ILAW: "Application: Music"

Fred von Lohmann: I am Fred von Lohmann from the EFF. We have been involved in these IP battles for a number of years.

 

JZ: Tell me, Fred: What does the EFF want?

 

Lohmann: We would like you to be able to enjoy the same freedoms online that you do offline.

 

JZ: You are a strident status-quoist.

 

Fred: When it suits my purposes, yes.

 

Les Vadasz: I am Director Emeritus of Intel, and I had my 2 hours of fame during a hearing on the Hollings bill. Senator Hollings didn't like what I had to say.

 

Charles Nesson: I mean to be in this discussion not as a moralist but as a realist.

 

JZ: Fred, given your perspective--should the recording industry have the same rights after the Internet as before it?

 

Fred: There is a difference between recording industry and the music industry. There may be other mechanisms better to carry out the goals of copyright. I'm not at all sure that requires BMI, Sony, etc.

 

JZ: But as students of the Fourth Amendment know, corportions are people too. Don't you agree their rights are being infringed?

 

Fred: Black letter law, yes. But this is because when you use a computer, you're making copies as a matter of course.

 

JZ: But it isn't only black letter law; there's a bottom line loss. No?

 

Fred: They're crying crocodile tears...

 

JZ: Not real tears?

 

Fred: Greatly exagerated crocodile tears. Yes, they have seen a downturn. It may or may not be occasioned by file sharing.

 

CN: Fred, if by a form a magic you could snap your fingers and eliminate all infringing activity on P2P, would you do it?

 

Fred: No. I would change the law. I would make it reflect the fact that more people are using file sharing software than voted for Bush. I think the law ought to change with the people, not against them.

 

JZ: Realist Charlie--is it possible to sue this problem into submission?

 

CN: No, not entirely. Let's take the end user. We discussed the Verizon decision. It allows the RIAA to get the identity of the subscribers...

 

JZ: Fred, were you surprised to see Verizon losing?

 

Fred: Yes...

 

JZ: Really?

 

Fred: Yes, I was. But there were stronger arguments they made than others...

 

CN: If a strategy were devised find the identity of the ripper, I think this could make a real impact. That would part of an effective strategy for the industry.

 

Fred: Totally hopeless. Technology doesn't stay still. It's not static. Verizon is located in the US and must obey our laws. But what about the other ISPs around the world? You also have users with proxy servers.

 

JZ: I have up here Blubster.com. New and improved P2P--anonymous P2P file sharing. But user opinion is generally thumbs down.

 

Fred: CNET has defamation immunity here, but what about you?

 

JZ: The EFF can defend me.

 

Les V.: You don't need this; you can already do it anonymously.

 

CN: Let's go on to the second strategy.

 

Fred: EFF are often tarred and feathered over this--oh, we "hate" copyright, etc., etc. But what worries me is the collateral damage that is happening while this war is fought. A stalker can claim to be a copyright owner.

 

JZ: But ISPs are in the habit of alerting the subscriber.

 

Fred: But they are in no obligation to do that. This type of collateral damage is only going to pile up.

 

CN: Let me take that argument all the way. If you are the RIAA, you won't rest until you can have some form of surveillance. One of the items of collateral damage we might be looking at is the end of the end-to-end nature of the Internet.

 

[...]

 

JZ: You can very easily stop college kids with a single letter. They don't want to drive around looking for open wireless.

 

Fred: I disagree. I think college kids, especially in Palo Alto, wouldn't have to go far.

 

JZ: Let's ask Leslie, who has been a technologist for many years...how easily can we adapt technology to create reasonably good digital locks?

 

Les: To be clear, I am not speaking for Intel. I think you can make it more difficult but you cannot stop piracy. This will be a cat-and-mouse game that will go on and on.

 

JZ: I know you're not speaking for Intel, so I can show you the TCPA. Formed by Compaq, Intel, MS, etc. Wow. They came to a conclusion: they need to increase "trust." This is an open alliance coming forth with "trusted computing."

 

Les: It allows you to send someone a file, and be reasonably sure that the file won't be intercepted on the way.

 

JZ: This is about protecting your stuff from third-party snoops.

 

Les: Yes.

 

JZ: So they are creating Blubster.

 

Les: Ah...no.

 

JZ: How is it different? I had thought that securing information against prying eyes was only a part of what they were up to. I thought this was about DRM.

 

Les: You're putting me in a position to defend something about which I know nothing. But I think it's about the creator asserting rights.

 

JZ: So this is Creative Commons, isn't it? Some rights reserved?

 

Fred: I've got to rein Prof. Zittrain in. This is NOT what trusted systems are about. All of you should learn more about trusted computing. These companies are very serious about it.

 

JZ: What does it do?

 

Fred: It allows you to trust your own computer--you can trust that there has not been a virus introduced. That piece is valuable. The piece you're talking about is whether others can trust your computer.

 

[...]

 

JZ: How many people here are prepared to open up their computer to introduce a hardware hack?

 

Fred: You've made a classic error. It takes only one talented individual--say, Bunnie Hwang. Once that person posts the solution to a P2P network, at that moment other users can get it very easily.

 

JZ: Your trusted PC will still run unlabelled stuff. Is trusted computing no  threat at all, then?

 

Fred: Less of a threat than people generally believe. It may be just as easy for you to download the antidote.

 

[...]

 

Ben Adida: I am an advisor to CC. Fred, I am worried about trusted computing. The system has no way to differentiate between you and a virus.

 

JZ: Oh, come on. Taxi cab meters are trusted systems. Is that so bad? Will the next slogan be, "Free the taxi cab meters"?

 

Fred: Yes, it's bad. Free the all-purpose computer. Much more important than taxi cab meters.

 

Les: If you have an open environment like the Internet, you need to be able to try to preserve a private environment.

 

[...missed a bit here...]

 

Fred: I would hope everyone would agree that technology creators wouldn't be obligated to make their systems interoperable.

 

[...]

 

I would never say a technologist must make it easy to reverse engineer it. But trusted computing combined with the DMCA may sound death knell for general purpose PC computing. [...]

 

JZ: Questions or comments?

 

[...]

 

Tracy: I actually have a notice-and-takedown question. Qs RE Verizon: do you think colleges will be served? What policy argument could we make against it?

 

CN: The Q regarding universities is interesting. The university is supposedly in a moral leadership position. So you would think they'd be interested in this. Not a huge monetary interest. I spoke to Kevin from Vanderbilt.  I asked, "What about automating delivery of warning letters to users?"

 

Kevin: I resisted that idea. Counter to the culture at my university. We don't like to police students. This is not our problem.

 

CN: I said to Kevin, why not offer students a discount on iTunes, too?

 

Kevin: This is more palatable. This is a gift.

 

CN: A strategy to convert students to legitimate activity. This has appeal; it should have appeal to the RIAA.

 

JZ: We're edging toward new business models.

 

Andrew [?]: I am concerned about the collateral damage of the copyright war on the developing world. We're concerned more about food and water than about IP...but as to IP, others haven't really bought in. Even Jack Valenti with an army behind him wouldn't be able to enforce it. The truth is nobody listens.

 

[...]

 

Fred von Lohmann: Great report on IP rights in the international arena..IPR policy, and trade. We used to be net copyright importers; now we're net copyright exporters. Imposing maximalist IP protections.

 

JZ: You say that as if it were a bad thing.

 

Fred: I think it's a worry that one copyright regime would be forced upon the entire world.

 

Les: When a country starts developing its own software, it would start to understand this issue.

 

CN: This is information imperialism....it makes the best practical argument for the adoption of open source code software.

 

Participant from Poland: This is a machine of terror.

 

JZ: My head is spinning. First we were talking about copyright and now we're talking about MS and terror.

 

Participant: MS has brigades they send into offices to search for violations.

 

JZ: I want to move on to the strategies of spoofing and interdiction. This is the industry's "self help."

 

CN: Fred, you said once you get on KaZaA, you can easily get what you want. But I tried this morning, and I was spoofed. Isn't this an effective strategy?

 

JZ: To "spoof" is to introduce false files, to be clear.

 

CN: Most people can't avoid the spoofing.

 

Fred: This raises a lot of interesting qs. But the tech will evolve. Will this kind of thing drive people to iTunes or not? I don't know yet.

 

JZ: Could spoofing be considered in any sense contrary to the law?

 

Fred: Nope...Do a search on Google for MS and Darknet. Their conlcusion was: P2P will win.

 

Glenn Brown: I was curious about the spoofing going both ways. People change the names of songs. Section 1202 makes it illegal to falsify information RE copyright. Can that be used back against the RIAA spoofers?

 

Fred: I'd be happy to look at it. I haven't yet found something like that.

 

CN: Interdiction. When you put your songs into a file, and open it up, interdiction would be going to the file and downloading it to the full capacity. Like a targeted DoS attack. Tech war. More effective at the new release point.

 

JZ: Isn't a DoS attack illegal?

 

CN: There's a real question about that. Under the Fraud and Abuse Act...there is a gray area. We're talking about an industry with immense power. This focused attack on a single user seems to be an effective strategy, and it could be done without harming others. What willl be enough for someone to claim illegality? You have not damaged the computer to the $5,000 limit.

 

Next  time around, perhaps the Berman bill will pass.

 

Fred: First, no one is doing this. Second, plainly illegal.

 

Enough with the hypotheticals. The professors are not to be trusted. [Big laugh.]

 

[...missed a bit...]

 

Les Vadasz: The only thing that can win is a sane marketplace.

 

JZ: This moves us toward business models. Why is iTunes so revolutionary? Why couldn't they have done it three years ago? Aren't we all happy? Can't we go home now?

 

[...]

 

This is a trusted system--and you like it, Fred?

 

Fred: Yes, I do. But it doesn't solve the P2P problem. 60 million are not going to decide to do iTunes instead. It may make a lot of money. But I don't think it will displace file sharing.

 

Les V.: Remember that you're looking at the very beginning of something. I hope we will see that everything for free isn't "it."

 

JZ: What's your reaction to Terry's proposal? Going with the flow with open networks--but making sure that people are compensated.

 

CN: I like how Terry is thinking. But between here and there, there are a lot of dead bodies, and they are not dead yet.

 

Fred: I am sympathetic to ideas like Terry's. 

 

JZ: I want to ask Jeremy Williams a Q. What's your occupation?

 

Jeremy: Head of IP at Warner Brothers studios.

 

JZ: How do you react to Terry's proposal?

 

Jeremy: I have concerns. At some point someone will have to set the level of payment in the taxes. It won't be compensatory for damages, but an affirmative decision. Two effects that concern me: how can investors make decisions? And what about the governmental influence? This system could be used in a negative way.

 

Another comment. The chart says either 1/defend the current business model and 2/ develop new ones. You need both. Prof. Fisher talked about innovation and reaction. I think this process will bring about the most healthy changes.

 

Fisher's model doesn't address the disruption cost. I also don't share the confidence that this model is the right one. It would require faith to believe it is worth the disruption. 

 

[...]

 

JZ: Terry?

 

Terry: Those are helpful comments. First, as to the risk that shifting to an arrangement in which the govt. is a critical player, there are problems to address. Rent seeking, fluctuations in the availability of funds. One can mitigate them through careful design of such a system in a number of ways.  [...]

 

Second reaction: one of the difficulties of getting from here to there. I don't know what would be a big enough spur to bring about the change.  

 

Your reaction is persuasive as to what the political obtsacles would be to implementing the system. Most attractive catalyst would be a voluntary, intermediate form. An "entertainment coop." A cousin of Larry's Creative Commons. A test of the idea. Develop critical mass. Jonathan had an idea about one constituency that might sign on...

 

JZ: The Rod Stewart Protection Act. People like Rod Stewart might be in a position to want to sign on to a different deal than was available to them 35 years ago.