized to be traded. We believe this process will yield one or more viable models that will benefit consumers as well as content owners and distributors, and we urge present and prospective Members to collaborate and develop technologies that will enable them.
We recognize that implementation of such technologies will require the participation of additional key industry sectors including ISPs, Internet backbone companies, software developers and equipment manufacturers; acceptance by the public; and undoubtedly the formulation of certain rules-of-the-road by Congress. Clearly, no P2P software company, nor even any individual industry sector, is in a position to unilaterally implement effective architecture-based filtering technology.
Conversely, there is growing recognition among industry leaders, observers, and policymakers that P2P is a highly efficient and beneficial technology esteemed by consumers -- that it is not inherently pernicious -- and that satisfactory progress in reducing infringement will require content owners to make their works available via responsible P2P distribution channels using consumer-friendly models.
- We believe that the current practices of our P2P software company Members with respect to clearly offering consumers the choice of uploading or not uploading files and otherwise providing advanced content security features are appropriate.
We will encourage our P2P software company Members to continue the enormous advancements they have made in protecting consumers from inadvertently sharing confidential data. We will urge them to continue incentivizing the sharing of licensed content only, though again this will become truly effective only as the major copyright holders consent to add their works to the mix.
We are particularly proud of the extraordinary responsiveness of the new P2P software technology firms in addressing a host of issues related to consumer protection that Congress has previously helped identify, including the provision of anti-virus software and, as noted earlier, family filters with password protection.
Finally, we thank your for the opportunity to clear the air on these important issues, and for your desire to understand clearly a complex and evolving set of issues of great importance to us all. Along the way, we are confident you will resist the rhetoric of fear that would equate abuses of P2P with the technology itself, and demonize the new P2P software firms working to develop it legitimately. We would welcome the opportunity to discuss these and related matters with you personally at your convenience.
Martin C. Lafferty