Posted on October 21, 2003February 27, 2005 by lhl

Just got out of the first Lessig vs Rosen debate. I think it went pretty well, was interesting, inspiring, and provacative. Like Jason commented, always interesting to see Larry’s slides evolve. They’re really tight right now, hitting on all gears, and I think really got the audience into it (and thinking). The focus definitely is where it should be; that is we’re talking about a massive shift/realignment of who and how what you can do with media/culture is being controlled, and also how out of whack the laws are with how people behave. (Lessig handled what Rosen threw out on the whole ‘piracy’ red herring beautifully)

Hillary Rosen made a point about choice that’s worth nothing. That is, the artist should be able to choose to go with something like the CC or signing all their rights over to RIAA companies (I’m not sure how many would disagree with that [some, of course], but well, that’s not really the question – the questions is are the laws out of whack wrt to digital media?).

Having given her that, I have to say that Larry let a couple of things that she said slide that got me really angry. She feigned indignity at the RPI student who was ‘victimized,’ comparing him to the 1 in 300 that gets a speeding ticket, but it’s worth pointing out that he wasn’t even the one d/ling anything. He was a CS student who wrote a tool that searched files on the network, 3/4 of which weren’t even related to the media monopoly’s copyrighted content (hooray DMCA, if we were talking about the milk man metaphor, basically it’d be like suing the supermarkets for letting people get milk elsewhere, or refrigerator makers for letting milk be kept chilled). Larry spoke a lot about the pall that the lawsuit and threat of lawsuits cast, but I’m not sure if that can really be emphasized enough. How much of a choice is it if you need a lawyer watching your back for everything you do?

Also, that being said, the whole hand-wringing about unauthorized distribution isn’t the issue anyway. The main issue is that on the computer, everything you do involved copying (see: RAM Copies, ’96 9th circuit summary, Microsoft v Business Boost), and that your unregulated uses have disappeared. And thank you Lessig for calling out Rosen on the DMCA fair use bit. When she said that the DMCA didn’t affect fair use I almost choked on myself. Tell that to Jon Johansen, or Ed Felton, or any number of students, researchers or educators. Hillary: the DMCA is a horrible, horrible law on so many levels; claiming to be associated in its making is nothing to be proud of.

So here’s the question I posed in the Q&A (slightly less eloquently):

Hillary, you argue against the need to change the law. So here’s my question. How come when I buy a song on a CD, I ‘own’ it, but when I buy a song off of iTunes, I get a EULA? I don’t own it, I’m renting it. Can I sell my iTune like I can sell my CD? George Hotelling tried to, and he couldn’t. What happens to first sale or any of the other rights I used to have?

Larry riffed on that to talk about what the ‘land-grab’ was all about, but I didn’t really get an answer from Hillary, she chose mostly to answer the other question that mine was grouped with (I got up a second late so I was far back enough in line that they started answering questions in pairs). Maybe she was turned off by my EFF hat. Or just had nothing to really respond to on the issue (does that mean I win the debate? ;P ).

Also Some notes on why Larry’s not as insane as he sounds when he talks about not making d/ling illegal:

As long as the law lets the RIAA sue for ridiculous damages ($150,000/song), they can weild lawsuits like shakedowns, suing kids for say, oh, $97.8 BILLION, enough to buy every CD sold in the US for the next century; more than enough to buy the big 5 I suspect (of course, they just settled for all the money that the students had) it’s impossible to have a productive climate; the RIAA has shown that they’re more than willing to use their legal/capital advantage over corporations and individuals alike
Hillary Rosen talking about indie labels suffering is laughable. One, the RIAA has never represented actual indies, and 2) take a look at the empirical evidence. The csmonitor did a great writeup a couple months back: Independents’ day

While executives at those labels wail about the industry’s imminent collapse, indie labels and artists are singing a much happier tune. Profits are up – in some cases by 50 to 100 percent. That’s in contrast to overall album sales, which dropped about 11 percent in 2002.

or take a look at CDBaby’s sales growth – infrickin’credible (also, Derek kicks ass)
My gut feeling is against compulsory licensing, with enough lobbying it can cut the opposite way way too easily. Look how we got reamed on the ~~CRAP~~ CARP webcasting decisions
We could pull real piracy numbers (see also: profit vs units shipped, number of artists distributed, correlation against economy as a whole) I suppose, but that’d probably distract from the main point…
Which is about the land-grab. The grab for everything you listen to and watch and read, and correspondingly/as a result, what you know and think…
As an added bonus of DRM, not only do publishers get full control over usage, which they can revoke at any time, but they also get to profile and data-mine your every access and act of ‘consumption’ for free. Thank you, come again!
random note: I’m normally not too annoyed by it, but was tonight when the debate topic was framed by the moderator as about ‘IP’ and ‘innovators.’ I mean, it was about that, but in the exact opposite of the context in which it was used. Would need the exact verbiage to rant effectively on it; but I do remember being rubbed the wrong by it; and this is coming from someone who normally uses IP freely in speaking (recognizes the technical differences, but also the public connotation, and the impact copyright has across all IP)
random note #2: before the debate started, two frat boys behind me were talking about how Lessig would be coming from an academic ‘regulate everything’ or lilliputian perspective and Rosen would talk about the ‘real’ world perspective. Hopefully the debate was able to convince them otherwise; I think they still may have gone away w/ their business bias, however. It may be worth mentioning how much stink the tiny entertainment industry has made against the much larger tech industry. Who’s restraining who’s innovation? And how will these extended IP restrictions reverberate against the wider economy at large? Look at how the CoS, Diebold, etc have abused the DMCA already? Imagine once the defense, construction industries, etc get into it, using the DMCA to silence critics (of course, they have the Patriot Act for that too)

Spectrum recorded the debate. I’m going to see if I can convince the guys down the hall to chop this up into a Research Channel show.