Testimony of Donna Hoffman -- professor, Vanderbilt
University
March 22, 1996
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
- - -
AMERICAN CIVIL LIBERTIES : CIVIL ACTION NO. 96-963-M
UNION, et al :
Plaintiffs :
:
v. : Philadelphia, Pennsylvania
: March 22, 1996
JANET RENO, in her official :
capacity as ATTORNEY GENERAL :
OF THE UNITED STATES, :
Defendant :
. . . . . . . . . . . . . . . .
HEARING BEFORE:
THE HONORABLE DOLORES K. SLOVITER,
CHIEF JUDGE, UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
THE HONORABLE RONALD L. BUCKWALTER
THE HONORABLE STEWART DALZELL
UNITED STATES DISTRICT JUDGES
- - -
APPEARANCES:
For the Plaintiffs: CHRISTOPHER A. HANSEN, ESQUIRE
MARJORIE HEINS, ESQUIRE
ANN BEESON, ESQUIRE
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
-and-
STEFAN PRESSER, ESQUIRE
American Civil Liberties Union
123 S. 9th Street, Suite 701
Philadelphia, PA 19107
-and-
For the ALA BRUCE J. ENNIS, JR., ESQUIRE
Plaintiffs: ANN M. KAPPLER, ESQUIRE
JOHN B. MORRIS, JR., ESQUIRE
Jenner and Block
601 13th Street, N.W.
Washington, DC 20005
- - -
2
APPEARANCES: (Continued)
For the Defendant: ANTHONY J. COPPOLINO, ESQUIRE
PATRICIA RUSSOTTO, ESQUIRE
JASON R. BARON, ESQUIRE
THEODORE C. HIRT
Department of Justice
901 E. Street, N.W.
Washington, DC 20530
-and-
MARK KMETZ, ESQUIRE
U.S. Attorney's Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
- - -
Also Present: MICHAEL KUNZ
Clerk of the Court for the
Eastern District of Pennsylvania
- - -
Deputy Clerks: Thomas Clewley
Matthew J. Higgins
Audio Operator: Andrea L. Mack
Transcribed by: Geraldine C. Laws
Grace Williams
Tracey Williams
Laws Transcription Service
(Proceedings recorded by electronic sound recording;
transcript provided by computer-aided transcription service.)
3
1 (Whereupon the following occurred in open court at
2 9:30 o'clock a.m.:)
3 CLERK OF COURT KUNZ: Oyez, oyez, oyez, all manner
4 of persons having any matter to present before the Honorable
5 Dolores K. Sloviter, Chief Judge of the United States Court
6 of Appeals for the Third Circuit, the Honorable Ronald L.
7 Buckwalter and the Honorable Stewart Dalzell, Judges in the
8 United States District Court in and for the Eastern District
9 of Pennsylvania may at present appear and they shall be
10 heard.
11 God save the United States and this Honorable Court.
12 Court is now in session, please be seated.
13 JUDGE SLOVITER: Good morning.
14 JUDGE DALZELL: Good morning, everyone.
15 JUDGE SLOVITER: We have no preliminary, anything?
16 JUDGE DALZELL: I don't think so.
17 JUDGE SLOVITER: So we'll proceed with plaintiffs'
18 case.
19 MR. HANSEN: Good morning, your Honors, the
20 plaintiffs call Professor Donna Hoffman.
21 THE COURT CLERK: Will you please state and spell
22 your name?
23 THE WITNESS: Donna L. Hoffman, D-o-n-n-a L.
24 H-o-f-f-m-a-n.
25 THE COURT CLERK: Please raise your right hand.
4
1 DONNA L. HOFFMAN, Plaintiffs' Witness, Sworn.
2 THE COURT CLERK: Thank you, please be seated.
3 MR. HANSEN: Your Honors, I'd move into evidence the
4 declaration of Professor Hoffman which was signed on March
5 15, 1996, and previously filed in this court as her direct
6 testimony.
7 JUDGE SLOVITER: Is there any objection from the
8 Government?
9 MR. BARON: Yes, we object, your Honor.
10 THE COURT: Okay, then you better come forward and
11 tell us why.
12 MR. BARON: I'd appreciate the opportunity for voir
13 dire.
14 JUDGE DALZELL: Oh, well, certainly to the extent
15 you object, to the extent of you wanted some voir dire?
16 MR. BARON: Yes.
17 JUDGE DALZELL: Okay. Mr. Hansen, I was curious
18 myself. Dr. Hoffman is offered as an expert in what area?
19 It doesn't say in her declaration.
20 MR. HANSEN: I apologize, your Honor. Dr. Hoffman
21 is an expert in the marketing aspects of cyberspace and the
22 nature of cyberspace as it relates to marketing and usage.
23 JUDGE DALZELL: Okay. So that would be in the
24 marketing of cyberspace and --
25 MR. HANSEN: And the nature of cyberspace.
5
1 JUDGE DALZELL: The nature of cyberspace. Okay, by
2 all means, Mr. Baron.
3 JUDGE SLOVITER: Excuse me just for a minute.
4 (Discussion off the record.)
5 MR. BARON: Good morning, your Honors.
6 JUDGE DALZELL: Good morning.
7 MR. BARON: Good morning, Professor Hoffman.
8 THE WITNESS: Good morning.
9 CROSS-EXAMINATION
10 BY MR. BARON:
11 Q Your expertise is as a Professor of Marketing, is it not?
12 A Yes, I'm a Professor of Management in the Marketing
13 Division at the Owens School at Vanderbilt University.
14 JUDGE SLOVITER: Mr. Baron, we know who you are but
15 because it's a new day's tape, maybe you should tell the
16 tape.
17 MR. BARON: O for two on that. Yes, my name is
18 Jason R. Baron, B-a-r-o-n, U.S. Department of Justice. Than
19 you, your Honor.
20 BY MR. BARON:
21 Q Professor Hoffman, you study strategic implications of
22 commercializing new communications media, do you not?
23 A Yes.
24 Q Your CV which is I believe Plaintiff's Exhibit 1 in this
25 case lists no peer reviewed references concerning empirical
6
1 studies or surveys that you have conducted on the amount of
2 pornography on the Internet, is that right?
3 A Yes, that's correct.
4 Q Nor are there any references on your CV to any surveys at
5 all that you have conducted on the Internet, correct?
6 A There's no peer reviewed published studies of any surveys
7 yet, that's correct.
8 Q Or non-peer reviewed?
9 A Yes.
10 Q Studies that you have conducted?
11 A Right, not yet, that's -- we're in the process of a paper
12 right now but it is not submitted for peer review.
13 Q Your CV doesn't contain any references to studies you
14 have done concerning the extent of pornography in
15 communication media other than the Internet, is that correct?
16 A That's correct.
17 Q In fact, as you stated in your deposition this past
18 Monday, you are not interested in pornography as a research
19 area, correct?
20 A Yes, that's correct.
21 Q Would you turn to Paragraph 122 of your declaration which
22 has been submitted in this action?
23 A Yes.
24 Q You state in this declaration that it is your, quote,
25 "impression," unquote, that there is a decreasing percentage
7
1 of the material in cyberspace that is sexually explicit, is
2 that correct?
3 A Yes.
4 Q Let me turn to your deposition of Monday at Page 185. In
5 response to a question, this was starting around Line 13, in
6 response to my question asking you that you will say that it
7 is your impression regarding the amount of sexually explicit
8 material in cyberspace, you answered: "Based on my own
9 experience," this is Line 15, "and observation and the
10 experience and observations of others who are Net veterans,
11 that is the conventional wisdom."
12 Question: "You're relying on conventional wisdom to
13 make those observations?"
14 Answer: "Yes, and experience."
15 Question: "And experience?"
16 Answer: "Yes."
17 Question: "Including your experience in looking at
18 particular sites on the Net?"
19 Answer: "Right."
20 Question: "But not in a systematic matter?"
21 Answer: "Correct."
22 Question: "Not in a scientific sample?"
23 Answer: "Right. And using -- that's correct,
24 that's right."
25 Question: "These are impressions?"
8
1 Answer: "These are impressions."
2 Question: "Unquantified?"
3 Answer: "Unquantified."
4 Did you state that testimony?
5 A Yes, I did. And I --
6 MR. BARON: Thank you.
7 MR. HANSEN: Your Honor, I'd like the witness to be
8 able to finish her response to that question. I believe she
9 thought that the question required or the answer required
10 elaboration.
11 JUDGE DALZELL: Go ahead.
12 THE WITNESS: I've been studying the strategic
13 marketing implications of commercializing emerging media like
14 the World Wide Web on the Internet since 1983. I've been co-
15 director of a sponsored research center since 1994, so for
16 the past three years I've been studying activity on the World
17 Wide Web.
18 One of the papers that we have written, the
19 commercial scenarios paper, "Opportunities and Challenges"
20 which is published in a peer review journal, examines all of
21 the commercial Web sites for the purpose of categorizing
22 them. In the process of preparing that paper and all the
23 other papers that we have published I have extensive
24 experience surfing the Web both professionally and personally
25 and my impressions are based on that professional experience.
9
1 JUDGE SLOVITER: Excuse me, don't --
2 JUDGE DALZELL: Yes, you can sit back. You don't
3 need to get close to the microphone, it's extremely
4 sensitive.
5 THE WITNESS: Sorry, okay.
6 BY MR. BARON:
7 Q Professor Hoffman, have you published any article on the
8 subject of anonymous remailing on the Internet?
9 A No.
10 Q Have you conducted any studies on anonymous remailing on
11 the Internet?
12 A No.
13 MR. BARON: Your Honors, I would submit at this time
14 that Professor Hoffman is an expert with respect to the
15 commercialization of the Net and marketing questions.
16 However, to the extent she presents testimony today on her
17 impressions regarding pornography on the Internet, they are
18 as a lay person and not as an expert.
19 JUDGE DALZELL: All right, well, that point is noted
20 and I'm sure you'll develop it further in your cross-
21 examination of Dr. Hoffman.
22 MR. BARON: Thank you.
23 JUDGE DALZELL: But I take it, based on what you
24 said, you do not dispute that she is qualified as an expert
25 in the marketing of cyberspace and the nature of cyberspace,
10
1 at least commercial cyberspace?
2 MR. BARON: We don't dispute that. Let me make it
3 very specific. When I objected to her declaration, parsing
4 the declaration in terms of the area of her expertise and the
5 area that she's giving lay testimony we would submit that
6 Paragraphs 114 through 132 of her declaration are not expert
7 opinion.
8 JUDGE DALZELL: 114 through 132. Well, you can
9 certainly develop that in detail in your cross-examination if
10 you'd like, but I see your point.
11 MR. BARON: Thank you, your Honor.
12 JUDGE DALZELL: Right.
13 BY MR. BARON:
14 Q Good morning, Professor Hoffman.
15 A Good morning.
16 Q You have studied the Internet from a marketing
17 perspective, correct?
18 A Yes, from a marketing perspective and from a
19 communications perspective.
20 Q And you specifically studied the commercialization of the
21 Net, correct?
22 A One of my research interest has to do with the
23 commercialization of the World Wide Web on the Internet,
24 that's correct. Another one of my research interests has to
25 do with how consumers behave in this environment and how
11
1 people communicate in this environment.
2 Q And you've coined a few terms along the way, have you
3 not?
4 A Yes.
5 JUDGE DALZELL: Not acronyms, I hope.
6 THE WITNESS: No -- well, sort of.
7 (Laughter.)
8 MR. BARON: In part, your Honors, in part.
9 BY MR. BARON:
10 Q Would you turn to Page 25 -- sorry, Paragraph 25 of your
11 declaration and could you please explain to the Court what
12 you are referring to by the term in italics, "Hyper media
13 computer mediated environment (CME)"?
14 A The term "hyper media computer mediated environment,
15 which I agree is a mouthful, which is why we've shortened it
16 to CME which is much easier to say has to do with the idea of
17 defining a new medium like the World Wide Web on the Internet
18 as a communications medium in which people can both provide
19 an access, multi-media content that is also hyperlinked.
20 So in other words, from the demonstration we saw
21 yesterday, the information that's available on the Webpage is
22 what we would call hypermedia because there's sound
23 information there, there's textual information there, there's
24 information contained in the context of these hyperlinks or
25 hot links and all of this information is available in what we
12
1 call a distributed computer environment.
2 So it's an environment in which people can
3 communicate with each other but that communication is
4 mediated or takes place through a computer. So that's the
5 context or the sense in which we mean computer mediated
6 environment or CME because it's designed to illustrate the
7 idea that when people are communicating, the communication is
8 through the computer or when they're providing content
9 through the medium, that computer mediates the content or
10 mediates the way they access the content. So, for example,
11 the point and click with the mouse movement or putting the
12 information on the computer.
13 Q Would one example of sound on the Internet be Internet
14 Talk Radio?
15 A Yes, that would be one example of audio or sound. Now--
16 Q And what's your understanding of Internet Talk Radio?
17 A Well, in a -- in a non-technical sense?
18 Q Yes.
19 A My understanding of Internet Talk Radio is that it is an
20 application which is very much like radio but is served up or
21 facilitated in a computer environment so that information is
22 stored on someone's computer which is in the context of sound
23 and then a person can click on a link which has to do with
24 that talk radio and then listen to whatever has been
25 programmed by someone.
13
1 Q Thank you. If you could turn to Paragraph 44 of your
2 declaration, you have in italics the term "Telepresence
3 View," unquote, of mediated communication. Could you inform
4 the Court what you're referring to there?
5 A Yes. First I should say I did not invent the term
6 "telepresence," that was attributed to Jonathan Steuer who
7 wrote his doctoral dissertation at Stanford on that topic.
8 However, it's a very interesting concept and the idea is that
9 there are two different ways that people can perceive that
10 they're in an environment. One way is what we might call the
11 presence view, in other words, I perceive that I am in this
12 physical environment and so I have a presence of being here.
13 The other way is that I can have a telepresence view, in
14 other words, I can have a perception that I am in the
15 mediated environment, in other words, that I am involved in
16 what's happening on the World Wide Web. And both of those
17 perceptions can take place when people are interacting in a
18 computer-mediated environment like the World Wide Web.
19 Q Could you also turn to now Paragraph 73 of your
20 declaration, that's on Page 17, and --
21 A I'm sorry, would you repeat the paragraph, please?
22 Q Paragraph 73.
23 JUDGE DALZELL: Page 17.
24 BY MR. BARON:
25 Q And inform the Court what you mean by the concept of,
14
1 quote, "flow," f-l-o-w, unquote, in terms of an individual's
2 experience on the Net.
3 JUDGE DALZELL: Why don't you put on that light, Mr.
4 Hansen, so she can see better? That little light.
5 JUDGE SLOVITER: The thing under the green.
6 JUDGE DALZELL: Known as a lamp.
7 (Laughter.)
8 JUDGE SLOVITER: It's very old-fashioned.
9 JUDGE DALZELL: L-a-m-p stands for nothing.
10 (Laughter.)
11 MR. BARON: Don't be so sure, your Honor.
12 (Laughter.)
13 JUDGE DALZELL: Touche.
14 THE WITNESS: Yes, the concept of flow was first
15 developed by a psychologist who developed it in the context
16 of activities like, for example, rock climbing, playing
17 chess, dancing, listening to music and other sorts of
18 activities like that. And the idea -- and we have extended
19 it to describe what happens in computer-mediated environments
20 when people are engaging in interactive relationships in
21 those environments.
22 And it is a process or an experience that
23 individuals engage in and the first thing that happens is
24 people pay attention to what's going on in the environment,
25 then they have an experience of being totally immersed in the
15
1 environment which they perceive as being very enjoyable.
2 As a consequence of engaging in this flow experience
3 a number of nice things happen. For example, people report
4 increased learning in the environment, they report being very
5 satisfied by the experience in the environment, they engage
6 in more exploratory and participatory behaviors which means
7 they're more likely to try to explore and find out more
8 things in the environment and they perceive a sense of being
9 in control in the environment.
10 So we have used the construct or the concept of flow
11 to describe how people experience being in an environment
12 like the World Wide Web.
13 BY MR. BARON:
14 Q And finally, Professor Hoffman, in terms of definitions
15 what do you mean by these terms that you've referred to in
16 your writings as information bank or knowledge base for
17 future memory? Are you familiar with those terms?
18 A Yes, you're talking about the external memory concept
19 that we've developed, is that correct?
20 Q I believe so.
21 A The idea there is in an environment like the World Wide
22 Web there is a unique facility for people to be able to
23 remember things without having to write them down and that is
24 through the Bookmark facility which is a feature of browsers
25 like Netscape, for example.
16
1 So as I am surfing, for example, through the World
2 Wide Web and I move through cyberspace clicking on links that
3 attract my interest or that I'd like to learn more about, if
4 I see something that I want to remember because I might want
5 to come back another time, I can store it in my Bookmark, as
6 we saw our demonstration yesterday.
7 And in a marketing or consumer context that could
8 lead to what we call external memory because in a, for
9 example, a product purchase sense, if I see some information
10 about an automobile and I want to go back at another time,
11 maybe I'm interested in buying a Saab but today I'm just
12 going to surf but get some information about it but maybe
13 next week I want to go back because I don't remember where
14 that link was, but the Bookmark facility allows me to
15 remember without having to store it up here and we call that
16 external memory.
17 Q Would it be fair to say --
18 JUDGE DALZELL: Excuse me.
19 MR. BARON: Oh, sorry.
20 JUDGE DALZELL: Is user net navigation as you use it
21 in here synonymous with surf?
22 THE WITNESS: One part, surfing is one part of the
23 network navigation or user navigation experience. We
24 identify two types of network navigation, one which we call
25 experiential which is browsing or surfing just for fun, just
17
1 to sort of see what's out there and it's something we would
2 consider to be very ritualized, or in the psychological
3 parlance something we call hedonic which means it's fun and
4 we, you know, get a lot of pleasure from it.
5 The other type of user navigation or network
6 navigation we refer to as goal directed and not that that
7 wouldn't be fun, but in other words, I have a purpose, I am
8 looking specifically for some information about Saabs today.
9 JUDGE DALZELL: Got it, thank you.
10 BY MR. BARON:
11 Q Would it be fair to say, Professor Hoffman, that your
12 work in this area involves how adults as opposed to children
13 experience the World Wide Web and the Internet?
14 A Yes.
15 Q There aren't any studies, are there, on whether children
16 have a similar flow experience in the context of a hypermedia
17 computer mediated environment, correct?
18 A That's correct.
19 Q And so far as you are aware there has been no scholarly
20 research done on children's ability to build an information
21 memory bank or bookmarks, as you said, based on experiences
22 good and bad while on the net, correct?
23 A That's correct.
24 Q Please tell the Court what you mean by Net surfing?
25 There was a question but why don't we go over it again.
18
1 A By surfing I mean the process of, as I said before,
2 experiential behavior or activities on the World Wide Web by
3 browsing for information in which I have no particular goal
4 to find a particular piece of information and there's two
5 important components of the surfing process. One could be
6 I'm surfing or browsing because I have an enduring or an
7 ongoing relationship with the computer, so it's the computer
8 itself that I'm interested in and I just surf every day
9 because I like the computer, for example.
10 The other type of surfing or browsing behavior could
11 occur -- and these aren't mutually exclusive -- would be that
12 I have an enduring or an ongoing interest with the sorts of
13 things that I'm surfing for. So those might be information
14 about automobiles or information about stocks, financial
15 information, information about companies, scholarly
16 information, you know, there's an entire gamut of things.
17 And so maybe tomorrow I'm -- or today I would surf
18 for information and see what was the latest information in an
19 on-line magazine, for example, or I might want to find
20 something about my favorite writer, that sort of thing. And
21 so it's not particularly direct and I'm not looking for
22 something specific, I just want to see what's out there in a
23 general sense.
24 Q Would it be fair to say -- well, let me read you a
25 portion of your deposition and see whether you agree to it.
19
1 This is on this point. I'm paraphrasing from Page 72, Line
2 3. "If you are looking just to browse to just look for
3 something for fun, say, because you're interested in cars,
4 for example, but nothing specific, you might enter the word
5 cars and then tens of thousands of documents would appear and
6 you would choose one of those and you would click on it and
7 off, click on and off, and that would take you to a
8 particular Web site, whatever caught your fancy. From there
9 you could click on something else and go somewhere else, you
10 can go using the back key, for example, or one of the browser
11 navigation aids, a Netscape."
12 Tell the Court that in the deposition is a third
13 tense rather than first tense, but is that statement correct?
14 A Yes, it's correct.
15 Q Okay. Thank you. Now, children under the age of 18 Net
16 surf, don't they?
17 A Yes.
18 Q At the deposition this past Monday however you stated
19 that you know, quote, "next to nothing," unquote, about the
20 behavior of children on the Internet, correct?
21 A That's correct.
22 Q You haven't studied what kind of use children make of the
23 World Wide Web, correct?
24 A That's correct.
25 Q Or any of the other Internet applications including FTP,
20
1 Usenet, Gofer, et cetera, correct?
2 A That's correct.
3 Q Could you turn to Defendant's Exhibit 57, the books are
4 on your left at the bottom, and it's the second volume? MR.
5 BARON: It's in the second volume, your Honors.
6 BY MR. BARON:
7 Q Do you see Exhibit 57?
8 A Yes, I do.
9 Q Could you describe for the Court what this is?
10 A This is a -- we might call it a newsletter or a summary
11 example of some research that's being conducted at Carnegie
12 Mellon University under the name of Homenet and it's a five-
13 year or they're hoping five-year but right now it's multi-
14 year field trial of residential Internet use in the
15 Pittsburgh area.
16 Q The Human Computer Interaction Institute at Carnegie
17 Mellon is a respected research center and institution,
18 correct?
19 A Yes.
20 Q If you would turn to what is Subpart 4.4 on Page 3 of
21 this exhibit?
22 A Yes.
23 Q The subsection says "Teens Lead the Family," do you see
24 that?
25 A Yes, I do.
21
1 Q Is it correct to say that the study found that the
2 heaviest use -- users of the Net in 48 families studied were
3 teenage children?
4 A Yes, that's correct.
5 Q Do you rely on this study in your own research as what
6 you consider to be the first credible study of the
7 consumption experience in the home regarding the Internet?
8 A Yes. I use this study as background information for both
9 the empirical work that we're conducting and our theoretical
10 work because it is the first study that has actually put
11 computers in the home. However, the study has to be
12 qualified on a number of important dimensions. One is it's
13 taking place in the Pittsburgh area which is a major urban
14 center in the United States. Another is that it only has 48
15 families and so that is an extremely small sample, so we have
16 to be very careful about drawing broad conclusions about
17 behavior. However, I think the results are very interesting
18 and can be useful for suggesting some trends.
19 Another qualification or limitation is that the
20 families were solicited on the basis of locating high school
21 students who were on the school papers at the high schools
22 that they attended so you would expect that these journalism
23 students in high school and being editors of the paper or
24 else writers for the paper would be lead users of the
25 computer. So in that sense the results will suggest what's
22
1 happening with lead users or pioneers and are not indicative
2 of the general population.
3 Q May I ask that you turn to Defendant's Exhibit 44 which
4 may be in the first volume by your side? My apologies, I
5 think your exhibits are in both volumes so we're going to go
6 back and forth.
7 A That's okay.
8 (Pause.)
9 A Okay.
10 Q Do you recall my showing you what are statistics from the
11 Census Bureau?
12 A Yes, I do.
13 Q If you would turn to page 2 of the exhibit, do you see
14 the Table A, "Level of Access and Use of Computers: 1984,
15 1989 and 1993," where the numbers are in thousands?
16 A Yes.
17 Q Maybe it would be helpful, can you summarize just what
18 this table is attempting to get at?
19 A Yes. This -- this is from the CPS or the current
20 population census from 1993, I believe, and what it is
21 attempting to show are the trends in access and use of
22 computers in the United States over the last decade or so for
23 children and for adults. Would you like me to say more?
24 Q You stated in your deposition that while you didn't
25 dispute these figures, to you they represented an upper
23
1 bound, correct?
2 A Yes, that's correct. I do research on the use and access
3 of the Internet and am engaged right now in an empirical
4 study of those aspects and in fact a very interesting
5 research question from my perspective is what it means to ask
6 someone if they have access to a computer and what are they
7 thinking when you ask them that question and what sort of
8 information do you get. And also what does it mean when you
9 ask someone if they use a computer and what sort of
10 information you get. And one conclusion we are coming to is
11 that the access question is an upper bound on use because it
12 tends to evoke an awareness type of response.
13 When you ask someone if they have access to
14 something it seems to suggest in their minds, oh, well, I
15 know about it, I'm aware of it, yeah, I have access because
16 my neighbor down the street has a computer and so in that
17 sense I believe I might have access.
18 The use question tends to be more, a little bit more
19 specific because now you're actually asking somebody do you
20 actually use a computer and so as you can see from the table
21 here for 1993 the access figures are higher than the use
22 figures. And so you expect to see this winnowing down effect
23 as you get more specific in the type of usage questions you
24 ask someone and in fact I would expect -- and these data do
25 not show it because they're so aggregate -- that if we say
24
1 well, do you use a computer every day the number would be
2 much, much smaller.
3 Q All right, well, thank you. These --
4 A You know, I have a point to make about this table which I
5 noticed which is -- I'm sorry, may I?
6 JUDGE SLOVITER: Well, excuse me.
7 (Discussion off the record.)
8 JUDGE SLOVITER: Well, there's no objection.
9 JUDGE DALZELL: Well, I'm sure --
10 MR. BARON: I have no objection, your Honor.
11 JUDGE SLOVITER: You have an objection?
12 MR. BARON: I have no objection, your Honor.
13 JUDGE SLOVITER: Oh, he has no objection.
14 JUDGE DALZELL: All right, go ahead.
15 JUDGE SLOVITER: Okay.
16 THE WITNESS: I -- the point that I want to make, I
17 think, illustrates the difficulties involved in trying to
18 measure access and use of computer networks or use of
19 computers or use of the Internet. For example, if you'll
20 look at column -- the first set of numbers under "Number" and
21 you'll see 1993, it says "Do you have access to a computer,"
22 it's for three to 17 year olds, and the number given is
23 17,829,000 people in the United States in 1993 between the
24 ages of three and 17 are estimated to have access. And yet
25 and then you look at do you use a computer and you see that
25
1 12 million say they use a home computer, 28 million say they
2 use a computer at school and then 32 million say they use it
3 at anyplace and the figure seems somewhat out of whack
4 because it's so much higher that they would use it anyplace
5 and you wonder what those other places are, particularly for
6 three to 17 year olds. And so it just reflects some of the
7 difficulties, I think, involved in trying to tap these --
8 using these sorts of statistics for anything more than
9 looking at trends, at least at this point in time.
10 BY MR. BARON:
11 Q All right, well, thank you. Now, you state in your
12 declaration that the Internet is unique, that it's very
13 different than other media, correct?
14 A That's correct.
15 Q As one of the ways that you pointed out that the Internet
16 is unique is that it's essentially a 24-hour a day, seven day
17 a week medium?
18 A Yes, that's correct.
19 Q URL's are always there in cyberspace, correct?
20 A Well, they're there as long as the computer behind them
21 hasn't shut down, that's correct.
22 Q Okay. And one of the features you've emphasized here
23 today in your deposition that is how easy and sometimes how
24 fun it is to Net surf, correct?
25 A Yes, that's correct.
26
1 Q There's a popular search engine for Net surfing called
2 "Alta Vista," correct?
3 A Yes.
4 Q Could you turn to Paragraph 66 of your declaration?
5 Paragraph 66 which is on Page 15 at the bottom, I'll read the
6 first two sentences:
7 "The Web differs from broadcast media like
8 television and radio in two important respects. First on the
9 Web individuals must seek out the information they want to
10 consume, individuals do not passively receive information nor
11 does information suddenly appear surprising them."
12 That's your statement, correct?
13 A Yes.
14 Q Let's say a child or a teenager was performing a surf,
15 surfing the Net in response to let's say a book project in
16 school, okay?
17 A Okay.
18 Q Let's say the book that they were interested in learning
19 more about because either they had read the book or because
20 they had seen the book was Little Women by Louisa Mae Alcott,
21 okay?
22 A Okay.
23 Q What would the child or the adolescent do in terms of
24 surfing the Net in terms of a simple search using Yahoo or
25 Infoseek or Alta Vista or some other search engine, what
27
1 would they do?
2 A Well, first of all, it would depend on the child. If we
3 go back to the concept of flow for a moment, it's a very
4 important idea to recognize that in computer mediated
5 environments there is a competency issue that is introduced
6 that is not relevant in the physical world, particularly for
7 the use of other media. And so this competency issue
8 involves the idea that people have a set of skills that they
9 have to bring to the environment in order to be able to
10 facilitate navigating through it. And the environment itself
11 also presents challenges to the individual as they're trying
12 to navigate.
13 And so what a child would do would depend on the age
14 of the child, the child's characteristics and particularly
15 their competency to navigate through this environment.
16 Q Assuming that the child knew how to type words into a
17 browser or search engine?
18 A So we're talking about a child that's literate, computer
19 literate --
20 Q Right.
21 A -- and old enough to understand the Netscape browsing
22 concept?
23 Q Right.
24 A And the concept of search agents?
25 Q To search for Little Women what words do you put into the
28
1 browser or what do you type into Infoseek or Alta Vista?
2 A If I were -- if I were instructing my child, for example,
3 on a book report -- my child is too young to do this but if
4 my child were older -- then we would go to Netscape, we would
5 go Alta Vista and then in advanced search cause I would help
6 him do this we would enter "Little" plus "Women" plus
7 "Louisa" plus "Mae" plus "Alcott." Actually we would use the
8 "and" key and then we would get all of the documents from the
9 22 million documents that are referenced in Alta Vista, we
10 would get the documents that satisfy that criteria. That's
11 what I would do with my child.
12 Q Can you turn to what -- now we've marked this as Exhibit
13 13A and with the Court's indulgence, it does not have a
14 separate tab in these books, it's found as the second
15 document under Tab 13.
16 (Pause.)
17 Q Do you see that document?
18 A Yes, I do.
19 JUDGE DALZELL: It's the one that has "Win a trip to
20 Hawaii" on it?
21 MR. BARON: Yes, correct, your Honor.
22 (Laughter.)
23 BY MR. BARON:
24 Q Are you generally familiar with this form of document as
25 produced by Infoseek?
29
1 A Yes, I am.
2 Q Would you take a look at the fifth entry on this
3 document?
4 A Yes, I see it.
5 Q This document was produced by typing in the words "Little
6 Women" correct?
7 A Yes, that appears to be the case because at the top it
8 says "Search for" and then in the bold, the two words,
9 "Little Women" and that had produced a search for all
10 documents on the Internet that have the words "little" in
11 them or have the words "women" in them in the title in the
12 URL.
13 Q And what does the fifth entry represent?
14 A You want me to read it?
15 Q Yes, please.
16 A "See hot pictures of naked women," exclamation point.
17 Q Isn't it possible, Professor Hoffman, that a child might
18 be surprised in stumbling across that entry in the context of
19 an on-line search? Isn't it possible?
20 A It's possible if the -- I -- it's possible that that
21 child would be surprised.
22 Q Thank you. Why don't we turn to the concept of hits when
23 you're conducting a search.
24 A Okay.
25 Q Could you explain to the Court what a hit is?
30
1 A Yes, a hit is a measure, it's a, literally it's an entry
2 recorded in the server log of the computer that is the Web
3 server that says a file has been accessed when someone comes
4 to that particular page. But the hits, there's quite a bit
5 of controversy about the hits because, for example, on the
6 home page for our center, Project 2000, when someone comes to
7 that front page or the front door of our virtual research
8 center, that counts as say ten hits.
9 And the reason it counts as ten hits is because we
10 have an image map, in other words, we have a picture on the
11 front with some nice drawings on it and on the map itself you
12 can click in different places and go to my curriculum vitae,
13 go to Professor Novak's curriculum vitae, go to the Owens
14 School's home page.
15 And so on and then there's a set of links that you
16 can go to our research papers, you can go to some other
17 people's research papers or whatever.
18 In the process of serving up that front page, that
19 records approximately ten hits on my server log. So the hit,
20 and that's the reason there's so much controversy over Web
21 measurement, hits are not an accurate measure of how many
22 people are coming to the Web site because depending on how
23 many images I have on my front page or how many links I
24 choose to put on the front page, I can inflate the number of
25 hits.
31
1 But a hit literally is a file served on that
2 computer server.
3 JUDGE DALZELL: Let me interrupt you for a second.
4 What if you came in the back door?
5 THE WITNESS: You mean to another page?
6 JUDGE DALZELL: In other words, if you came in
7 through another link --
8 THE WITNESS: Right.
9 JUDGE DALZELL: -- rather than hitting the front
10 page of your home page you found, for example, I mean what
11 Mrs. Duvall gave us yesterday with the fragile X, as I recall
12 it.
13 THE WITNESS: Right.
14 JUDGE DALZELL: If you came in the back door to the
15 fragile X foundation that way, would that be a hit?
16 THE WITNESS: Yes, that would also be a hit. So,
17 for example, fragile X has a home page but fragile X has many
18 sites that are enduring and have lots of content on them,
19 they might have thousands of pages. Some very deep sites
20 might have 10,000 pieces of information.
21 So each of those pages has a URL associated with it
22 and then if someone were to come in, as you say, through one
23 of these back doors because you knew the URL directly and you
24 went directly to that page rather than going through the
25 front door, that page itself could be served up at least as
32
1 one hit but again depends on how many things are on that
2 particular page.
3 JUDGE DALZELL: So in Project 2000's count, if
4 someone comes in by what I call the back door and I think we
5 agree it's called the back door to, say, Page 17 --
6 THE WITNESS: Well, there's --
7 JUDGE DALZELL: -- if there is a Page 17.
8 THE WITNESS: Yeah, there's not really a concept of
9 Page 17 because one of the unique features of the Web is that
10 it's not a linear.
11 JUDGE DALZELL: No, I understand that, but if you
12 were to print it out in hard copy it would be Page 17, each
13 screen.
14 THE WITNESS: Well, not necessarily because unless I
15 particularly marked it to say Page 17, but --
16 JUDGE DALZELL: All right.
17 THE WITNESS: But it's a page, it's another page.
18 Not the, you know, cause there's lot-- literally think of it
19 as a web and there's lots of different ways to meander
20 through either a particular site in a non-linear fashion or
21 through the entire Web.
22 JUDGE DALZELL: Well, when you measure the hits,
23 whatever their --
24 THE WITNESS: Right.
25 JUDGE DALZELL: -- inaccuracy may be, that also
33
1 includes the back door --
2 THE WITNESS: Yes, it does.
3 JUDGE DALZELL: -- accesses, correct?
4 THE WITNESS: In fact that's why we don't measure
5 hits and that's why there's been for particularly for
6 commercial purposes because this is a very hot topic with
7 advertisers right now and advertising agencies.
8 JUDGE DALZELL: They want to know hits per thousand,
9 right?
10 THE WITNESS: Right, and it's been completely, I
11 mean there's very few firms now that either will sell space
12 on a Web site on the basis of hits or will even talk in the
13 context of hits because in the last year there's been so much
14 attention, people have done a lot of work including the
15 Project 2000 discussing why this is a very bad idea.
16 So instead what people do, there are several things.
17 So hits are really the upper bound. I mean there's no more
18 than the hits as the measure of what's happening on your Web
19 site, but it's a completely useless measure from my
20 perspective as a measure of activity from a consumer
21 perspective.
22 The lower bound is what we call unique domains. The
23 server log also records when someone comes to the site
24 there's their domain name attached to it. So, for example,
25 if I'm visiting a Web site I have my own domain and IP
34
1 address because I have my own machine connected directly to
2 the Internet. My address at Vanderbilt is
3 Collett.OGSM.Vanderbilt.EDU, so whenever I go somewhere with
4 my browser from my machine to another Web site anywhere in
5 the world, the server log of those sites that
6 Collett.OGSM.Vanderbilt.EDU went to the site. It doesn't say
7 Donna Hoffman went because they don't necessarily know it's
8 me, they just know that machine went. That is a domain.
9 So the server log for a particular site will record
10 all those domains and it's very possible and very easy to
11 write computer programs to count how many domains came in a
12 day, in an hour to a page, to all the pages, to the home page
13 and so on and then throw out the ones that are multiples.
14 So, for example, our site gets hit a lot by
15 Gateway.Senate.GOV and -- but if they come more than once,
16 first of all, I have no idea who it is, but if they come more
17 than once I'll discount it once and say I had a unique visit
18 today from Gateway.Senate.GOV and then I can count over time
19 how many of those unique domains I had in a single day.
20 So the Project 2000 site gets anywhere from a
21 thousand to two thousand or so, maybe 1800, unique domain
22 visits a day. It probably gets tens of thousands of hits,
23 but that's irrelevant. What's much more important to know is
24 how many lower bound people actually came to my site.
25 JUDGE DALZELL: Sorry to interrupt.
35
1 JUDGE SLOVITER: Could I get just one little
2 clarification while we're doing it? On this exhibit that
3 doesn't have a page -- well, it does, it's one of two in 13A
4 that you called our attention to, would any of these
5 references be a hit even if the user, searcher, surfer
6 didn't click on them, if the page has come up would these be
7 considered, would they all be considered hits or would none
8 of them be considered hits until the person wants to link
9 with the little hand?
10 THE WITNESS: Right.
11 JUDGE SLOVITER: Well, which one? There's an
12 either/or--
13 THE WITNESS: Yes, they would not be -- they would
14 not be considered hits because for these search engines,
15 Infoseek is not a -- is a directory. And so when I go to
16 Infoseek to search, for example, in this case or when he went
17 to search for Little Women, that created a hit on Infoseek
18 because somebody went to Infoseek and let's say you went and
19 you had a domain associated with your computer, which you
20 would, it would record that you were there.
21 Now, this page is served up from Infoseek's
22 directory so there is no hit recorded for the WWW Women's
23 Sport Page by Amy Lewis and so on.
24 JUDGE SLOVITER: Okay.
25 THE WITNESS: However, if you then choose to click
36
1 on one of these links you will be taken to that site and that
2 would record a hit.
3 JUDGE SLOVITER: Okay. And you would have
4 instructed your son, if you were helping your -- is it
5 correct that you would have instructed your son if you were
6 looking for Little Women to put "little" with an and?
7 THE WITNESS: Yes, I would. Well, first of all, I
8 probably wouldn't use Infoseek, I would use -- but whatever.
9 But even Infoseek, I believe, allows you to use term -- I am
10 blanking on the name, but symbols that allow you to refine
11 your search because I would know, being an experienced user
12 of the computer, that searching for the two words, "Little
13 Women" would produce many more things than I would be
14 interested in.
15 JUDGE SLOVITER: But is it true that a child might
16 not know?
17 THE WITNESS: It's true, but I think the reason is
18 that I would be with my child educating him on how to use the
19 computer and how to engage in these search processes, at
20 least until I felt he was -- knew how to do it on his own.
21 So I would not let him sit there and do this.
22 JUDGE DALZELL: But if your son were 12, let's say,
23 and by now an experienced surfer, isn't it a fair assumption,
24 as Chief Judge Sloviter is suggesting, that he would just
25 type in Little Women? That is the natural search.
37
1 THE WITNESS: Actually, I believe that if he were 12
2 and an experienced surfer, particularly on the basis of my
3 tutelage, he would know that it would be a waste of time to
4 type in Little Women and because by then he would have moved
5 through the processes we described in our search and he would
6 have moved from being a browser to a more goal-directed user,
7 he would be much more experienced.
8 And if he knew what he was looking for he would know
9 how to get to it.
10 JUDGE DALZELL: But the point is the more naive the
11 searcher, the more likely they are to pick up what Mr. Baron
12 has called your attention to, isn't that the point?
13 THE WITNESS: Yes, I believe that's true, the more
14 experienced they are, the more likely they would be to not
15 know how to do sophisticated searches.
16 JUDGE SLOVITER: And that's particularly true of
17 children, isn't it, who don't have the benefit of a parent
18 who is an expert in this area?
19 THE WITNESS: Well, that would be more true, yes,
20 that's true, but then there are also schools that instruct
21 children on how to use the computers in the Internet and how
22 to go through searching facilities and teach them the tools
23 necessary to use the Internet as a communications tool.
24 JUDGE SLOVITER: I think Mr. Baron was probably
25 getting at the -- he was trying to get to the number of hits,
38
1 so while we'll let you go back to that then.
2 MR. BARON: Well, this is an interesting discussion,
3 but --
4 JUDGE DALZELL: Well, thank you.
5 JUDGE SLOVITER: We aim to please.
6 (Laughter.)
7 MR. BARON: I want to add a layer of complexity to
8 the subject of hits and I was going to go off on a different
9 tangent which is to ask you to tell the Court what are "Bots"
10 and what are "Spiders."
11 JUDGE DALZELL: Bots?
12 MR. BARON: B-o-t-s.
13 JUDGE DALZELL: That's an acronym, right?
14 THE WITNESS: Not really.
15 MR. BARON: I'll let Professor Hoffman describe it.
16 THE WITNESS: Bots or Robots, Bots for short.
17 JUDGE DALZELL: A contraction.
18 THE WITNESS: And Spiders and Intelligent Agents are
19 a class of software programs that are tools that enable
20 people to perform specific tasks on the World Wide Web, for
21 example, seek out specific types of information or URL's or
22 whatnot.
23 BY MR. BARON:
24 Q Does Alta Vista employ a Bot?
25 A Yes, I don't know if they call it a Bot or a Spider, but
39
1 Alta Vista employs software that allows it to traverse the
2 Web to find the URL's that exist on the Web so they can store
3 them in a database so that when you go there to search you
4 can find what you're looking for.
5 Q And you stated in your deposition that you thought there
6 were about 10 to 20 directories and search engines that are
7 popularly used today, correct?
8 A Yes, it's correct. For example, if you go to the
9 Netscape Homepage and go to their Searchpage, Netscape which
10 is the most popular browser on the Internet for use in the
11 World Wide Web has a page which provides for its customers
12 the ability to go search. And so they have a page with all
13 the search engines there and all the directories. And I
14 think the directory page may list 10 to 15 directories or so
15 and the search engine page may list another 10 to 15 or so,
16 so maybe there's 10 to 20, maybe there's 30 and they're
17 changing all the time.
18 There's probably about 250 directories and search
19 engines all over the Web but I don't think that they're all
20 equally popular.
21 Q Well, you told me at your deposition, didn't you, that
22 for the 10 or 20 major ones that they're all employing Bots
23 or some other software to search the Web for URL's to
24 incorporate in their database, correct?
25 A Yes, I told you that and also we have to make an
40
1 important distinction because some of the directories also
2 employ human beings who will go out and search for
3 information and then make a determination on whether it
4 should be included in their directory.
5 And there's a very important distinction between a
6 search engine and a directory because search engines like
7 Alta Vista, for example, do not discriminate. If it's on the
8 Web and they can find it, it will go in the database. And
9 they currently catalogue 22 million unique URL's.
10 So that's considered to be right now our best guess
11 at the universe of information available on the World Wide
12 Web. They also catalogue about 11 billion words and that's
13 considered to be the universe of information right now on the
14 World Wide Web.
15 However, a directory, for example, Magellan which is
16 also referred to as the McKinley Index, these are -- this is
17 a directory where people have made a choice about what URL's
18 to include and then they look at the site and then they rate
19 it using a star system where four stars is the best.
20 So on these directories you find a much smaller
21 universe of URL's from which you can search.
22 JUDGE DALZELL: And your testimony is that the best
23 guess at least at some recent time was that there are 22
24 million URL's out there or were?
25 THE WITNESS: Well, it's not a guess, it's just that
41
1 we know that Alta Vista indexes 22 million unique URL's in
2 its database. The thing that is interesting is last month
3 they indexed 21 million, so it's grown by one million unique
4 URL's in about the last four weeks.
5 JUDGE DALZELL: What does a typical directory, how
6 many do they --
7 THE WITNESS: It -- it depends. It might be 5,000,
8 it might be a few hundred, it might be 10,000. They're
9 typically smaller, especially if they have to go through and
10 somebody has to like look at these things and make some
11 determination about them.
12 JUDGE DALZELL: So the difference between the
13 directory and the search engine is the search engine
14 encompasses all?
15 THE WITNESS: It could, that could be a difference,
16 yes. For like -- yes, for Alta Vista which is a search
17 engine or Lycos which is a search engine, right, those
18 encompass all, they do not discriminate. If it's out there
19 and the software finds it, it will store it in a database.
20 Yahoo, for example, to use a very prominent
21 difference, Yahoo is a directory and Yahoo catalogues, Yahoo
22 has a person, a human being who sits there and she decides
23 this URL will go in, this URL will not go in. She also
24 decides how to catalogue them so the main distinction between
25 directories and search agents is a directory catalogues or
42
1 otherwise structures the information for you.
2 So like if you go to Yahoo, you can look -- let's
3 say you're interested in information about sports. There's a
4 sports heading and you can click there and there will be all
5 the links on sports. And Alta Vista --
6 JUDGE DALZELL: Just all the links that Yahoo gives
7 you?
8 THE WITNESS: All the links that Yahoo has
9 determined should be included in its directory under the
10 heading sports, yes.
11 There's another well known directory open -- Yahoo,
12 like for example, I don't know how many URL's Yahoo has, it
13 has a lot, but as an example, in their company's directory
14 which is the commercial portion of Yahoo there's over 50,000.
15 In -- but if I were to search for companies on Alta
16 Vista I would get millions, so it would be many more. Open
17 Market, another popular directory, lists about 22,000
18 entries, so it's a little -- it's much smaller than Yahoo but
19 they go through a more detailed process in order to register
20 your information.
21 JUDGE DALZELL: And Alta Vista is growing at about
22 one million URL's a month?
23 THE WITNESS: Well, last month it grew one million
24 URL's.
25 JUDGE SLOVITER: Because it was cold and people had
43
1 nothing else to do.
2 (Laughter.)
3 BY MR. BARON:
4 Q Well, let me just ask a couple more questions about this
5 topic of search for hits. Individuals are also employing
6 Spiders to go out and traverse the Web looking for
7 information, correct?
8 A Yes.
9 Q And the server log on a Web site records that access
10 having been made to that page, correct?
11 A That's correct.
12 Q For Spiders and for Bots?
13 A The server log records whenever another computer comes to
14 its Web site so the Spider or this Intelligent Agent or the
15 software program had to come from somewhere just as if I were
16 visiting and the server log records that access as a domain
17 visit, yes.
18 Q Even without any real human person looking at that site?
19 A Yes, that's true.
20 Q And the major directories or search engines, the ten or
21 twenty you've described or more, go out and search at least
22 one, once a day and probably much more often, correct?
23 A Yes.
24 Q And they go back to sites that they've already visited to
25 see what's new, correct?
44
1 A Yes, that's correct.
2 Q Okay. There are lots of directories out there in
3 cyberspace that have URL's, correct?
4 A Well, yes, by definition if it's a directory on the Web
5 it must have a URL.
6 Q You said in your deposition that there are hundreds if
7 not thousands of examples of individuals who have put
8 together indexes on particular topics of interest to other
9 individuals in cyberspace, correct?
10 A Yes, that's correct.
11 Q And one of the ways that directories come into being or
12 one of the ways that one can communicate in cyberspace is to
13 fill out forms, correct?
14 A Uh --
15 Q Why don't you explain to the Court what a form is, a Web
16 form?
17 A A fillout form is a page on someone's Web site which has
18 the facility to take information from you if you would care
19 to give it. So, for example, sort of a classic use of a
20 fillout form in a commercial context would be to give your
21 name, demographic information and maybe your credit card
22 number. So there would be little spaces there for you to
23 type in your name, there might even be little sort of virtual
24 bubbles, if you will, that you could use a mouse to click and
25 say what gender you were and it would say male, female, maybe
45
1 a little button and you'd click whether you were a male or
2 female. Then there would be another box to enter some
3 information that the firm might like to know about you and
4 that would be captured through what is called a fillout form.
5 And there would be many other uses. We use them on
6 the Project 2000 site to get information about people that
7 visit so we can put them on a mailing list, for example.
8 Q Could you turn to Exhibit 40? You mentioned earlier Open
9 Market?
10 A Yes.
11 Q Is this -- is Defendant's Exhibit 40 an example of an
12 Open Market page?
13 A Yes, that's an example of an Open Market page.
14 Excuse me, could I have more water, please?
15 Q Oh, sure.
16 (Pause.)
17 Q Are you ready?
18 A I'm ready.
19 Q Professor Hoffman, you stated a few minutes ago in
20 testimony that Open Market has a, I believe I got this right,
21 a more detailed process for registering entries in their
22 directory, correct?
23 A Yes, that's correct.
24 Q Could you just explain for the Court what Exhibit 40
25 represents in terms of the commercial sites index listing
46
1 submission?
2 A Yes, this is --
3 MR. HANSEN: Excuse me, I think counsel misspoke.
4 Do you mean to say Exhibit 41?
5 MR. BARON: No, I'm referring to Exhibit 40.
6 MR. HANSEN: Oh, all right.
7 JUDGE DALZELL: Which is headed "Open Market's
8 Commercial Sites Index," correct?
9 MR. BARON: Correct.
10 THE WITNESS: And then it says "Commercial Sites
11 Index Listing Submission."
12 JUDGE DALZELL: Right.
13 THE WITNESS: Yes, this is the page if you were to
14 go to the Open Market homepage or maybe someone told you this
15 URL directly and you entered it directly. But in any event
16 let's just say you found your way to this page deliberately
17 because you knew it existed and you wanted to register your
18 commercial site with Open Market.
19 You would have to go to this page, you would follow
20 the instructions on this page and, even though you can't see
21 it from this hard copy printing, it's a fillout form where
22 so, for example, see where it says "New Listing Update Old
23 Listing," those are choices and you would click on one of
24 those to indicate to Open Market whether you wanted to update
25 a listing you already had in their directory or you wanted to
47
1 enter a new listing.
2 JUDGE SLOVITER: Why do you say you can't see it?
3 Isn't it on the next page?
4 THE WITNESS: No, I mean you can't tell from this
5 hard copy printout --
6 JUDGE SLOVITER: Oh, it's on this and the next page.
7 THE WITNESS: -- what it would really look like on
8 the World Wide Web on a computer because it would be
9 highlighted and it would be obvious that you would have, you
10 know, there would be an action required on your part which
11 would be to click.
12 Then if you saw where it says "Listing name," that
13 would be a text box. It hasn't come out here on the print,
14 on the printer, but there would be a -- that would be the
15 place where it would be obvious for you to type the name that
16 you wanted the listing to appear as in the directory, and so
17 on.
18 And so you would go through this process on line,
19 filling out this fillout form, it would be stored directly in
20 their database, they might do some processing of it and then
21 they would -- I do not know if Open Market screens these or
22 makes some determination on what's appropriate or not. I do
23 know that they have 22,000 or so listings and since that's
24 half the size of Yahoo's listings, I infer there may be some
25 sort of selection process involved or either that or not
48
1 everybody wants to list with Open Market.
2 BY MR. BARON:
3 Q And when someone wants to list with Open Market, then
4 individuals in cyberspace can search against the Open Market
5 directory of the sites that are listed?
6 A Yes, that's correct.
7 Q Could you turn to Exhibit 41?
8 A Yes, I see it.
9 Q Do you recall my showing you this page at your
10 deposition?
11 A Yes, I do.
12 Q Could you explain for the Court what this page
13 represents?
14 A Yes. This is -- this appears to represent someone typing
15 in on a previous page which asked you to search which gives
16 people the opportunity to search for particular listings in
17 the Open Market directory. Someone has performed a search of
18 listings that contain the word p-o-r-n or porn. And the
19 search appears to have returned 23 items.
20 Now, I'm going to assume that because they're from A
21 to Z that that's an exhaustive list of the sites on Open
22 Market out of the 22,000 or so sites that contain the word
23 porn and that's 23 items.
24 Q And could you turn to Defendant's Exhibit 42?
25 A Yes, I see that.
49
1 Q What would this represent, this page?
2 A Well, this appears to represent what would happen if the
3 person who had searched for porn clicked on the first entry
4 which was Triple A Adult Entertainment, then that would take
5 you directly to a page, it appears to be still on the Open
6 Market site which then gives you more information about the
7 Triple A Adult Entertainment commercial site and then
8 there's, that's obvious from underlining that that's a
9 Hypertext link, so if you then chose to go to the Triple A
10 Entertainment, Adult Entertainment site, you would click on
11 that link and then you would be what we call off site, you
12 would now be somewhere else in cyberspace.
13 Q But the point here is that the Triple A Adult
14 Entertainment site has essentially gone through a
15 registration process with the Open Market directory, correct?
16 A Yes, they have listed their business with the Open Market
17 commercial directory.
18 Q All right, thank you. Let me turn to a separate subject.
19 Is it -- is it your testimony, as you state in your
20 deposition, that there are approximately 12 to 15 million
21 subscribers to AOL, Compuserve and Prodigy?
22 A Yes, and all of the commercial on-line services, not just
23 the top three, because Microsoft Network is rapidly
24 approaching one million subscribers by itself.
25 Q You agree, do you not, that it is in the interest of the
50
1 marketplace to adopt parental controls?
2 A Yes, I do.
3 Q Could you turn to Exhibit 48 which I believe would be in
4 the second volume?
5 (Pause; discussion off the record.)
6 BY MR. BARON:
7 Q Do you recall my showing you this exhibit in your
8 deposition?
9 A Yes, I do.
10 Q Could you generally describe for the Court what it
11 represents in terms of a Web page?
12 A Yes, it's an advertisement for an adult bulletin board.
13 Q It appears to state that one calls a 900 number to get a
14 user name and a password and there will be a $20 charge on a
15 phone bill and then after you call that number --
16 A Oh, right, yes, I'm sorry. This is the other one you
17 showed me. This is not an advertisement for an adult
18 bulletin board, this is a -- the homepage of a commercial Web
19 site that contains sexually explicit material and this is the
20 process by which they register you. You must, rather than
21 using a fillout form, you go off line with a telephone number
22 and give your credit card information.
23 Q Could you read for the Court in the small print what it
24 says, starting with the word "due"?
25 A "Due to the passage of the Telecommunication Act of
51
1 1995," -- which is wrong -- "which includes provisions
2 banning indecent material on the Internet, the material here
3 has been temporarily removed while we bring it into
4 compliance. The member area is not affected."
5 Q Do you have any idea what might have been on the site
6 prior to the words here?
7 A No, I have no idea.
8 Q Okay. It would have been a pornographic image?
9 A It could have been a --
10 MR. HANSEN: Objection, she says she has no idea.
11 JUDGE DALZELL: Sustained.
12 BY MR. BARON:
13 Q Okay. Would you turn to Defendant's Exhibit 49?
14 You stated at your deposition on Monday that you
15 were generally familiar with a site called Bianca's Smut
16 Shack, correct?
17 A Yes, correct.
18 JUDGE DALZELL: Bianca's what?
19 MR. BARON: Smut Shack, S-m-u-t.
20 BY MR. BARON:
21 Q You would, turning from the material beyond the first
22 page, you would agree, would you not, that the text of the
23 materials on this site are sexually explicit?
24 A You mean in general?
25 Q The text of the various pages at the end of this exhibit,
52
1 correct?
2 A Yes.
3 Q Okay. Now, just concentrating on the first page of the
4 exhibit, you see where it's titled "The Rules of the Game?"
5 A Yes, I see that.
6 Q Would you read for the Court in the third paragraph, can
7 you read to the Court what the third paragraph states?
8 A The paragraph starting second?
9 Q Yes.
10 A "Second, Bianca Trol Productions recognizes its
11 responsibility under current U.S. law to take, 'in good
12 faith, reasonable, effective and appropriate actions under
13 the circumstances to restrict or prevent access by minors
14 to,' this site which may contain adult language and
15 situations. We are also taking, 'appropriate measures to
16 restrict minors from such communications, including any
17 method which is feasible under available technology.'"
18 Q Could you look at Point 2 which follows where it's
19 described as Technology Measure No. 1, and could you, after
20 you've had a moment to look at it, inform the Court what
21 Bianca is stating here?
22 A Well, the site is stating that there is a way to block
23 people from coming to the site by means of blocking the IP
24 addresses which represent this particular site, so that you
25 can block at the user site by saying the -- by not allowing
53
1 the browser to go to sites that have particular IP or
2 Internet protocol addresses which are those numerical
3 addresses you see there, the 204.62.13.6, that's the locate--
4 that's the address of this particular site in cyberspace and
5 there's another address associated with it. And if I know
6 the address, I can block it so that my particular computer
7 could not go to that address.
8 Q You would agree, would you not, that Technology Measure
9 No. 2 is an effective measure with respect to blocking
10 individuals who access that ISP?
11 A It's -- I agree that it's an effective measure of
12 blocking particular computers or people's access who use
13 those computers to particular sites, yes.
14 Q Would you look at Technology Measure No. 2 which is
15 listed at Point 3?
16 A Yes.
17 Q And inform the Court what the site is instructing to do?
18 A Well, you can also do the reverse. If you give your IP
19 address, if I were to send my -- my address to this
20 particular site, then it would also block me that way. So I
21 would -- I could go there but it wouldn't let me in because
22 then it would know that I was coming in and say uh-oh, you
23 know, Professor Hoffman not allowed at this site, as
24 identified by my IP address on my computer.
25 Q All right, thank you. Your testimony and your
54
1 declaration-- that will be the end of the use of that -- your
2 testimony in your declaration is that the act in question
3 here, the Communications Decency Act, will have negative
4 consequences for the new medium of the Internet and
5 specifically the World Wide Web, correct?
6 A Correct.
7 Q You will -- you concede, will you not or you do concede,
8 do you not, that the exhibit that was 48 which was the
9 Cybersex City exhibit with the 1-900 number?
10 A Mm-hmm.
11 Q The fact that the material that's been removed with that
12 disclaimer about the Telecommunications Act, whatever that
13 material was, you would concede would you not that the
14 removal of that material does not have a profound adverse
15 consequence in terms of the growth of the Internet or the
16 ease of use of the World Wide Web, correct?
17 A In that particular instance on that particular site I
18 would concede that, yes.
19 Q You would also concede, would you not, Professor Hoffman,
20 that the site that's Bianca's Smut Shack's decision to
21 include a rules of the game homepage complete with tagging
22 and registration requirements as set forth in those two
23 technology measures will similarly not have a profound
24 adverse effect on the growth of the Web or the ease of use of
25 the Internet, correct?
55
1 A On that particular site, that's correct.
2 Q Could you explain for the Court what Anonymous Remailers
3 are?
4 A Yes, Anonymous Remailers and their -- and a related
5 service called Pseudonymity Servers are computer services
6 that privatize your identity in cyberspace. They allow
7 individuals to, for example, post content for example to a
8 Usenet News group or to send an E-mail without knowing the
9 individual's true identity.
10 The difference between an Anonymous Remailer and a
11 Pseudonymity Server is very important because an Anonymous
12 Remailer provides what we might consider to be true anonymity
13 to the individual because there would be no way to know on
14 separate instances who the person was who was making the post
15 or sending the E-mail.
16 But with a Pseudonymity Server, an individual can
17 have what we consider to be a persistent presence in
18 cyberspace, so you can have a pseudonym attached to your
19 postings or your E-mails, but your true identity is not
20 revealed. And these mechanisms allow people to communicate
21 in cyberspace without revealing their true identities.
22 Q I just have one question, Professor Hoffman, on this
23 topic. You have not done any study or survey to sample the
24 quantity or the amount of anonymous remailing on the
25 Internet, correct?
56
1 A That's correct. I think by definition it's a very
2 difficult problem to study because these are people who wish
3 to remain anonymous and the people who provide these services
4 wish to remain anonymous.
5 Q You would agree, Professor Hoffman, that the Alt Binary's
6 hierarchy of Usenet News groups contains pornographic
7 imagery, correct?
8 MR. HANSEN: Objection, I'm not sure the word
9 "pornographic" has any meaning in the legal meaning.
10 JUDGE DALZELL: Well, does it to you?
11 THE WITNESS: I agree it contains sexually explicit
12 material, yes.
13 JUDGE DALZELL: Okay, overruled.
14 BY MR. BARON:
15 Q You also agree, do you not, that pornographers are using
16 Usenet News groups to advertise, correct?
17 A Yes. But can I clarify that?
18 Q Sure.
19 A What I have seen on Usenet News groups is that operators
20 of adult bulletin boards are in some cases, although it's
21 sometimes difficult to tell because it could just as well be
22 individuals who have downloaded content and are re-posting it
23 on Usenet News, but there are cases of images from adult
24 bulletin boards which are re-posted on Usenet News groups and
25 there's some idea that the operators of the adult bulletin
57
1 boards are using this as a mechanism to advertise their
2 service.
3 Q Now, we've already gone over Paragraph 122 of your
4 declaration where you said that it is your, quote,
5 "impression," unquote, that there is a decreasing percentage
6 of sexually specific material in cyberspace as a proportion
7 of the total amount of packet traffic or hosts or however one
8 counts the Internet in terms of how big it is, correct?
9 A Well, I didn't, no, that's not correct. My declaration
10 doesn't say that. It says that it is my opinion based on my
11 experience and my research in this medium that when
12 considered as a percent of the total information, so I'm
13 thinking of it particularly in terms either of postings for
14 example on Usenet News groups or in terms of URL's, for
15 example, on that portion of the Internet known as the World
16 Wide Web that the amount of sexually explicit material
17 available is actually constant and so as a percent of total
18 is decreasing because the total amount of information on the
19 Internet is increasing at a very rapid rate.
20 JUDGE DALZELL: So it's that deduction is behind
21 Paragraph 122?
22 THE WITNESS: Yes, that's correct.
23 BY MR. BARON:
24 Q But you can't say, can you, Professor Hoffman, in terms
25 of packet traffic on the Internet whether the sexually
58
1 explicit material consists of 10,000 packets or a million
2 packets or a billion packets, correct?
3 A No, I can't say that, no one can say that.
4 Q You have given no absolute number in terms of what the
5 quantum of pornography or sexually explicit material is in
6 cyberspace, correct?
7 A Correct.
8 Q Could you turn to Paragraph 129 of your declaration?
9 You state that digital Alta Vista's search engine
10 currently indexes over 21 million unique URL's and 10 billion
11 words on the World Wide Web?
12 A Correct, except now it's -- I just checked yesterday,
13 it's now 22 million unique URL's and 11 million words -- 11
14 billion words, I'm sorry.
15 Q All right. Now, as a hypothetical if just one percent of
16 cyberspace on the Web contains sexually explicit material,
17 that would translate, under your new numbers, as 220,000
18 unique URL's and 110 million words by your calculation,
19 correct? It's one percent of these figures.
20 A If you assumed it was distributed uniformly that would be
21 a correct mathematical calculation, yes.
22 Q Would you consider that to be a large amount under that
23 hypothetical?
24 A I would not consider it to be a large amount as percent
25 of total. I think it's very difficult to make absolute
59
1 statements about numbers unless they are referenced in a
2 framework.
3 Q Well, you've testified that the Web is growing
4 phenomenally, right?
5 A The Web as measured in the number of servers is growing,
6 is doubling approximately every two and a half months. The
7 Internet as measured in the number of hosts computers
8 connected to it is doubling annually and has been so since
9 about 1981 or 1982. So that we consider these to be
10 exponential and phenomenal rates of growth, yes.
11 Q Well, given that phenomenal growth, just to be clear
12 about what your declaration is saying, a number can grow in
13 absolute numerical terms but still represent a smaller
14 percentage of a larger total if that total is growing
15 phenomenally, correct?
16 A I don't understand what you just said.
17 JUDGE SLOVITER: You can make that argument.
18 JUDGE DALZELL: I think we understand the basic laws
19 of mathematics.
20 MR. BARON: All right, I have no more questions,
21 your Honors.
22 JUDGE SLOVITER: Okay, this is a good time to take
23 the ten-minute break and it will be a ten-minute break.
24 THE COURT CLERK: All right, please.
25 (Court in recess; 10:45 to 11:00 o'clock a.m.)
60
1 JUDGE SLOVITER: Okay, we'll hear the plaintiffs on
2 redirect.
3 MR. HANSEN: Thank you, your Honor.
4 REDIRECT EXAMINATION
5 BY MR. HANSEN:
6 Q Professor Hoffman, you had some discussion with the
7 Government concerning the definition of hits and unique
8 domains of methods of measuring the number of people who are
9 actually traveling in cyberspace. Does the -- would you
10 explain again what a unique domain is?
11 A Yes. A unique domain is, very simply stated, the address
12 of the computer. Every computer has associated with it a
13 particular address and that address can be in words, so, for
14 example, gateway.senate.gov, or it can be in numbers, the
15 numerical address or sometimes called the IP address, which
16 stands for Internet protocol. However, the situation becomes
17 a little bit more confusing or complicated, because there are
18 various types of systems that computers can be assigned
19 addresses, which makes it very difficult to know what --
20 which particular computer might be coming to your site. So,
21 for example the -- let's just take an example of AOL, the
22 commercial on-line service which is a gateway to the
23 Internet, the address for AOL is aol.com, that's a domain
24 name, and it has an IP address associated with it, which I
25 don't know what that is. However, AOL has a series of
61
1 machines that it uses for its users to get onto the Internet
2 and they might be called, for example, aol1.aol.com,
3 aol2.aol.com, and so on. But AOL has about five million
4 users, but AOL does not have five million unique domains, it
5 only has a much smaller number. So, for example, on the
6 Project 2000 site we get many visits from AOL presumably, but
7 they only -- from people who use AOL as their gateway to surf
8 the net, but it shows up in our server log as, say,
9 aol1.aol.com and that's a hit, a visit. What I don't know is
10 how many people were associated with that domain, because
11 when I count -- when I have a program that runs and goes
12 through the server log and counts up how many times
13 AOL1.AOL.com came I have no idea who it was behind that
14 machine or how many. So, it could have been a child, it
15 could have been an adult, it could have been the same adult
16 on repeated occasions, because there might be ten listings in
17 the server log that say aol1.aol.com coming in, say, at 10:00
18 a.m., and then maybe at noon aol1.aol.com came in again, and
19 then at 4:00 p.m. in the log it might show aol1.aol.com
20 again, but I would have no way of knowing who it was or how
21 -- or anything.
22 Q So, when you try to determine the number of unique
23 domains that have visited your Web site would that
24 underestimate or overestimate the number of actual people who
25 have come and looked at your Web site?
62
1 A Well, it's clearly a lower bound, because what it really
2 estimates is the number of unique computers that came to the
3 site, it does not give anything but a lower bound on how many
4 -- on the minimum number of people who could have come. And
5 in fact that's one of the impetuses for our research on
6 counting the number of users, because up until the time that
7 we started our research on Internet measurement people were
8 trying to estimate the number of computer users worldwide by
9 counting the number of machines connected to the Internet and
10 multiplying by a number. So, for example, the rule of thumb
11 factor or the number was some number between five and ten,
12 because the conventional wisdom was many years ago or even
13 five years ago that there were about five to ten people
14 associated with each computer domain, but over time that's
15 clearly become untrue because -- for a number of reasons;
16 one, because of hosts like AOL, which have five million users
17 but only a very small and finite number of domains; hosts
18 like Compuserve, compuserve.com, for example; and through a
19 procedure called, for example, dynamic allocations, so at
20 Universities and other businesses IP addresses are assigned
21 dynamically on the moment you log in and those numbers can
22 change and are not necessarily the same number associated
23 with the same computer --
24 JUDGE DALZELL: When you say dynamically, a word you
25 use fairly frequently in your declaration, what do you mean?
63
1 THE WITNESS: I mean at that moment, in real time,
2 so, in response to something happening in the environment.
3 In this context of dynamic allocation of IP addresses, that
4 means at the moment that someone needs to connect to the
5 Internet from, say, a computer in a computer lab at a
6 university that computer is assigned a free domain name and
7 IP address at that moment --
8 JUDGE DALZELL: On the spot?
9 THE WITNESS: -- on the spot, right. So, dynamic
10 means in real time something is happening.
11 JUDGE SLOVITER: And does the number come back, is
12 it used and then never used again?
13 THE WITNESS: No, it could be used again, but it
14 might be by another machine in the lab on another day,
15 another time, another moment, whatever. So, the best you can
16 do if you're trying to count -- and the reason obviously I'm
17 interested in this is from a commercial perspective. So,
18 it's very important to get as good a count as possible of the
19 people in front of the machines, not the machines. And, so,
20 we have tried to move away or make arguments that we must
21 move away from counts of host and then multiplying by a
22 factor of five or ten, which is now meaningless because some
23 hosts are single-user hosts. In other words, my machine,
24 collette.ogsm.vanderbilt.edu just has me on it, so that's
25 called a single-host machine or a single-user machine, but
64
1 other hosts, as I've already said, have thousands of people
2 associated with them. So, what we have to do is count the
3 users. So, the only way to know how many people are coming
4 to your site and, particularly because of other problems like
5 the spiders and Bots that go out searching and hit the site
6 and count as hits, the only way to know is to count the
7 people on the other side.
8 BY MR. HANSEN:
9 Q And if we took your computer and ran the number of hits
10 that your computer received on a particular day, and then
11 also ran the number of unique domains that had been to your
12 site on a particular day, the number of actual human beings
13 would likely be somewhere between those two numbers?
14 A Right, but in my particular case, on our server, much
15 closer to the number of unique domains and that's because we
16 do not serve, you know, tens of thousands of pages, we're a
17 research center site and we put up our research papers and we
18 have thousands of pages. But a site like Pathfinder, for
19 example, Time Warner's site, which consists of many of its
20 on-line magazines and lots of content, they report that they
21 get like two million hits a week. So that's clearly a
22 meaningless number from a commercial perspective, because all
23 it says is that many files and pictures and images are being
24 served up, but says very little about who is coming, how many
25 are coming, how often they're coming and to which pages
65
1 they're coming.
2 JUDGE DALZELL: And how long they're on?
3 THE WITNESS: And -- exactly. Duration, we believe,
4 is one of the critical variables for measuring the value of a
5 visit to a Web site in this environment and that hits are
6 meaningless, unique domains are a lower bound, but nothing
7 else and just useful as a starting point, and that the key
8 issues are visits and behavior in a network navigation
9 context, which includes duration in the Web site.
10 BY MR. HANSEN:
11 Q Professor Hoffman, are hits meaningless in this context:
12 If you are at your Web site in Vanderbilt required to screen
13 every person who comes to your site and, indeed, every one of
14 the thousands -- each time anyone goes to any one of the
15 thousands of pages on your site and determine whether that
16 person is above the age of 18 or under the age of 18, is hits
17 a meaningless number in that context?
18 A Completely meaningless. Hits, even unique domains are
19 just completely meaningless, there is no way to determine
20 from the server log file, which contains information on the
21 hits and the unique domains, who is coming to my Web site.
22 Q But you would nevertheless have to screen the -- the
23 number of times you would have to check to see if someone is
24 18 or not 18 would be roughly measured by the number of hits,
25 the number of actual times you would have to look and see is
66
1 that person 18 or not?
2 A Yes, roughly speaking, by some -- divided by some factor
3 for how many hits were on a particular page, but, yes, if I -
4 - let's just say I have a thousand pages, for sake of
5 argument, on the Project 2000 site, every single one of those
6 pages of those 1,000 pages would have to have some sort of
7 screening device, otherwise I would not be able to prevent
8 them from coming to those pages or determining who was coming
9 to those pages.
10 Q When you run the unique domain list of the number of
11 unique domains that have come to your site on a particular
12 day does it also show the country from which someone has come
13 to access your site?
14 A Well, it could, it's -- it could in the sense that unique
15 domains have identifiers associated with them. To understand
16 this idea we can introduce the notion of what we'll call the
17 top-level domain. So, again, to use my example,
18 collette.ogsm.vanderbilt.edu, that's my entire address or
19 host name or domain name, the top level is edu and that
20 identifies my machine as coming from an educational
21 institution, because it has the .edu address. Now, the most
22 common addresses in cyberspace are the .com for commercial,
23 that's the top level. So, aol.com or timewarner.com or
24 openmarket.com and so on. Edu is the second most common,
25 followed by .net, which represent Internet service providers
67
1 and other gateways to the Internet. There's .org for
2 nonprofit organizations, .gov, for government organizations.
3 So, the domain name here almost certainly has a .gov at the
4 end of it, and so on. So, it is -- and then there are many
5 other domain names, like .ca at the top would represent
6 Canada, .es would represent Estonia and so on. So, in theory
7 it is possible to run a program and count, using a table for
8 lookup, say, which would say, well, I know how many came from
9 Spain, I know how many came from Finland, I know how many
10 came from the Netherlands and so on, because in the
11 Netherlands they usually use a .nl as the top-level domain.
12 So, you can get -- but that only gives you an underestimate,
13 because increasingly the .com address is being used abroad
14 and that didn't used to be the case, but is now increasingly
15 the case, and the .com host is about 26 percent of all hosts
16 on the Internet. So, right now the Internet has -- it was
17 just recently measured in January, it's measured every six
18 months by Mark Lottor, and his latest measurements show that
19 the Internet has 9.47 million hosts, about, give or take. Of
20 those nine and a half million, let's round it for ease of
21 discussion, about 26 percent are .com, about 19 percent are
22 .edu, and we know that -- so that the .coms represent not
23 just U.S. commercial enterprise, but also overseas commercial
24 enterprise.
25 Q And using this system --
68
1 JUDGE DALZELL: Excuse me, what percentage are .org?
2 THE WITNESS: I think it's about three percent, a
3 little less than three percent. The .net, .org and .gov are
4 all running a little below three percent. If we look at a
5 host distribution by country, though, that was in -- the
6 latest measurements for that were taken in July of 1995. So,
7 we don't have the figures for Mr. Lottor's most recent
8 calculations, because they haven't been done yet; however,
9 those distributions show that 60 percent of hosts were
10 thought to originate from the United States and 40 percent of
11 those hosts, and in July, '95 the hosts were running a little
12 over six and a half million, now it's almost ten million, so
13 it was about 60-40 U.S., non-U.S., and the distribution -- I
14 don't remember exactly, it was United States followed by --
15 JUDGE DALZELL: And the source you're citing is
16 what?
17 JUDGE SLOVITER: Lottor.
18 JUDGE DALZELL: Lottor?
19 THE WITNESS: Lottor, L-o-t-t-o-r, Mark Lottor, he
20 runs a company called Network Wizards and as a service to the
21 Internet community he runs a program which counts the number
22 of hosts on the computer every six months. I don't -- I
23 cannot find my... oh, here it is, I found it. My listing is
24 United States had a little over 60 percent, followed by
25 Germany, United Kingdom, Canada, Australia, Japan, the
69
1 Netherlands, France, Finland and Sweden, and those are the
2 top ten. Now, the distribution now is thought to be 60-40,
3 even though we don't know yet, but we believe it's moving
4 towards 60-40 and it was at 64-36. So, it's clearly moving
5 toward parody and that seems -- is also borne out by counting
6 the number of networks connected to the Internet, which is
7 now moving toward a parody distribution of about 50-50,
8 meaning about 50 percent of networks connected to the net are
9 in the U.S. and about 50 percent of networks connected to the
10 Internet are non-U.S.
11 JUDGE DALZELL: Is that also Mr. Lottor's work?
12 THE WITNESS: That is also Mr. Lottor's work, with
13 also John Quarterman, who provided some of these statistics
14 based on reanalyses of Mr. Lottor's data.
15 BY MR. HANSEN:
16 Q Professor Hoffman, you were present in court yesterday
17 when Ms. Duvall did her demonstration?
18 A Yes.
19 Q And you saw her take us all to a site that was in London,
20 is that correct?
21 A Yes.
22 Q Is it fair to say that it takes just as many clicks to go
23 a site in London as it does to go to a site in Philadelphia?
24 A Yes, or just as few, as the case may be.
25 Q Now, I'd like you to -- I'd like to refer you back to
70
1 Defendant's Exhibit 13-A, which was the Little Women search.
2 (Pause.)
3 A Yes.
4 Q Now, the particular entry on that page that you were
5 questioned about, the see-hot-pictures-of-naked-women page,
6 do you know whether that particular site if I clicked on it
7 would be blocked by Surf Watch?
8 A I don't know.
9 Q Let's look at Defendant's Exhibit 49, which was the --
10 which was Bianca's site which you were questioned about.
11 (Pause.)
12 A Yes.
13 Q Now, Mr. Baron asked you to read Technology Measures 1
14 and 2, he didn't ask you to read Technology Measure 3, would
15 you read that? It's Number 4, but Technology Measure 3,
16 would you read that one, please?
17 A Yes, Technology Measure Number 3: "We heartily support
18 all self-imposed Internet content selection solutions, such
19 as Surf Watch and PICS."
20 Q Now, the three technology solutions that are suggested on
21 this site, do they have anything in common?
22 A Yes, they're all user-oriented solutions, because their
23 activity and control all would reside in the hands of the
24 user or the people who are accessing the content or
25 interested in accessing the content.
71
1 Q Does this site suggest any method by which the content
2 provider could insure that no one under the age of 18 was
3 visiting their site?
4 A No, and I believe that's because no such solutions are
5 possible. And in fact I think it's instructive that they are
6 requiring you to tell them when you don't wish to be able to
7 go there, because that's the only way that they can know is
8 if you tell them.
9 Q Thank you.
10 MR. HANSEN: Your Honors, given the objection that
11 was raised at the beginning of this, I just want to make sure
12 that her declaration went in as her direct testimony?
13 JUDGE DALZELL: Absolutely.
14 JUDGE SLOVITER: I think so --
15 MR. HANSEN: Okay, thank you.
16 JUDGE SLOVITER: -- if it didn't, it does now.
17 MR. HANSEN: Thank you, your Honor.
18 JUDGE SLOVITER: Do you have any --
19 MR. BARON: Subject to our objection, your Honor.
20 JUDGE SLOVITER: Pardon?
21 MR. BARON: Subject to our objection on the
22 paragraph.
23 JUDGE DALZELL: Right.
24 JUDGE SLOVITER: All right.
25 JUDGE DALZELL: Do you have any recross?
72
1 MR. BARON: No, your Honor.
2 JUDGE SLOVITER: Okay. Judge Buckwalter?
3 JUDGE BUCKWALTER: I just have a very few questions.
4 Throughout your -- well, not throughout your declaration, but
5 in your declaration, as well as others, there's reference to
6 the Internet as being a truly democratic information flow and
7 I think you say in 24 a democratic form of communication,
8 what do you mean by that when you say that?
9 THE WITNESS: I mean that the Internet, particularly
10 as compared to traditional communication media and even some
11 other forms of new media, like other interactive media, is
12 truly a revolution in the sense that for the first time in
13 the history of communication media users or individuals can
14 provide content to the medium. So, in addition to accessing
15 information or content they can also provide information to
16 the medium. And the other unique feature is coupled with
17 this idea of interactivity, so that not only can you and I
18 communicate with each other through the medium, something we
19 call person interaction, but I can communicate directly with
20 the medium, something we call machine interactivity, and
21 that's the idea where I can both access content and provide
22 it. So, for the first time there is an opportunity for all
23 people or any person who has access to the medium to put
24 their opinion on the medium or in essence to have a voice in
25 society as represented by the Internet.
73
1 JUDGE BUCKWALTER: Without any government
2 interference, does that --
3 THE WITNESS: Without any --
4 JUDGE BUCKWALTER: -- have something to do with your
5 the -- the --
6 THE WITNESS: No, not really. No, I meant it in the
7 sense that there was no -- no, I meant it more that the
8 medium does not discriminate on the basis of the individual's
9 either accessing or providing the content. So, for example,
10 if I put a site up, which I did, the Project 2000 site, my
11 site has just as much chance or is just as likely to be
12 visited by people as a site by a communications conglomerate
13 like Time Warner, because there is nothing inherent in the
14 medium keeping someone from coming to Project 2000, there are
15 no barriers, there are no gateways, they don't have to pay to
16 get there --
17 JUDGE BUCKWALTER: But there is a -- there is a Big
18 Brother overlooking the media -- or overlooking the Internet
19 in a sense, isn't there? If it's not the government it's the
20 people who for example have the -- in these directories
21 you're talking about who make choices as to what goes in the
22 directory?
23 THE WITNESS: Well, I don't look at that -- I don't
24 think of that as Big Brother --
25 JUDGE BUCKWALTER: Well, no, I mean maybe not as Big
74
1 Brother, but there's somebody out there. And on the on-line
2 discussion forums, for example, isn't there somebody who
3 steers the discussion in some way?
4 THE WITNESS: No, not necessarily. On UseNet news
5 groups, there are two types of UseNet news groups, if that's
6 what you're referring to?
7 JUDGE BUCKWALTER: Yeah, I mean --
8 THE WITNESS: And those -- there are moderated --
9 JUDGE BUCKWALTER: -- on some discussion forums
10 isn't there somebody who steers and focuses the discussion?
11 THE WITNESS: Well, it depends what you mean by --
12 no, I am not aware of anyone --
13 JUDGE BUCKWALTER: It's not an open --
14 THE WITNESS: -- on un-moderated discussion lists
15 like UseNet news groups, for example, who steers or focuses
16 the discussion. The people themselves determine the content
17 and the focus and the positioning of the discussion, but
18 there is no person on the shoulder of the UseNet news group
19 if it's un-moderated saying now we will talk about X and
20 tomorrow we will talk about Y.
21 JUDGE BUCKWALTER: I only raise that question
22 because I was surfing or browsing magazines, which is what we
23 used to do --
24 (Laughter.)
25 JUDGE BUCKWALTER: -- and The Atlantic magazine, in
75
1 this month's article -- that's on something called paper --
2 (Laughter.)
3 JUDGE BUCKWALTER: -- raised this, suggesting that
4 the most popular on-line discussion forums tend to be not
5 purely democratic by quasi-authoritarian in spirit, with an
6 active systems operator who both steers and stimulates
7 debate.
8 JUDGE SLOVITER: Maybe you put on the record --
9 JUDGE BUCKWALTER: On the record, that's --
10 JUDGE SLOVITER: -- where you're --
11 JUDGE BUCKWALTER: -- the -- that's attributed to
12 James Fowell (ph.), the Washington editor of The Atlantic
13 magazine and it's their April issue.
14 JUDGE SLOVITER: Okay.
15 JUDGE BUCKWALTER: And his position was that for the
16 time being that the editors and other data winnowers are
17 becoming important in this whole scheme of things, because
18 they do actually overlook the system in some way and --
19 THE WITNESS: Well, there is no question that there
20 are a number of gatekeepers, if you want to think of it from
21 that perspective.
22 JUDGE BUCKWALTER: Gatekeepers, okay. Well, that's
23 the terminology, I --
24 THE WITNESS: However, they are definitely not, at
25 least from my perspective -- or have a Big Brother component
76
1 to them. And particularly on the UseNet news groups, just to
2 use that example, it really -- if they're not moderated
3 people are free to say and post and do what they like, if
4 other people don't like it then they will respond by saying,
5 I don't like that, a process we sometimes refer to as
6 flaming. But the whole behavior on the group is very organic
7 with no one necessarily determining now we will do this and
8 then we will do that.
9 JUDGE SLOVITER: What does organic mean in that
10 context?
11 THE WITNESS: Well, it flows -- it evolves
12 naturally, there is no one in charge of the process, it is
13 allowed to grow and flow naturally as events unfold.
14 JUDGE BUCKWALTER: Like a conversation at a cocktail
15 party.
16 THE WITNESS: Exactly. Now, there are
17 gatekeepers --
18 JUDGE BUCKWALTER: But it's not that exactly though,
19 is it?
20 THE WITNESS: Well, I think it's more like that --
21 JUDGE BUCKWALTER: Well, okay, we won't debate that.
22 THE WITNESS: -- than like the way that you
23 proposed, because the Internet is composed of -- for example,
24 on UseNet news there are approximately 15,000 UseNet news
25 groups and, by and large, I would say that the behavior is
77
1 very open and democratic with access to all, you can say what
2 you like, other people can respond in kind or not, you are
3 not required to respond, and really there is no one in charge
4 in a broader sense. The same is true on the Web, there are
5 many indexes, there are not just one index and that's it and
6 that's the only one you can list in and if you don't list
7 there, forget it, you're no one.
8 JUDGE BUCKWALTER: I understand the point you're
9 trying to make.
10 JUDGE SLOVITER: Did you have any more questions?
11 JUDGE BUCKWALTER: No, I think that's all then.
12 JUDGE SLOVITER: Judge Dalzell?
13 JUDGE DALZELL: I have a number of questions. First
14 of all, these -- this hierarchy you referred to, the point
15 that .com means commercial, that .edu means education, these
16 are self-given names?
17 THE WITNESS: No, they are -- there is a
18 registration process that you have to go through for
19 addresses --
20 JUDGE DALZELL: That's what I thought.
21 THE WITNESS: -- through an organization called
22 Internick (ph.) and domains have to be registered so that
23 they can be connected to the Internet.
24 JUDGE DALZELL: And also so that they're not
25 duplicated?
78
1 THE WITNESS: Yes, that's the most important point,
2 so that you have a unique identifier in cyberspace for your
3 host computer to be connected to the Internet.
4 JUDGE DALZELL: And so Internick, somebody at
5 Internick makes a judgment, correct? For example, if my
6 daughter wanted to register and say I'm an edu somebody there
7 would say that's ridiculous, you're just a kid?
8 THE WITNESS: Yes, there are specific rules for --
9 which are fairly broadly defined, but rules nonetheless
10 governing the use of the top-level domains, particular for
11 .com, .edu, .net, .org and .gov. I think there are other
12 organizations besides Internick that register and the rules
13 are different, particularly for some of the European or
14 overseas addresses, because it could also be the case that it
15 might say .es, which stands for Estonia, but it's not
16 necessarily the case that those hosts originate in Estonia.
17 So, it's very complicated.
18 JUDGE DALZELL: Okay. Referring now to your
19 declaration, in Paragraph 31, Footnote 1 there has a number
20 of statistics and the footnote begins by saying, "The most
21 recent figures, decisionmakers are using for business
22 planning and research purposes," do you see that?
23 THE WITNESS: Yes.
24 JUDGE DALZELL: And then it makes reference to the
25 "so-called total core economy for electronic commerce on the
79
1 Internet will approach $45.8 billion by the year 2000," et
2 cetera.
3 THE WITNESS: Mm-hmm, yes.
4 JUDGE DALZELL: Where do those numbers come from?
5 THE WITNESS: The first source -- these all come
6 from analysts --
7 JUDGE DALZELL: Pardon me?
8 THE WITNESS: Analysts.
9 JUDGE DALZELL: Okay, Wall Street analysts?
10 THE WITNESS: Yes.
11 JUDGE DALZELL: Okay.
12 THE WITNESS: Or research analysts who specialize in
13 the Internet. I put them here just to -- first of all to
14 show the enormous range in the estimates, from very small to
15 very large, I think by and large reflecting that we really
16 don't know what's going to happen in the long run. The first
17 estimate comes from Forrester Research, the second estimate I
18 believe comes from Alex Brown and Sons, and then the third
19 one comes from Hamberg & Quist (ph.), and these are different
20 analysts who are involved in assessing the business
21 opportunity for the Internet.
22 JUDGE DALZELL: Who are advising -- for the purposes
23 of advising investors on where to put their money?
24 THE WITNESS: As one example, yes. In the case of
25 Forrester Research no, they do -- their clients, they do
80
1 research for their clients on, say, strategic opportunities
2 on the Internet, in which case it's still important to know
3 from an investment perspective, say if I wish to open up a
4 commercial enterprise on line, you know, what -- you know,
5 how much money could I make, for example.
6 JUDGE DALZELL: Okay. Page 10, Paragraph 40, just
7 so I'm absolutely sure I understand what you're saying here,
8 when you say, and now I'm quoting, "because network
9 navigation is nonlinear," when you use the word nonlinear
10 there what exactly do you mean?
11 THE WITNESS: Exactly what I mean is that the
12 navigation process is not strict ordered and sequential. So,
13 for example, it's not a rough linear menu, meaning things
14 fall in a line in order, first one, then you must go to two,
15 then you must go to three, then you must go to four, as if
16 they were literally ordered on a line and I had to proceed in
17 that fashion. The network navigation experience on the
18 Worldwide Web is nonlinear in the sense that either I might
19 be presented with a set of choices on a Web page which are a
20 list, but I can go anywhere on the list I want, I don't have
21 to go in order, or, as increasingly is the case, they might
22 be presented to me graphically in means of different images
23 or maps or pictures, and I simply move my mouse and point to
24 the particular area on the map on which I want to go and then
25 I'm off.
81
1 JUDGE DALZELL: All right, that's very helpful,
2 thank you. You also say on Page 21 in Paragraph 93, you make
3 what seems to me to be an extraordinary statement and I just
4 want to draw you out on it a little bit. You referred to the
5 -- I assume the Internet and the capacity for many-to-many
6 decentralized communication at --
7 THE WITNESS: I'm sorry, would you repeat the
8 paragraph, please?
9 JUDGE DALZELL: 93.
10 THE WITNESS: Yes.
11 JUDGE DALZELL: You refer to it as, quote, "the most
12 important innovation to human society since the development
13 of the printing press," close-quote. Now, that's a pretty
14 extravagant statement, wouldn't you agree?
15 THE WITNESS: I do -- yes, but I do believe --
16 JUDGE DALZELL: But do you stand by it, or is it
17 just --
18 THE WITNESS: Yes, I believe that the Internet is
19 the most important communications innovation to human society
20 since the development of the printing press. So --
21 JUDGE DALZELL: Because?
22 THE WITNESS: Because it allows for -- because of
23 it's many-to-many nature it allows for a level of
24 communication and interactivity among human beings which is
25 unprecedented in our society, and it also allows for
82
1 individuals in our society to have the opportunity to
2 contribute information in a mechanism that was never before
3 possible.
4 JUDGE DALZELL: All right. In Paragraph 101 on Page
5 22 you make the statement, "The act will have a negative
6 impact on commercialization, because many providers will
7 either exit the market or simply never enter." I'm not quite
8 sure why you say that.
9 THE WITNESS: Well, I believe there is already a lot
10 of evidence that the act will have negative consequences on
11 commercialization of the Internet.
12 JUDGE DALZELL: What evidence are you aware of in
13 your area of expertise?
14 THE WITNESS: From commercial providers and other
15 people who are considering becoming commercial providers who
16 are very concerned about the impact of the act either on
17 their business or on potential for their business. And --
18 JUDGE DALZELL: How do you know that?
19 THE WITNESS: How do I know --
20 JUDGE DALZELL: How do you know that they're
21 concerned?
22 THE WITNESS: Because they have told me.
23 JUDGE DALZELL: Okay. And they have told you that
24 they haven't entered the business or --
25 THE WITNESS: They have told me that they're
83
1 considering -- I have had conversations with providers who
2 are considering exiting the business, providers who already
3 have, for example, removed material because they are
4 uncertain of its impact on people, and people who were
5 thinking of getting on line and are now very concerned. For
6 example, women who are considering getting into commercial
7 enterprises. I participated in a forum on Compuserve in a
8 section devoted to women and business, and I was presented as
9 an expert that the women could interact with -- or men too,
10 but it largely drew women who were very interested in
11 starting up enterprises that in some way involved the
12 Internet. And for women the Internet can represent a very
13 interesting business opportunity because it presents the
14 potential to work at home, for example, so you could still be
15 involved in the rearing of your children and you could still
16 potentially run a very profitable business yet out of your
17 house, which is another example of how it's democratic
18 because the entry barriers are very low, you don't need a lot
19 of capital investment in order to set up a site on the
20 Worldwide Web. However, the women are very concerned about
21 not only the technical issues involved or some of the more
22 maybe conceptual issues with how would I use this medium, but
23 also the legal issues of what will it mean for me, this is
24 now too complicated, I won't be able to figure it out, you
25 know, I'm just not going to get involved in this. And, so, I
84
1 do see in my work an enormous amount of concern on the part
2 of providers or potential providers, and in fact I would
3 suggest that the concern is even more potent for the small
4 providers. And, so, from the perspective of, say, the small
5 business or an individual business person or what we might
6 refer to as a mom-and-pop that the fear is very real. It
7 might be less of a concern for Time Warner who may feel, oh,
8 well, we will have the legal resources to deal with these
9 issues as they arise, but for small providers that's not the
10 case. And, so, in that sense the democratic, open, low-
11 barrier nature of the net becomes at risk.
12 JUDGE DALZELL: Okay. And lastly, just to make sure
13 I understand your testimony, Paragraphs 107 through 111, the
14 figures in those paragraphs, do they all come from Mr.
15 Lottor?
16 THE WITNESS: No, they come from a number of
17 different sources.
18 JUDGE DALZELL: All right, could you briefly
19 summarize for us where they come from?
20 THE WITNESS: Yes. The source in Paragraph 107 --
21 well, actually I should clarify that most of these numbers if
22 we were to trace them back come from Mark Lottor's analysis
23 of host counts on the Worldwide Web, the data are then
24 reanalyzed by primarily two different individuals, the first
25 individual is Tony Rutkowski, he was --
85
1 JUDGE DALZELL: Could you spell that, please?
2 THE WITNESS: Yes, R-u-t-k-o-w-s-k-i. He was
3 formerly the director of the Internet Society and he is now
4 with General Magic, a software company in California. And
5 Mr. Rutkowski performs reinterpretations or reanalyses or re-
6 parsings of Mr. Lottor's data, which is just presented in a
7 tabular form, it is not particularly interesting from a
8 commercial perspective. And, so, these data come from him or
9 from Mr. Quarterman, who runs a strategic consulting firm for
10 Internet use in Austin and also performs reanalyses for
11 strategic purposes.
12 JUDGE DALZELL: Now, are those in articles that have
13 been published?
14 THE WITNESS: No, they're on the Internet, they are
15 not in -- do not appear in peer-reviewed journals. These
16 numbers change the next day.
17 JUDGE DALZELL: Okay, thank you.
18 JUDGE SLOVITER: Okay. Dr. Hoffman, do the -- let
19 me take you to the concept of flow that you talk about in
20 your declaration and a little bit in your examination here
21 today. Do the experts in the field of psychology accept the
22 concept of flow? In other words, is it a recognized concept
23 by respected scientists in the field? I'm not sure that's
24 exactly the Daubert standard, but we'll --
25 THE WITNESS: Absolutely, the answer is yes. The
86
1 concept was developed by a psychologist, Mahayli Gezens (ph.)
2 Mahayli, and he has done some work on his own, with his wife
3 and many other co-authors, all of it published in peer-
4 reviewed, refereed scholarly journals in the psychological
5 literature. And he has actually written several popular
6 books on the topic, one of the best known is Flow: The
7 Psychology of Optimal Experience, which is a book not exactly
8 for the lay person, but more popular than his other scholarly
9 work. He has developed the concept in a very generic
10 context, in other words, that flow is a construct that
11 describes people's experiences in situations I described
12 previously, for example playing chess, rock climbing,
13 dancing, things of that nature. Additionally, the concept
14 has achieved recognition in the organizational studies
15 literature by workers who are studying human-computer
16 interaction and believe that the concept also has merit and
17 utility there. So, for --
18 JUDGE SLOVITER: Well, was -- then is this concept
19 of flow as related to this interactive computer relationship,
20 is that also accepted in peer-review articles?
21 THE WITNESS: Well, yes, I'm happy to say now that
22 it is, because that is our concept and our paper on that
23 topic will appear in July in the Journal of Marketing, which
24 is the top journal in the marketing field and is peer-
25 reviewed, refereed and double-blind.
87
1 JUDGE SLOVITER: All right, but if you remove the
2 concept of flow or you set it aside and this state called the
3 pleasure of intrinsically motivated experiential flow state,
4 all of which I gather means that people feel good --
5 THE WITNESS: Right.
6 JUDGE SLOVITER: -- when they use a computer, so
7 that -- when it goes back and forth, you know --
8 THE WITNESS: Yes -- or -- well, yes.
9 JUDGE SLOVITER: Okay. But if you set that concept
10 aside at the moment would you still reach the bottom line,
11 which I gather is the bottom line of some of your
12 declaration, that it's important for users to be able to jump
13 from hypertext link -- one hypertext link to another in a
14 seamless fashion because it facilitates the use of the
15 Internet or Worldwide Web as a goal-directed approach, by
16 which I understand you are saying that this is a way of
17 getting information, if you want information, it's the same
18 as going to a library; a different method of going, but it's
19 still important because it facilitates that kind of research,
20 let us say. Is that basically what it comes down to?
21 THE WITNESS: Yes, that's -- no, that's exactly
22 correct because, as we state in our research papers, the flow
23 experience is not necessarily achievable by every person who
24 gets on line --
25 JUDGE SLOVITER: I can understand that.
88
1 (Laughter.)
2 JUDGE SLOVITER: I mean, there might be -- I assume
3 there might be frustrations as well.
4 THE WITNESS: Yes -- no, in fact we -- the reason
5 that the flow concept is of interest is because it allows us
6 to study precisely frustrations and the things that might
7 keep people from having a good time or enjoying themselves.
8 Nevertheless, whether we could get into flow or not on any
9 particular occasion or whether even I could ever get into
10 flow, because we believe some people will never get there,
11 the concept of network --
12 JUDGE SLOVITER: It's like nirvana maybe.
13 (Laughter.)
14 THE WITNESS: Well, it's related to peak experience,
15 but not the same, yes. Whether we --
16 JUDGE SLOVITER: But I'm more interested in the
17 concept of getting information, which I think --
18 THE WITNESS: Yes, we -- I completely believe that
19 the --
20 JUDGE SLOVITER: -- is an entirely different
21 concept.
22 THE WITNESS: Absolutely, network navigation, the
23 process exists regardless of whether you will achieve flow or
24 be in the flow state or not during that process. And network
25 navigation is the process of self movement or direction
89
1 through cyberspace and that process is impeded or is
2 potentially impeded by the idea of a necessity to register or
3 to say, here I am now at yet another site, because
4 potentially then I no longer can move seamlessly through
5 cyberspace.
6 JUDGE SLOVITER: And then when you say seam -- what
7 do you mean by seamlessly?
8 THE WITNESS: Seamlessly meaning from click to
9 click. There is a lot of evidence that the explosive growth
10 of the Worldwide Web is due to word of mouth, which means
11 that people see how exciting it is and then they tell someone
12 else. And the nature of that excitement comes from being
13 able to one minute I'm in Paris, the next I'm in Finland.
14 JUDGE SLOVITER: Okay, but if you set aside
15 excitement, because I must -- I mean, set aside that concept
16 and go to the information-retrieval sort of concept, then you
17 would put seamless -- is it fair -- because I'm just trying
18 to understand what you're saying in language I can
19 understand, is it fair that you analogize seamlessness to
20 walking into a public library without having to register?
21 THE WITNESS: Yes, exactly.
22 JUDGE SLOVITER: Okay, then I understand. Thank
23 you.
24 Did our questions elicit -- evoke any questions by
25 counsel?
90
1 JUDGE DALZELL: But you're saying that from, as it
2 were, a marketing analysis point of view that the
3 seamlessness of going from hyperlink to hyperlink is itself
4 what has attracted so many people to use this innovation?
5 THE WITNESS: Well, not even from a marketing point
6 of view, I'm suggesting from a human communication point of
7 view. So, it's much broader than from a commercial
8 perspective, because we also study the behavioral aspects of
9 being in cyberspace. And it is this ability to move
10 seamlessly through the Worldwide Web that we believe has
11 contributed to its explosive growth, yes.
12 JUDGE SLOVITER: So, you're saying they get a high
13 when they can jump from one link to another like I or Judge
14 Dalzell or Judge Buckwalter might get a high just by going
15 into a library and being able --
16 (Laughter.)
17 JUDGE SLOVITER: -- being able to look at the books?
18 (Laughter.)
19 JUDGE SLOVITER: Other people might not, but we
20 might.
21 THE WITNESS: But some people will, that's right.
22 And notice that your high of being able to look at the books
23 is very nonlinear.
24 JUDGE DALZELL: But it's more than a high, isn't it?
25 I mean, it's a little more mundane than a high, it's just
91
1 easy, it's just easy?
2 THE WITNESS: It's easy, yes, it's easy; you might
3 get high, you might not, but it's easy.
4 (Laughter.)
5 JUDGE SLOVITER: Mr. Baron, I apparently evoked some
6 questions -- or maybe Judge Dalzell did from you.
7 RECROSS-EXAMINATION
8 BY MR. BARON:
9 Q Professor Hoffman, in response to Judge Dalzell's
10 questions you mentioned some out-of-court statements of women
11 being concerned or others being concerned about the effect of
12 the act and you hearing them say that to you, correct?
13 A Yes.
14 Q And you stated that some of these women or others
15 represent mom-and-pop businesses or small business providers,
16 correct?
17 A Yes.
18 Q Do any of these mom-and-pop businesses or small business
19 providers, are they in the business of providing sexually
20 explicit materials?
21 A I don't know, I mean, some of them might be. Some of
22 these conversations take place on an on-line community called
23 "the Well" and, while I know the people's names, I don't
24 necessarily know the nature of their business.
25 Q You can't give any concrete examples of the nature of the
92
1 businesses where people are concerned about the effect of the
2 Communications Decency Act?
3 A You mean do I know the particular lines of work? Well,
4 in the case of people that are thinking about getting into
5 the business they are very vague in the sense that they are
6 thinking of providing some sort of information. And in fact
7 a lot of times we get calls from people who would like us to
8 consult on projects in which they say what would the
9 opportunities be and, so, part of the work is to try to
10 identify, here are some opportunities for providing
11 information in cyberspace that might be profitable. In other
12 cases, like, for example, there are people who sell T-shirts
13 on line, things of that nature, people who sell posters. I'm
14 trying to think of ones that I know about, things -- those
15 are what I would consider small providers or mom-and-pops,
16 people selling catalogues to information, stuff like that.
17 MR. BARON: I have nothing further.
18 JUDGE SLOVITER: Mr. Hansen?
19 FURTHER REDIRECT EXAMINATION
20 BY MR. HANSEN:
21 Q Professor Hoffman, I would first like to follow up on
22 Judge Buckwalter's question about moderated news groups. Do
23 you know what percentage of UseNet news groups are moderated
24 in the way Mr. Fowell was suggesting in the Atlantic article?
25 A No, I have no idea.
93
1 Q Do you think that the percentage of moderated UseNet news
2 groups is a relatively small percentage?
3 A I -- well, out of 15,000 I would guess that it is,
4 because I believe it to be the case that most of the news
5 groups on UseNet news are not moderated.
6 Q I would also like to follow up just a second on the Chief
7 Judge's question when she asked you about is it like getting
8 into the library without having to check in at the front
9 desk. Is the nature of the hyperlink process such that you
10 can go effortlessly from the fourth floor of Widener Library
11 in Boston to the third floor of Carnegie Mellon's library
12 in...
13 UNIDENTIFIED SPEAKER: Pittsburgh.
14 MR. HANSEN: Pittsburgh, I'm sorry.
15 (Laughter.)
16 BY MR. HANSEN:
17 Q In Pittsburgh without ever having to travel back and
18 forth, is that the nature of what hyperlinks are all about?
19 A Yes. And even more than that though, if we -- once we
20 went from a library in one city and one state to a library in
21 another city and another state through one click, it's also
22 the case that it would be as if every single book on every
23 single shelf you had to register, because every single page
24 would require some sort of registration process. So, it
25 would be much more onerous than simply checking in at the
94
1 door, it would be every single book I wanted to select I
2 would have to go through a process to determine whether I
3 could select it or not.
4 MR. HANSEN: Thank you, your Honor.
5 JUDGE SLOVITER: Any more? The Court would like the
6 plaintiffs at some appropriate time to annotate Dr. Hoffman's
7 declaration with the sources that she gave us in testimony,
8 because I think maybe many of us did not have an opportunity
9 to put them down. Is there any objection to that?
10 MR. BARON: No, your Honor.
11 MR. HANSEN: We would be happy to do so, your Honor.
12 JUDGE SLOVITER: All right, thank you. Thank you
13 very much.
14 (Witness excused.)
15 (Discussion held off the record.)
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