IP: Re: Sega tries to censor hacker discussions of Dreamcast system

[Dave Farber <farber@cis.upenn.edu>]

>Date: Fri, 6 Oct 2000 21:14:01 -0400 (EDT)
>From: Gregory Aharonian <srctran@world.std.com>
>To: farber@cis.upenn.edu
>Subject: Re:  IP: Sega tries to censor hacker discussions of Dreamcast
>     system
>
>Dave,
>         Here is something I recently sent out over PATNEWS about music,
>copyrights and the Internet.  Feel free to send it out over your list.
>Greg Aharonian
>
>!20001004  Copyrights: Lessig versus Valenti; rapper Chuck D & Napster
>
>     Last Sunday and Monday, I had a chance to sit in on an interesting
>debate between Prof. Lawrence Lessig and Jack Valenti over the future
>of copyrights and intellectual property on the Internet (given at the
>Harvard Law School on Sunday) followed the next day by a talk by the
>rapper Chuck D on copyrights, music, the Internet and Napster.  What
>follows below are my best attempts to capture the gist of what they
>said, all quite interesting.
>
>     The talks reflected the two sides of this week's court hearing in
>San Francisco over the future of Napster.  One side is the music and
>entertainment industry arguing for strict adherence to the copyright
>laws, that programs like Napster facilitate way too much outright theft,
>and if you don't like it, pass a new law in Congress.  The other side
>basically argues that some copyright theft is fine if these programs can
>be used to take down the greedy and arrogant large music and entertainment
>companies since we don't have enough money to buy legislation in Congress.
>
>     My prediction about the Napster case is that Napster eventually will
>lose - when the courts realize that Napster is pretty much lying through
>their teeth when they say that they can't afford in realtime to catch much
>of the exchange of copyright materials, and therefore conclude that Napster
>is more of a tool to promote theft than help people occasionally fairly
>share purchased goods (and the same goes for myMP3 and RecordTV).  Napster
>is trying to be both part of the establishment (through its venture capital
>investments) and to be anti-establishment (by helping people engage in
>theft), an untenable position.  Grow-up.  Either be part of the profitable
>establishment (what the entertainment companies will set up after quashing
>upstarts like Napster), or be part of the unprofitable anti-establishment
>(like Gnutella). But trying to be both is idiotic, and ultimately a losing
>strategy.
>
>     That said, here is what Lessig, Valenti and Chuck D had to say.
>
>Greg Aharonian
>Internet Patent News Service
>www.bustpatents.com/subscribe.htm
>
>                               ====================
>
>                                VALENTI v. LESSIG
>                The Future of Intellectual Property on the Internet
>                        Ames Courtoom - Harvard Law School
>                              October 1, 2000 - 7pm
>
>
>VALENTI:
>I am not a lawyer, wanted to be one, go to Harvard Law School.  Ended
>up at Harvard Business School - if I am arrogant, that's what they
>taught me  - haha.  Consider William of Occam - Occam's Razor - in
>essence, "keep it simple".  This is about private property, intellectual
>property, in the Internet era, is easy to "steal".  Judge Kaplan (DeCSS
>case) - last paragraph of the decision - "in excitement of easy access,
>when you take what is not your ... it is stealing".
>
>At Stanford Law School lecture, I asked the audience, and found out that
>9/10 law students were using Napster.  One student said "Yea, I guess
>it is stealing, but everyone is doing it."  What are they teaching at
>Stanford Law School?  Internet is breeding people who think if it is
>on Internet, it is free.
>
>In March, for MPAA, I organized a new Digital Strategies department.
>I talk with cyberspace people.  I am on the board of two Internet
>companies.  MPAA DS department is going to organize, online, offering
>movies in a variety of business models at fair and reasonable prices.
>When we do this, it will be an alternative to stealing.  We will use
>encryption, watermarks, in conjunction with hardware and software
>developers.  Again, Judge Kaplan's comment "if it isn't yours, it is
>stealing".
>
>
>LESSIG:
>Jack is sweet, but I have made a career of people hating me.  Lawyers
>created this problem.  "Future of IP" - has the word "property".
>"Intellectual Property" is not in the Constitution of the United
>States, didn't exist back then, instead they had government-backed
>monopolies.  Thomas Jefferson was a strong opponent of patents.  In
>Pennsylvania, didn't ratify Constitution until clause in First
>Amendment to override control of free speech inherent in copyright.
>Original copyright was for 14 years, with no control over translation,
>abridgement, performance uses.  In 1790, there were 127 publishers.
>For 100 years, copyright protection was only extended to Americans.
>It was supposed to be a limited right for authors, but has expanded
>dramatically in 200 years, to today's life of author plus seventy years,
>with much control of publishing/sales, and now performance, translation
>and derivatives.
>
>Until the Internet era, who cared?  But with the Internet, everyone can
>be creative.  Copyright now regulates all 200+ million citizens, not
>the original 127 publishers.  It is not a simple question of stealing,
>but how far control will be extended.  Some say "it is too easy to
>copy and steal on the Internet will kill entertainment industry".  But
>they said that about the VCR.  I won't deny stealing goes on.  But the
>future is technologies to control distribution of IP to give owners
>more control without bloated copyright laws.  Rights in real world to
>use books work fine (like libraries) --->  these practices are easily
>extended into Internet world.
>
>The question is will copyright holders get complete control over all
>aspects of their works?  Current cases such as DVD / Napster is about
>control of use.  But constitution is about fair return to authors.
>Walt Disney classics (such as Snow White) were already in the public
>domain.  Why stop future entertainment innovation by allowing complete
>control of content of these existing works?  Technology will provide
>in the next few years plenty on control of cyberspace IP access.  We
>don't need more controls.
>
>
>VALENTI:
>What are you proposing for copyright?
>
>
>LESSIG:
>1) A reasonable term - say 14 years
>
>2) No retroactive extensions of copyright
>
>3) People should be able to make fair use of copyright materials - get
>    rid of anti-copyright protection schemes
>
>4) Stronger conception of importance of public domain materials for
>    creating new works
>
>
>VALENTI:
>Some history.  Kant wrote: "Injustice of pirating books.  It is moral
>right of author to profit from his works."  French revolutionaries
>abolished copyright.  Within a year, 20% of French publishing houses
>went bankrupt.
>
>For the movie business in Internet era, a threat on opening nites is
>someone copying the new movie and send it out over the Internet.
>Average movie costs $52 million.  2/10 ever profit from theatre sales.
>
>American copyright term extended to be compatible with rest of the
>world's copyright schemes.  MPAA working with Europeans to improve
>copyright.
>
>Esther Dyson doesn't think we need copyright for anyone, but she sells
>high priced, printed (not easily stolen electronic), non-Internet
>newsletter with a copyright symbol on each issue.  Without protection,
>who will make these investments?  If you can't protect what you own,
>you won't own anything.
>
>
>LESSIG:
>But our founding fathers rejected European views of copyrights, so
>compatibility not a priori necessary.  We are more oriented towards a
>fair return copyright system.  But incentive?  You cannot incent a
>dead person.  We need an intellectual commons.
>
>Question: Were our founding fathers pirates or not for providing the
>copyright protections we have today?
>
>
>VALENTI:
>Well, today's Congress passed these changes.  Don't like it, introduce
>your own bill in Congress.
>
>
>LESSIG:
>But incentives for dead people (i.e. extension of existing copyright terms).
>Are such retrospective extensions compatible with the founding father's
>intent?
>
>
>VALENTI:
>Yes.  An issue over which intelligent men can differ.
>
>
>LESSIG:
>None that I have met. (Ha Ha)
>
>What's your reason?  I know in Washington DC, they only give dollars.
>Not here in Cambridge.
>
>
>VALENTI:
>Intellectual property is books, movies, software, etc.  America is
>supreme in this world - people like our stuff.  IP is America's
>greatest export - greater than agriculture and automobiles, etc.
>
>
>LESSIG:
>I agree we need a sufficient incentive to produce.
>
>
>VALENTI:
>Do you believe that it is OK for people to download music and movies?
>
>
>LESSIG:
>Yes, in some cases.
>
>
>VALENTI:
>Why is it OK in these cases?  Should students be able to download using
>Napster?
>
>
>LESSIG:
>Private sharing of content - sure that's OK.  Even if some people are
>violating the law, it shouldn't allow the control of technologies [like
>that in the DeCSS case].  The question is their potential for substantial
>non-infringing use of things like Napster.  Instead of controlling the
>use of Napster, recording industry wants to shut down something it can't
>control.  This is all about maintaining control of distribution.
>
>
>VALENTI:
>Boies for Napster uses the same arguments.  Look at Sony-Betamax -
>because VCR had substantial non-infringing use, for example if you
>timeshift (tape now and playback later).  But court in Sony-Betamax
>did not rule on shifting to ten million people.  So watch how you cite
>Sony-Betamax.  Napster is not timeshifting - but sharing with anonymous
>millions.
>
>
>LESSIG:
>Consider RecordTV's "online VCR" - is this analogous to the VCR case?
>
>
>VALENTI:
>If legitimate, yes.
>
>
>LESSIG:
>MyMP3.com case.  You upload your CD's so you can listen to them anywhere
>you have Internet access - call it spaceshifting.  Yet this was shut
>down.  But if you agree with Sony-Betamax, can you support spaceshifting?
>
>
>VALENTI:
>I agree with whatever the courts rule, who shut down MyMP3.  In all
>cases, the courts have said these systems are illegitimate.  Further,
>we will be coming up with reasonable and fair alternatives for the
>98-99% of Americans who are honestly interested in such access.
>
>[Greg note:  at this point, questions were taken from the audience.
>The first audience member was Emmanuel Goldstein, publisher of the
>hacker's 2600 magazine, and one of the defendants in the DeCSS case.[
>
>GOLDSTEIN:
>We just lost big lawsuit.  Millions were spent on the DeCSS case.  I
>lost the lawsuit, but I don't know what I learned about being a thief.
>I guess writing software is theft, and pointing to it is theft.  But
>why?  Why am I a thief for my links?
>
>
>VALENTI:
>Read Judge Kaplan's decision.  He looked at fair use, reverse
>engineering, encryption and rejected them in light of the DMCA?
>
>
>GOLDSTEIN:
>Why is it important to control encryption through DMCA?
>
>
>VALENTI:
>Laws are there to be changed - if you don't like DMCA, have it changed.
>My view is to keep the DMCA intact, to allow authors to protect their
>property.
>
>
>LESSIG:
>There is a big difference between perfect control and right to be paid.
>Nothing should be free costwise, but free to use/manipulate.  Perversion
>of language to call it theft (like in DVD/DeCSS).  No evidence people
>were pirating DVD works, just deencrypting.  Where is theft/piracy in
>so using DeCSS software?  It isn't theft, but issue is free use of
>content.
>
>In its first 150 years, American copyright law changed twice.  In my
>life, it has changed a dozen times.  Just to protect Mickey Mouse?
>
>
>VALENTI:
>"Limited" in Constitution.  Founding father's didn't put in a specific
>number of years.
>
>
>QUESTION:
>Why is music so expensive - do musicians have to be that rich?
>
>
>VALENTI:
>Yes.
>
>
>QUESTION (Erik Eldred):
>I offer books for free (even copyright books, with permission).  About
>harmonization of copyright extensions, two writers in Paris late 1800s,
>asked manager "Why aren't we being paid for playing our music".  Manager
>didn't pay, so they didn't pay for food, and were arrested.  Outrage
>led to copyright performance rights being passed.  Extension had
>exemption for music for small bars and restaurants.  Suppose it had
>exemption for movies - is that theft?
>
>
>VALENTI:
>Yes.
>
>
>ELDRED:
>Even is law says you can do it?
>
>
>VALENTI:
>I guess so.
>
>
>QUESTION:
>Can your efforts to enforce your rights have negative rights to everyone
>else?
>
>
>VALENTI:
>I don't know of any detrimental effect of defense of copyrights.
>
>
>LESSIG:
>Suppose technology takes fair use away?
>
>
>VALENTI:
>I support fair use.
>
>
>LESSIG:
>Yes, but if technology could reduce attempts by people to have fair use?
>Like preventing sampling or copying a section, would you oppose these
>technologies?
>
>
>VALENTI:
>Yes, I would oppose.  All I want is people to be paid for their efforts.
>
>
>LESSIG:
>I really misunderstood you.  You do get it.  Passed DMCA and technologies
>and in five years complete control of use.  But hearing you talk, you
>don't see this (like getting rid of fair use).  If so, we agree a lot.
>Difference is over how much control should technology allow.  But listen
>to fears of people (like the DSS/DeCSS crowd) who are worrying about
>too much control of copyright occuring.
>
>
>VALENTI:
>I believe authors have a right to protect their works.  And with the
>Internet, we can do so for a fair and reasonable price.
>
>                               ====================
>
>The next day, at a conference hosted by Cap Gemini Ernst & Young, the
>rapper Chuck D spoke at one of the sessions.  He is a hugh supporter
>of Napster, is known as the "conscience" of the rap world, and an
>adopter of ecommerce technologies.  His comments:
>
>CHUCK D:
>Today the courts are ruling on Napster's existence.  I am a big fan of
>Napster.  I am a fan of fans.  Interested in downloadable music future.
>Artist is something you do, not what you are.  I have been in the
>Internet world for six years, not as something trendy, but rather as
>a necessity, to be a bigger player in the music industry (dominated by
>five big players: BMG, Universal, Sony, Thorn/EMI and Time Warner).
>
>In 1994, I got involved with the Def Jam label, who had been around since
>the 1980s, when they got a lousy deal from the record business, and
>therefore had to offer lousy deals to artists they signed up.
>
>In 1980s, record companies came up with CD technology, and got everyone
>to rebuy existing records at 3 times the price.  Music industry also
>prided itself on controlling the hardware while owning the software.
>Industry used CDs to control what audience played and used.  Music industry
>started buying independent labels for more control.
>
>Internet's downloadable music changes everything.  No need for middleman
>record companies.  Industry can't control technologies like Napster.
>Now people can share more freely.
>
>Major record labels have price-fixed everything.  $17 for CDs?  Why so
>expensive?  Who knows.  "Great Big CD Scam", that's what it is.  In 1970s,
>music controlled by artists.  Eventually in the music business, these
>artists partied too much - major music companies called lawyers and
>accountants to fix the mess.  Got technologists to help clean things up.
>Used opportunity to take control of the labels, do mergers and used CDs
>to make better deals with record stores (CDs take less room) who could
>make more profits off of the higher prices.  Artist's contracts haven't
>changed though, so they are getting less profits.  Lawyers in music
>business shifty shady people - representing both sides (artists & labels).
>
>Industry making 300% to 400% on the dollar, but not the artists.  Music
>industry boomed to companies' benefit, not artists.  Started having
>disposable artists, who couldn't renegotiate once they tasted success.
>Music industry squeezed out all other entrepreneurs.
>
>We have had majors and indies.  Internet creates a new level for promotion
>and distribution, "inties".  Three corporations control most radio
>stations, institutionalizing once illegal payola.
>
>In 1994, I started my own mini-industry.  But I needed outlets, which the
>Internet provides.  A parallel and parasitic channel for content
>distribution.  Much like trains challenged by airplanes.  So I got
>involved with the Internet as a necessity.  I first was sued, then
>called a parasite, not called a competitor.
>
>I have a company, rapstation.com, for rap music and hip-hop.  Billion
>dollar music sub-genre.  We can't rely on radio and television to get
>out rap/hip-hop - but can rely on the Internet, not only for US
>distribution, but to parts of the world that record industry doesn't
>get to (or want to get to) - including West Virginia (ha ha).  I look
>at rapstation.com as the ESPN of rap/hip-hop.
>
>By 2002, there will be millions of artists and millions of labels on the
>Internet providing contact to majors and independents.  We won't need
>expensive recording studios, with the availability of inexpensive home
>recording equipment.
>
>Copyright & control & infringement:  Rules of last century will have to
>remain there.  Value of content comes down as more artists in marketplace.
>Artists will have to get used to no more limo rides.  For the first time,
>the public has control, allowing new artists to come in more easily.
>People have the flexibility to choose how to consume.
>
>It is false for major labels to sell downloads for $17.  They are not
>adapting.  The major labels are starting to list like the sinking Titanic.
>They need help, so they are begging the government through these court
>actions for help.  I can't trust government to decide fairly about
>content distribution and copyright laws.
>
>A rally cry can be "We bought vinal, we had to buy CDs, but now we are
>Napstering".  Enough having to buy the same music in each new format.
>I don't mind paying for download, but not $17.  Little of these prices
>is benefitting the artists.
>
>I am a business, boostrapping, and want to become bigger.  But not at the
>price of unfair artist's contracts like the big labels.
>
>QUESTION:
>Some artists look at the Internet as a threat re Napster.  What is their
>business model to be?
>
>ANSWER:
>You need a team.  Napster and Gnutella and the others are fantastic
>exposure areas to let you get into the game, to be heard.  You need to
>keep writing songs, make a catalog.  Be realistic with your prices -
>you might have to charge $1 for your first albums, not $17.  This price
>setting can challenge industry.  In 1999, I sold an online album for
>$5 - $9.  Caused war when stores wanted to charge $17.  I threw a wrench
>into their pricing systems.  They fear dismediation of their middle tier.
>
>QUESTION:
>The future could see venture capital like funding of music "startups".
>
>ANSWER:
>I am here today to find out.  But they will have to make many more smaller
>deals - not the big deals of the old major labels.
>
>QUESTION:
>Why hurt your efforts by relying on slightly illegal things like Napster?
>
>ANSWER:
>Let people determine reality, and let the laws catch up.  There is some
>wrong in everything.