The History and Future of the Book: Issues

The Debate

On the 14th of April 2005, Cornell University hosted a debate between an EFF staffer, a copyfighting academic, and legal heads of the RIAA, MPAA, Napster II and Universal. The three-hour debate raised numerous issues not only to do with peer-to-peer filesharing, but also with the history of expression, with the rights of publishers and distributors, with those of writers and readers, viewers, and listeners, and with the potential futures for digital texts.

mp4: Debate of the Century.mp4 (451 MB) (the full three hours)
mp3: debateofthecentury.mp3 (165 MB) (the full three hours)

The Quicktime movies listed below are a little nicer quality but much larger files.

Transcribed excerpts from the question period give a general idea of what each query and series of responses entails. (Some are pretty long, just because they caught my interest).

Round One:
Siva Vaidhyanathan, Professor of Communications, NYU (188 MB)
Fritz Attaway, Executive VP and general counsel, Motion Picture Association of America (242 MB)
Avery Kotler, Senior director, Business and Legal Affairs Napster (217 MB)
Cary Sherman, President, Recording Industry Association of America (358 MB)
Fred von Lohmann, Senior staff attorney, Electronic Frontier Foundation (367 MB)
Alec French, Senior counsel, Government Relations, NBC/Universal (335 MB)

Round Two, Rebuttals:
Siva Vaidhyanathan (164 MB)
Fritz Attaway (74 MB)
Cary Sherman (83 MB)
Fred von Lohmann & everybody (222 MB)

Round Three, Queries and Responses:
Query: This seems to be a distribution issue—it's not an issue of wanting a system where everybody's paying nothing. It's an issue of being entrenched in this old system of everybody paying too much to distribute things in a modern world where distribution is cheap. I would like you to address that. Attaway: Do you really want movies to be made on the basis of how many commercials can be inserted in the content, rather than on the entertainment value of storytelling? I don't think so. von Lohmann (?): —Have you seen the last James Bond movie? (188 MB)

Q: How do we address the issue of incentive? i.e. What would be the incentive for compliance with these laws? von Lohmann: I want to see more carrot and less stick. (217 MB)

Q: Will the lawsuits payouts drop significantly now that the value of the infringement has dropped significantly? French: Lawsuits are an incentive. (227 MB)

Q: I think that DRM is a very strong and desirable thing for content providers but I'm wondering why I, as a consumer, should be encouraged to use any technology that locks me into a specific platform. (Computer hardware, software, iPod.) Why should I buy something today that I'll have to pay for to use again tomorrow? Vaidhyanathan: Digital rights management puts handcuffs on people who aren't doing bad things and do nothing to stop the people who want to do bad things. They're punishing the wrong people. They're punishing librarians, and researchers, and security researchers, computer scientists. They're punishing people who want to make backup copies of material they hold dear. (207 MB)

Q: Being an independent musician, and having MP3s as the lead promotion for my band, I'm wondering if shutting down services like Kazaa and Morpheus is going to hamper us? von Lohmann: The technology is what has been attacked, aggressively. Now, they say today, 'Oh no, we're only after bad business models.' Well, that's an interesting argument, today. The first Napster didn't have a business model. That didn't save it from being sued into a smoking crater. (330 MB)

Q: There seems to be a lot of rhetoric around all this, and I'd like you to address this.... You're running a tyranny of fear, with all these lawsuits... How do you expect us to stand behind you with this type of rhetoric flying around all the time? [a lot of defensive, obfuscating rhetoric...] Kotler: ...I'm jumping in and moralizing[?], and the rhetoric, personally, is that there's this equilibrium here, and if it were just allowed to go untarnished, and be out there, and you could get everything for free, and it was crystal clear and perfect, that's not an environment that we or any of our competitors who are here or who are yet to even come could compete in. And it's not an environment, as Cary said, that people would want to make music in. von Lohmann: This is, I think, a good example of rhetoric trumping reality. Let's talk for a minute about the facts that you guys [the audience] know well. You can, today, get perfect, crystal clear copies of everything for free on file-sharing networks. You have been able to for the past five years, and it doesn't appear that's going to change anytime real soon. That's the fact. Another fact is, Napster, iTunes, other companies, they all have managed to compete with free. I hope the entertainment industries help them do an even better job. I think we know how to do that, and I don't think suing lots of individual college students and relying on DRM that makes it impossible to choose what kind of equipment you want to use, I don't think that's a good step in the right direction. And while we're on the question of facts, and crying crocodile tears for these industries I would like to point out that the motion picture industry right now—for the last several years—has had their most profitable years in history. They've had record-breaking box office, record-breaking home video sales... French: You were asking about rhetoric. We just heard the rhetoric, from Fred. It's about these industries, and we heard from Fred these industries are profitable, and it's about Hollywood. And again, copyright owners are songwriters. Go to Nashville. They're not doing well. They have to take second and third jobs. It's about photographers. It's about needlepoint designers. It's about directors and people trying to produce independent films.They are the people that are copyright owners. He likes to make it a Hollywood hegemony. von Lohmann: They are not suing college kids! French: I'm talking, Fred. I'm talking, Fred. (454 MB)

Q: As soon as you move any kind of content into digital, it's automatically subject to the processes of the computer, which is to copy. And as soon as you have copies you don't have scarcity, and as soon as you don't have scarcity, you don't have the kind of economic environment you're talking of, the old-style capitalistic market where the market will set a value for items in the marketplace. So I'm wondering, especially in the movie industry, what kind of options...you have two different economic paradigms at work here that are clashing.... I'm wondering, what other kinds of business models have you put forward to take advantage of the market where there is a market? Say, something along the lines of the Google on-click advertising system. What kinds of alternatives do you have when you can't fight this uphill battle where there is no scarcity, and impose scarcity where it clearly doesn't exist. Attaway: There is scarcity because we will be able to provide you with a more attractive alternative than getting it free on p2p. Q: If you want an attractive alternative, why are you producing Die Hard 3? Attaway: So, if you don't like the movies that are produced, don't watch them. No one subpoenas you to go to the movies. I assume that you're here because you like to look at movies. If you didn't you wouldn't be here. Q: I'm a musician. Attaway: Right? You wouldn't have anything to complain about. And you are complaining. Right? Q: Well, no, I'm a musician. I'm really interested in the issue of intellectual... Attaway: The issue is, we will provide—there is a marketplace—and we will provide a product that people are willing to pay for. Q: Well, you see, that's where you're failing. ...von Lohmann: I agree with Fritz. We are in a post-scarcity environment, but that doesn't mean markets stop working. (338 MB)

Q: It was brought up last summer with the Induce Act that there would be a standard, if industries were actively inducing people to infringe then they would be held liable. This would arguably give the content industries a large veto power over any new technology which was created....How do you balance the idea that you would be able to threaten to sue...against the potential of things having value somewhat after they've been invented? French: Law is about incentives, right? That's what it's designed to do. It's designed to give the right incentives. If Grokster is upheld, that means the law creates an incentive for commercial business to set up a business model that primarily relies on legal activity, that gives them every incentive to maximize the amount of legal activity that their business encourages, and gives them a disincentive to engage in any attempt to reduce that legal activity...Another issue is this kind of idea that I think I was hearing you express, which is that any kind of innovation is meritorious in and of itself. The law has for a long time separated between good innovations and bad innovations, and has created disincentives to coming up with bad innovations...Some people come up with some pretty good drug paraphernalia. Maybe there's a great new bong out there, an innovative way of smoking marijuana. The law says that type of technology, the paraphernalia, is illegal because it's tied to a particular illegal activity. It promotes that illegal activity. So it's not a radical idea for the law to balance, is this a good innovation or a bad innovation? Are we giving the right incentives to innovators to create a new technology or business that is going to promote a socially beneficial behaviour? von Lohmann: ...He's basically saying the Soviet five-year plan is what we should have in America, right? We should have government decide before each new invention comes out, is that a naughty invention, or is that a good invention? And, given the relative power of the lobbying of the various approaches you see up here, frankly I ask you: what kind of an innovation environment does an American high technology economy need? Does it need an environment where innovators invent first? And then, if regulation is required, if in fact the new technology turns out to be the super-bong of tomorrow, as Mr. French suggests, then okay, fine. No one is suggesting that Congress does not have the power to regulate specific technologies if it feels that it is necessary. Unfortunately, what the copyright owners are arguing in the Grokster case, what they are seeking, is the opposite rule—a rule that you ask permission first, before you innovate, and only after copyright owners decide that they will allow it, in other words they decide not to lower the hammer of multimillion-dollar litigation costs, only then do you get to invent. (428 MB)

Q: This question is about the recording industry going after the original Napster. I enjoyed the original Napster not just for the free music but because of the the volumes and volumes of music that you could find on there. And I enjoyed it because it came as MP3 so that I could do pretty much whatever I wanted with it...I certainly would have been willing to pay for it...and there are studies that say people would have paid for it... I can't understand why the other recording companies...didn't try to work out something. Vaidhyanathan: We shouldn't idealize the original Napster. It was a really stupid company. It burned through $20 million of venture capital money and didn't make a dime. It ended up with the most skeletal of assets, basically its logo. (311 MB)

Q: What about the other companies, like Kazaa? Why is it still there? Sherman: Because what they did was they took advice from certain lawyers who explained how to get around the Napster decision, which basically said because there was a centralized index where all the names were, they therefore had the ability to know where a request would have been made for an infringing song and they would have stopped it... von Lohmann: To give a slightly less biased view of that story... (233 MB)

Q (Avery Kotler): What kind of a business model do we want? Can we reach a consensus? (244 MB)

Q: Why won't you let me pay the artist for the features I want? Sherman: What about the Apple DRM offends you? Is it that you're only allowed to make ten burns of a playlist? Q: All of it. Sherman: It bothers you that you can only copy your songs eight times? Q: Everything about it.... von Lohmann: If in fact there was any empirical basis for your claim, Cary, that DRM was actually keeping the music off the filesharing networks and preventing it from being widely distributed among Internet users, then I could see some sense to it, but the empirical reality is a glaring refutation of that argument every single day. (196 MB)

Q: I think the problem with the MPAA and the RIAA is that you guys have been consistently one step behind where everybody else is. ...DRMs aren't going to work, and iTunes isn't going to work, and p2p is here to stay. ...When are you going to embrace p2p as something that's here to stay, and when are you going to use it to help develop your business model to sell these albums? (282 MB)

Q: I would like you to address the international aspect, because...over the past years there has been a stronger movement towards harmonizing intellectual property laws in the entire world...Let's say we were in a utopian society (in your view) where no illegal filesharing existed that was based in the United States, and you kept pursuing all the new technologies...and they all moved abroad, the way a lot of technologies do...How would you feel that would affect innovation in the United States? Sherman: These (Kazaa developers) are not great technologists who have come up with great innovations who are figuring out how to make things better for people. These are fly-by-night profiteers who are trying to make money on a thing while they can. Vaidhyanathan: Exactly like the American music industry fatted itself, exactly like the American film industry fatted itself: this country was a fly-by-night pirate nation for most of its history. The American publishing industry was built on stealing works from England. The American music industry was there to launder money from organized crime through quasi-legitimate means while stealing a lot of labour and a lot of other creativity from African Americans. The American film industry was basically a pirate industry that stole plots, characters, and stories from American novelists and British novelists for decades, and made sure to escape the prying eyes of the Edison Patent Trust, which had threatened to shut down innovation because Edison and his lawyers were so insistent that nobody sin in terms of intellectual property. They had to flee to Hollywood where they could be out of the line of sight of Edison's lawyers. That is an important element here. We were able to develop these amazing infrastructures because we didn't care about the intellectual property laws of the rest of the world.... French: To answer your question...It's sticky. The international nature of the Internet makes it troubling and a difficult problem. Part of the solution is, like Cary said, when you harmonize, or when you have copyright protection in other countries, you go into those other countries and you— Q: But that's imperialism, isn't it. von Lohmann: Amen. French: Laws are imperialism? Q: When you go into other countries and you try to enforce your existing system on them. French: No, you go into other countries and you use their laws in that country to protect rights. Q: But you just said you were "harmonizing" them. French: It's a troubling problem also because answers like Fred's to the how-do-you-do-this issue, how do you create a solution to it, mean that American consumers essentially are going to subsidize people elsewhere in the world...because you can't enforce those laws in other countries unless those other countries have laws and then you can go into those countries and enforce your rights there. von Lohmann: ...If you take the notion of national sovereignty seriously, different countries should have the right to decide on their own intellectual property policies, just as the United States has done, and as Siva points out, for the first hundred years of our history, we were known as the Great Pirate Nation because we refused to recognize the copyrights of any non-American authors. There was copyright law for American authors in the United States, but if you were an English author you didn't get copyright protection. Why was that? Because the United States at the time was a net copyright importer. American politicians and policy-makers saw no reason that they should be emptying American taxpayers' pockets and sending that money to England...The irony is today internationally the United States...is going abroad and enforcing our trading partners at gunpoint of free trade. We love to talk about free trade and open access, but when we go overseas our US trade representative goes to countries like Singapore, like Jordan, like Chile, and says to them, You must import our copyright regime wholesale. You must enact the DMCA, you must enact a whole host of super-maximum copyright regimes: life plus seventy years for copyright term, a whole bunch of things. Granted, I don't think that was the right balance for the United States to strike at home, but I certainly don't think it's our right to tell the rest of the world what their copyright regime should be after we [ab]used copyright as a development policy to build our own country.

Q: With the right search string you can find pretty much anything that you can get off a p2p network—the normal, everyday Internet through Google. Not only that, a great majority of material that's on the Internet, that's searchable by Google, that any normal user sitting down at a home computer can find, is illegal.... Sherman: You're right. You can definitely get illegal content, but nobody thinks that Google is building a business for the purpose of promoting infringement— Vaidhyanathan: I do! (249 MB)