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« Because Suing Your Customers is SO Effective | Main | The Women of IP Law & Policy: More than a Footnote »

April 15, 2005

When Are You Going to Sue the President?

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That's what Siva Vaidhyanathan promised he'd ask RIAA President Cary Sherman at "The Download Debate Strikes Back," a Cornell University debate that due to sheer enthusiasm clocked in at nearly 3 1/2 hours. Did our fearless leader follow through? Find out by watching the freshly posted video here.

Update: I'm now watching; as one audience member says, it's "deeply entertaining" -- in large part because of the sheer magnitude of disingenuousness on display. The audience often giggles and sometimes openly laughs in response to the assertions being made by the industry representatives. Alec French, whose expression throughout is a disturbing, dead-eyed near-sneer, argues with a straight face that DRM benefits consumers because it gives them more choice.

Does Siva indeed address the issue of the potentially infringing music files allegedly transferred onto the First iPod? Yep. Mr. Sherman's answer: "We're only suing uploaders, not downloaders."

Comments (18) + TrackBacks (0) | Category: Events


1. Derek Slater on April 15, 2005 8:20 PM writes...

At around 2:22:30, he pops the question. Cary Sherman cleverly responds, "We're only suing uploaders, not downloaders."

Among the funnier moments on this amazing panel.

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2. Alexander Wehr on April 15, 2005 8:29 PM writes...


I'd expect better from people who are concerned with IP closing off the internet.

mpeg plays on everything, but it's in real media, whose developers sued open source engineers for merely finding their own way to play it back. (thus why mplayer and VLC don't play real)

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3. Kyle Hasselbacher on April 15, 2005 9:24 PM writes...

Where's the torrent of the video in a more open format?

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4. Shannon Lewis on April 15, 2005 10:39 PM writes...

I just finished watching and thought it was an excellent discussion and definitely entertaining. Thanks for linking it.

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5. Ross Housewright on April 16, 2005 1:37 PM writes...

Heh. I'm the 'deeply entertained' guy... Was quite the fun debate, a few of us went out with Siva & Fred afterwards and chatted with them until about 1am. Hope you all enjoyed the debate :)

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6. Donna Wentworth on April 16, 2005 2:18 PM writes...

Indeed. The format in particular impressed me -- we need more opportunities in general for direct/equal interaction with these guys, and I've rarely seen it done so well. Very revealing. Over the course of the debate, you see the industry reps gradually demonstrate more and more obvious hostility/contempt toward the audience, which is filled with their bread-and-butter customers. Fred clearly made Mr. French very agitated -- the video shows his angrily impatient, tapping fingers as he waits to read carefully prepared talking points directly off his laptop.

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7. Mark Levitt on April 16, 2005 2:58 PM writes...

I was disappointed that nobody asked the "file sharing is theft" and "you're stealing from artists" contingent why they don't think radio, free from the obligation to pay recording artists for the public broadcast of their work are not "stealing."

Or, why they don't think the cable industry, granted the right to license broadcast signals on reasonable and non-discriminatory terms are OK, but Fred's proposal is not.

Or, for that matter, why they are so against government intervention in compulsery licensing, but have no problem with the government granting them a monopoly right.

Finally, I wonder why there were 4 panalist who were basically "pro the status quo" and only two on the "right" side of the debate? I think Lawrence Lessige should have substituted for Mr. French. That would have made the panel 3 to 3 and eliminated the least articulate panalist as well.

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8. Ross Housewright on April 16, 2005 4:48 PM writes...

Yes, some of the industry types definitely degenerated over the course of the debate. The Napster exec in particular started out relatively balanced - or at least somewhat looking for a real solution, not just sticking to one POV. By the end, he'd started sucking up to the content folks, and lost a lot of credibility in my eyes. He had the opportunity to win people over - basically, by saying 'look we want to provide a *better* solution, we're working on it' - but he let that go by the end. Oh well... Sherman was by far the most convincing of the content folks - not because his content was any different than the others, but just because he managed to at least sound sincere and be relatively friendly with the other panelists and the audience. Attaway, on the other hand, just insulted everyone in sight, and managed to offend quite a few people I knew in the audience. Quite interesting - the personalities made much more of an impact on me than did the messages, which didn't differ much from what you might expect. Fun time, all in all :)

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9. Erick Burtness on April 16, 2005 10:08 PM writes...

Anyone have a torrent of this? My connection isn't quite fast enough to stream it...

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10. CDC on April 17, 2005 7:47 AM writes...

Erick, im using NetTransport to rip it on the disk, you can do the same :)

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11. Alexander Wehr on April 17, 2005 10:14 PM writes...

i'd really like a torrent of this... i keep entertaining stuff like this for my freind to make political mashups from.

he's really quite talented.

Sadly, i no means of recording it on mac.

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12. J.B. Nicholson-Owens on April 17, 2005 11:24 PM writes...

Alexander Wehr: I sympathize with your view because I come across this a *lot*. You'd be surprised how many people on this side of the debate don't consider what they're endorsing by using proprietary and/or patent-encumbered codecs. They don't think about it from the perspective of the end-user or media consumer: every file is a request to get software to play that file. Most QuickTime and AVI codecs, a lot of audio codecs, virtually every video codec are non-free.

Lawrence Lessig recently gave a talk at the Library of Congress as part of a series of talks about the "Digital Future". The only recording of that talk I'm aware of is C-SPAN's; the electronic version of that talk online is available under a restrictive license and is shoddy and encoded in a proprietary format. This sticks out to anyone who watches it because in part of the talk Lessig makes a joke involving a line like "Grandma, if you wanted to give me a *really* great gift, you'd give me a GNU/Linux computer.". I wrote a very patiently-worded and kind letter to the LoC asking them if they were going to release copies of any of their talks in formats more people can play, and they haven't said or done anything on this.

In the free software community, "eating one's own dog food" (or using what one endorses, such as one's own editing program) is important because it shows that you're willing to walk the talk. After all, if you can't be bothered to honor your own principles, why should anyone else?

Which brings me to the concept of licensing the work to allow sharing. Usually a visit to helps but even then, it doesn't always become clear what limitations exist with copyright by default (the default is "no sharing, no derivative works, no public performance" for the most part). Here, I have to give of the hat to RMS who does not cooperate with broadcasters who make the work available only in formats one needs non-free software to play. The recent MIT radio show he appeared on is available online in Ogg Vorbis. His talks and those of his FSF colleagues are available online in Ogg Vorbis. Ogg Vorbis isn't the only way to make the talks available, but it is a free and open codec which works and works well.

Recommendation to all: Upload a high-quality digital version to Whenever possible, use a codec that users on free software systems can play: focuses on these codecs--Vorbis, FLAC, Speex (for voice), and Theora (for video). Theora is being developed now (but is stable enough to work with) and Dirac is coming from the BBC. Then let make derivatives as well as handle the heavy lifting for getting copies to clients.

If you want to go an extra step, consider encoding a derivative in Ogg Theora+Ogg Vorbis and uploading that; upload the extracted audio track in uncompressed WAV or compressed with FLAC and let make audio derivatives, or make them yourself and upload an Ogg Vorbis and the FLAC to for hosting. hosts legally shared for free and they let you link directly to their files from your website/Usenet post/mailing list post/etc. so there's no problem using them as a repository. also makes it easy to see what license applies and they make it really easy if you pick a CC license. Please consider using their services.

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13. Your Friendly Neighbourhood Transcoder on April 18, 2005 2:27 AM writes...

Hot off the presses... transcoded using ffmpeg and lame into non-toxic media formats; packaged with matroska. Enjoy the debate.

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14. TomCS on April 18, 2005 9:40 PM writes...

Yes, watching the stream was amusing. Yes, the "cartel" representatives and the ex-Congressional Committee staffer came under predictable pressure from the student audience, played cleverly by the EFF participants. But it wasn't funny or illuminating, except for the real life plight of Nashville songwriters, though I suspect that drops below the sensitivity threshold out West, and needlepoint designers.

But this thread is too geeky to be real. Let's look at some substance, rather than soundbites (sorry, but that is what this thread started with), and download technologies. Competing soundbites is a bit like competitive stand-up. This site deserves better.

So what, in substance, not soundbites, did the EFF tag-team participants bring to the party? Siva, not much. Fred, a universal user licensing proposal. Well, maybe not universal, since US law only reaches so far. But (correct me if I misheard the debate) Fred said the answer to squaring the circle of technology against creative producer rights was to make every (US) potential downloader pay (say) $5 a month to the rights agencies. So how do you collect this? Does it reach every terminal in a company or a university?

i'm a Brit. So I know how this works, it's how we finance the BBC. About UKP 110 a year, enforceable through the courts, if you have a TV in your house. (Hey, let's wrap it up with a precept for NPB broadcasters.)

But is this the best available EFF answer to finding a balance between creative content generators and cheapo downloaders? Sorry, it doesn't stack up. How do you levy a monthly payment for every terminal with a downloading/burning capacity? The only parallel looks like the Canadian media tax, with every PC or terminal treated as media, and taxed (?federally) at, say $180 per box (averaging 3 years life - I'm being generous here - for a Wintel box), and/or a further tax on broadband connections.

Donna in a posting a few weeks ago suggested that this sort of approach was under consideration in EFF. I think the question is good. But this is not a serious answer so far. Can we pursue it a bit more here? That would be a good use of the opportunity that the web offers. Sticking pins into the cartel is fun, but it's not responsible advocacy.

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15. Crosbie Fitch on April 19, 2005 6:10 AM writes...

Hey, don't forget bloggers. You have all these altruistic folk writing great articles for nothing - surely they deserve some kind of tax dividend too?

The Web is not TV. It is not incredibly expensive to broadcast content on the Web as it is on TV. We do not need the government to fund production of Web based news/education/entertainment from taxation.

If you are saying "Without the cartel mankind will be without music, and the art of music making will be lost forever", well yes, if that were true then I guess we would need to pay a tax to keep them in the lifestyle to which they've become accustomed.

However, if you scrap that ludicrous assumption, then we revert to a free market and if people want new music, they'll GLADLY pay musicians to create it. No need to force them via a tax.

I'm constantly mystified by this idea that somehow people must be forced to pay for music. Forced to pay for national security perhaps, but music?

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16. Donna Wentworth on April 20, 2005 1:57 PM writes...

TomCS and CF: This is what Fred was proposing. It should help clarify what he and the other panelists were arguing about.

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17. Crosbie Fitch on April 20, 2005 7:37 PM writes...

It's a bloody tax Donna. Wrap it up in rose scented paper, it smells just as sweet.

It needs to come further down to an individual's voluntary patronage of their favourite artists.

Why aggregate?

It MUST be voluntary.

The best value proposition is: If you want your favourite musician to make more music, then pay the poor blighter!

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18. TomCS on April 21, 2005 9:25 PM writes...


Thanks for the link. I have downloaded it and will think a bit more. But at first sight the parallel with the ?1920s broadcasters does not hold up, because in practice their licence was not voluntary. The logic here is that any capacity to download or redistribute on a P2P basis must be enforceable. That means that either the media (boxes with the necessary drives/memory), software (the P2P programmes) or the necessary communications links need to come with both a levy and a collection mechanism. I agree that deals with other developed markets will probably be simple, and getting eg Indian or Chinese respect for artistic IP rights more difficult.

In real life I suspect the only option here is to load the broadband (dial-up is not really in the game of redistribution) connection, and add the levy to the monthly telecom bill, on a per line or per terminal basis. If a corporation or a university wishes to duck it, it will need to be able to demonstrate that it has disabled access to downloading sites/software tools. Impossible to exempt purchasers from a legitimate store, I suspect. Possible politically in Canada and possibly Europe. Can EFF sell this on the Hill? Otherwise, they should support the development of tools to block inappropriate use of P2P.

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