[p2p-hackers] Seth Johnson: Request for the P2P Workshop at the FTC

Tue Nov 16 22:28:27 PST 2004

Below is my request to participate in the FTC's Workshop on "P2P
Filesharing," details of which may be found at:

> http://www.ftc.gov/bcp/workshops/filesharing/index.htm
> http://www.ftc.gov/os/2004/10/041015p2pfrn.pdf

Seth

---

Request to Participate

Federal Trade Commission
Peer to Peer Filesharing Workshop

Including Comments and Recommendations

Seth Johnson

I have been a developer of database software since the 1980's,
and presently offer professional consultancy services in
information quality improvement. My clients have included the
Illinois Department of Agriculture, Sony Music, Bertelsmann, and
Affinity Health Plan.  I am also an advocate and organizer in
areas of information freedom. Working with New Yorkers for Fair
Use and other groups, I have worked to promote the interests of
innovation in information technology for many years, including
such areas as patent policy at the World Wide Web Consortium,
content control in the broadband Internet, the broadcast flag,
software patents, and other issues.  At the Internet Commons
Congress in March 2004 (http://www.nyfairuse.org/icc), I worked
with Daniel Berninger, New Yorkers for Fair Use and others to
bring together advocates for many different areas so that they
could better coordinate their activities and concerns.

A matter of some concern regarding the FTC's workshop on "P2P
filesharing technology" arises from its usage of the term "P2P"
or "peer to peer." Observing that Napster's centralized data
servers were a legal target, some Internet users declared that
the use of a central server was unnecessary, because the
decentralized architecture of the Internet was inherently not
subject to the legal theory behind the charges levied against
Napster. As a result, downloadable applications like KaZaA,
Grokster and Gnutella took on the label "P2P" to distinguish them
from Napster, when in fact the ability for any computer to
directly communicate with any other is built into the Internet
infrastructure. In addition, the facts that these applications
allowed users to open up access to their directories, and that
they presented lists of files which users could select to
initiate transfers, have often obscured the fact that the
applications themselves do not transfer the files, and that the
ability to give other users access to local directories is a
feature built into ordinary operating systems.

This is why "P2P filesharing" is not an appropriate name to
describe these applications. These applications simply provide
the same function that Napster provided with a centralized
server: the ability to find files on the Internet. They are
decentralized search engines. They do not perform the file
transfers and they do not themselves make peer to peer possible.
They allow users to implement a search engine that is distributed
across many machines, and the Internet itself does the rest.

The description of "P2P filesharing applications" presented in
this workshop's call for participation offers nothing to
distinguish KaZaA, Grokster or Gnutella from the basic functions
of the Internet and ordinary, generally used operating systems.
It also makes no mention of the core functionality that these
applications actually do provide: search and discovery of the
locations of files. Sharing files among a group of users is a
basic network capability that operating systems and networks
already provide.

Among the goals presented by the FTC for this workshop are
learning about P2P, including how it works, and discussing
self-regulatory, regulatory, and technological responses to a set
of risks which the workshop associates with these
consumer-friendly decentralized search engines. I suggest that
the testimony of those who designed the Internet and those who
exercise its basic functions as a matter of their daily
productive lives, will provide a stronger framework for
understanding the real nature of these risks. One name that
should be recommended is David Reed, one of the original
architects of the underlying infrastructure of the Internet. He
is well-prepared to comment on the relationship between the
architecture of the Internet and the capacities for innovation
for which it provides. Another name that might be considered is
Bram Cohen, the author of BitTorrent.

A cursory survey of Sourceforge.net will show a great variety of
projects whose authors can testify to their dependence on the
peer to peer architecture of the Internet, and to the fact that
accessing and distributing of files among peers is an unalterable
component of their work.  The participation of voices
representing development projects such as these is a critical
consideration for this workshop.

Discussion of consumers' private interests should not be confused
with copyright issues. Even greater risks ensue when discussions
of filters, privacy, security, adware, viruses, exposure to
undesirable material and impairments of computer function are
mixed with copyright issues. The result of addressing copyright
concerns in the manner of protecting private consumer interests
can only be that both copyright and innovation will suffer.
Technological developments that affect the capacity of
individuals to publish, use, and develop new uses for information
will often signal new issues for copyright policy, issues which
touch on areas that are necessarily out of the scope of the FTC's
mandate for rulemaking or promulgating norms.

In particular, among the risks mentioned in the workshop's call
for participation is that of exposure of end users to liability
to charges of copyright infringement. Addressing this risk within
the conceptual framework that the call for participation appears
to exhibit, and in terms of the kinds of responses that it cites
for consideration, can reasonably be expected to lead to a very
limited understanding and an encouragement of prescriptive
responses that are not well-advised.

More fundamentally, addressing copyright issues within this
conceptual framework will result in owners of computers and
makers of applications losing their capacity to develop and make
use of their computers and the communications infrastructure.

It may be that the structure that the workshop will eventually
take is to some extent exhibited in the questions presented in
the call for participation and the way it contemplates certain
risks with regard to consumers' use and understanding of the
features of decentralized search applications. Inasmuch as this
is true, it would be advisable to adjust the structure of the
workshop to more precisely reflect the nature of the subject
matter. The scope of the questions should also be expanded and
adapted to admit a proper examination of the relationship of the
risks to the nature of the technology and the interests of
flexibility and innovation; and I would urge the FTC to adapt the
conceptual framework and format of the workshop to reflect this
purpose more greatly.

Opportunity should be provided to describe the architecture of
the Internet and how it fosters innovation, and to more precisely
define the nature of the applications that are the focus of the
workshop.  The set of questions on uses of "P2P filesharing"
technology should be expanded to admit testimony of those who
develop Internet applications.

The questions listed in the set addressing the impact of "P2P
filesharing" on copyright holders would in fact warrant an
extensive process of public inquiry in themselves.  Many of these
questions address areas that do not pertain specifically or
solely to the consideration of the impact of peer to peer
technology on copyright holders.  The FTC would be well advised
to report on the areas alluded to by these questions separately
and extensively.

The sets of questions addressing identification and disclosure of
risks to consumers should be adapted so that the nature and
source of the risks are not misconstrued, and so that a more
encompassing understanding of the sources of the risks and of
prospective solutions can be developed. The questions as a whole
exhibit a narrow focus on a set of applications whose
characteristics are not properly recognized and understood. The
set of questions addressing technological solutions should be
decoupled from a narrow focus on specific applications that
provide decentralized search capabilities, and should be expanded
to admit a broader analysis.

The solutions currently identified in the call for participation
do not appear to provide for a well-designed response to the full
scope of risks and implications elicited by this workshop's areas
of consideration.  One major source of these risks that some will
mention is the undue influence on the market and on copyright
policymaking of interests such as market dominant software
manufacturers, publishers and the recording and motion picture
industries.  Monopoly interests in the operating system arena in
particular interfere severely with consumers' access to,
understanding of and choices with respect to software that can
provide far more robust protections than they generally make use
of presently.

I would greatly appreciate the opportunity to participate in this
workshop as a panelist.  I also offer to help in advising as to
the structure of the workshop and appropriate participants.
Above I have mentioned David Reed and Bram Cohen.  Voices I can
mention in particular as offering constructive and appropriate
insight for this proceeding include the following.  I mention
them in many cases without specific knowledge of their interest
in participating, or of their having actually requested to
participate:

Jay Sulzberger, New Yorkers for Fair Use, jays at panix.com
Brett Wynkoop, Wynn Data Limited, wynkoop at wynn.com
Michael Smith, LXNY, mesmith at panix.com
Miles Nordin, Developer/Systems Administrator, carton at Ivy.NET
Dan Berninger, Technology Analyst, dan at danielberninger.com
Adam Kosmin, WindowsRefund.net, akosmin at windowsrefund.net

Andrew Odlyzko can provide rigorous empirical analysis and data
that are highly pertinent to the subject areas addressed by this
workshop:

Andrew Odlyzko, University of Minnesota, odlyzko at dtc.umn.edu

The following are just a few people who can represent specific
development projects:

Kevin Marks, MediAgora, kmarks at mac.com
Lucas Gonze, Webjay, lgonze at panix.com
Bram Cohen, BitTorrent, bram at bitconjurer.org

The following are good leading voices who would make significant
contributions to this workshop:

David Reed, SATN.org, dpreed at reed.com
Bob Frankston, SATN.org, rmfxixB1 at bobf.frankston.com
David Isenberg, "The Stupid Network," isen at isen.com
Richard Stallman, The GNU project, rms at gnu.org
David Sugar, Free Software Foundation, dyfet at gnu.org
Fred von Lohmann, Electronic Frontier Foundation, fred at eff.org
Gigi Sohn, Public Knowledge, gbsohn at publicknowledge.org
Robin Gross, IP Justice, robin at ipjustice.org
Chris Hoofnagle, Electronic Privacy Information Clearinghouse,
hoofnagle at epic.org
Nelson Pavlosky, Free Culture, npavlos1 at swarthmore.edu

Thank you,

Seth Johnson
Committee for Independent Technology

(SNIP Contact Information)

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Here is a web page listing P2P Conferences:
http://www.neurogrid.net/twiki/bin/view/Main/PeerToPeerConferences

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