 Good evening. I'm Charles Nessen, the faculty director of the Burton Center, and it's my pleasure to welcome you to the Valenti versus Lessig debate on the future of intellectual property. This is an issue of truly momentous importance to the university, to all of us faculty and students here, as well as to the nation at large, and it is a remarkable opportunity to have these two great figures in the field face off against each other. I'd like to introduce to you our moderator for this evening, Jonathan Zittrain. Jonathan is a graduate of Yale College of Harvard Law School and the Kennedy School. He was the executive director of the Burton Center and a co-founder of the Burton Center for a number of years before joining the Harvard Law School faculty as an assistant professor. He leads a class here in internet and society in which the issue of this debate as well as other key issues of cyber law are the subject of the class. So would you join me in welcoming Jonathan Zittrain as our moderator and host? Good evening. We have an interesting discussion planned for this evening and a few technical accompaniments that I figure we might as well try to explain up front before we actually start talking. So one technical accompaniment is this, which is what is going out to the world at large apparently slightly delayed because Charlie just left. It's live. I guess it's kind of a Howard Stern 30 second delay thing. So up here we have the discussion that we're already having had. God, this is Einsteinian in simplification. And up here you see a chat room in which people say they can't understand a thing that's going on here. And over along the left you have a number of the people that are in that chat room and along the right some helpful link. So if you're tuned in out there, if this ever reaches you, hello, we're glad to have you. And also in the back of the room seated at a table that I can't see, so I don't know if you can either, but just in front of Andrew McLaughlin and Eric Saltzman there are a number of people that are moderating the chat rooms. And they in turn, yeah, wave your hands everybody. There you that chat room moderators. So if you have wireless Ethernet here, yeah, thank you. Their goal is principally to keep people occupied in the event the webcast doesn't work, but also to shape discussions as the event unfolds. Also we've opened a number of windows because we know it's somewhat warm in real space here. Feel free to open a few others around the perimeter if they don't do the job. So we thought we would open, we'll introduce our two guests, they're going to have some sort of opening thoughts, and then as quickly as possible we'll actually move it out to the floor, both the real floor and virtual floor. There's a microphone here and we'll give a signal when we can start queuing up at that microphone and also a chance to submit remote questions from the cyberspace panel if you're out there on the web somewhere. So with that, why don't we bring out our two principals, Professor Larry Lessig and Mr. Jack Valenti. Come on down. Here are the next contestants. How to introduce such colorful and interesting characters. The moderator's punt is usually to ask them to introduce themselves. Jack, why don't you tell us about yourself? Thank you, Jonathan, for that wonderful introduction. But as brief as you can get, I might add. Mr. Lara, I've got a book and all of you here tonight. I'm not going too fast because yes, I am. I am looking out at this audience of Harvard Law School students, the best and the brightest, pick of the litter, best of breed. And I'm reminded of what Adlai Stevenson said when he spoke to the United States Chamber of Commerce, all the big moguls were their businessmen. And he began his speech with the following, which I offer to you. He said, I'm so glad today to see so many of my friends and so few of my supporters. I have been through a rather tumultuous two weeks where the movie industry and I in particular have been lacerated by a number of senators, some of them on the Senate Commerce Committee. And I thought about when I worked in the White House that whenever LBJ confronted one of these moments when he was being compared unfavorably with Caligula, that he would say, okay, boys, it's getting hot out there. We're going to all hunker down like a jackass in a hailstorm and wait for the wind to stop blowing. That's the way I'm feeling about the Senate Commerce Committee and the Congress and now I'm the Harvard Law School, where Larry Lessig is going to demolish me and shred me up pretty good. I'm just a simple country boy introduction. Oh, you've heard this speech before, okay. In this paper in the back here, I don't know what the professor said, but I took umbridge at it and in a moment of peak, I made some awkward and unwholesome remarks. I did not apply what I call the variety test in the movie business. The variety test is never write a letter or any internal private memo to anybody that you couldn't see on the front page of variety. Well, that didn't pass the variety test. I think this whole issue is very simple. And to my untreated legal mind, I'm now about to utter something that will cause a great consternation. I'm not a lawyer, though in full disclosure, I always wanted to be one, truly so. And I always wanted to go to the Harvard Law School. Somehow or another, that got mixed up because I was going to school at night and I was working during the daytime in an advertising department of a company and I began to rise and at a very young age, I was the number two guy in the advertising department. So I said, well, if I'm not going to go to the Harvard Law School, I'll do the third best thing. I'll go to the Harvard Business School. So that's what I did. And if I seem arrogant and unreasonable today, that's what they taught me while I was there. I think this is very simple. And sometimes we try to make things un-simple. In my readings, I remember reading the words of a f***ing monk in the 14th century. I know all of you are quite aware of William of Occam. His sayings come trippingly to your tongue, I'm sure, quickly. But he uttered something called Occam's Razor. And if any of you took philosophy at Harvard College, he comes up. In essence, what Occam was saying at Occam's Razor is never multiply, except out of absolute necessity, meaning keep the bloody things simple. This is very simple. This is about private property, intellectual property, that because of this technological leisure domain called the internet, which I think is going to be the greatest thing that ever happened to the movie business, people find it easy to steal. Now that's a harsh and unforgiving word, and it's full of serrated edges. But I quote, and I hope I'm quoting correctly, Larry, and you can check me out, Judge Kaplan, Federal Judge Kaplan in the DCSS case, had one of the last paragraphs in his decision said that in the excitement of having so readily available, this avalanche of information blurs people's minds to the fact that when you take what is not yours, and which is not freely offered to you, it is stealing. I spoke in April to the best and the brightest at Stanford University, where Professor Lessig will be enlightening their minds as he has yours. And about 200 young students, and they really were bright, and I was told that one young man was going to graduate summa cum laude, and so I addressed him, attractive young man, and I said, it's supposed to be at the top of your class. Now you know, well first let me back up. I asked how many of you at Stanford have bought a music album in the last four months? Nobody's hand went up. How many of you were on Napster and nine out of ten hands went up? So I said this young man, now you know you're stealing because you're too smart not to know that. How do you gauge this within your own moral ethic? And for a moment he was silent, and then he said, yeah I guess you might say it is stealing, but by the way everybody else in Stanford's doing it, and besides these music albums cost too much. And I left with one of the high-ranking officials of Stanford. I said, I am, I find this a most lamentable evening. I said, you know what you're doing at Stanford? You're teaching the next generation of our leaders that it's okay to take what isn't yours, you know it isn't yours, and you're using it without the owner's permission. What kind moral platform will spring this young man in his later life, if that's what we're doing? And God knows how many ten to twelve or thirteen year olds doing the same thing. Now I think Professor Lessig could lay down a whole platform, a whole rostrum of reasons why this is okay to do. But as the judge says, Judge Kaplan, just because something is on the internet does not mean that it's free. And this is what the internet is breeding in a lot of people. Now I will tell you now, by the way I don't know how long I'm supposed to speak, I figured if I go long enough, night will, dawn will come and Lessig won't have a rebuttal. I mean that'd be one way to handle it. Let me just finish up with what we're doing, because you might say, well listen, you guys are old dinosaurs out in Hollywood, greedy, and you got your swimming pools and everybody makes ten to zillion dollars a year, and what do you care? In March I decided to organize within the Motion Picture Association, which is by the way an assembly of the seven largest producers in the world of movies, television, and home video. And I might add the American movie dominates the world. We are hospitable received by every country throughout on this racked and weary planet, because people really find the kind of stories we tell on film irresistible. Having said that, now I'm organizing a new digital strategy department. Within two weeks I'm zeroing in on a young man to head up this department. I've talked with the smartest people in cyberspace all over this country. I sit on the board of two internet companies where my fellow board members are ranging age from 23 to 30, and I'm learning a whole new patois, a whole new language, and I'm learning a lot. I'm learning from these young people about this ordinary breakthrough next to Gutenberg's invention of movable type and television. This is the third greatest entry into the human society up to now. That is my frail opinion, it may not be yours. And we're going to organize out of digital strategies a system, a procedure where our member companies will be online, I hope within a year, offering movies. Under some business model each movie company will construct its own business model, offering movies in some form at other, I mean some business model, some business form at fair, reasonable, and sensible prices. So that there is, there will be an alternative to stealing, that you can bring down movies, particularly if you have broadband access. Most people today have a 56k modem, like I do, it would take you nine or 10 hours to bring down a movie. So we have this small window of opportunity before the sky crashes in on us. And I believe that when we do that we will offer the alternative because a lot of people say, well the reason why people steal is there's no other way for us on the internet to bring this down. So I'm just telling you now that plans are in the works to deal with content encryption, to deal with watermarking, to deal with digital rights management and all the processes that will allow us to negotiate with the manufacturers of devices as well as the manufacturers of computers so that our digital rights management instructions will be listened to and responded to by the television sets, the set top boxes, the computer or the recording device, whichever a person may have in their living room. So I come back to tell you, it's very simple. When you take, as the judge said, when you take down from the internet something that does not belong to you, it's not freely offered to you, Judge Kaepern says the only word for that is stealing. Now the sermon next week we'll go ahead. Professor Lessig. Well when Jonathan asked me to do this I thought this is going to be hard. Jack Valenti is an extraordinarily articulate and powerful person advocating the views which he has been advocating quite successfully since he took over the Emotion Pictures Association in 1966. And then I had a chance to meet him tonight for the first time that we ever had a chance to really talk and it turned out in addition to being articulate and powerful he's also about the sweetest guy you could ever know and so I can't help but look like a villain as I pound him right as in his description. But I've kind of made it a career to have people hate me and so Jack though I really admire and respect you I'm afraid I'm going to make you hate me here that's my job. But I want to start with this idea of it's a simple point and I want to confess that I think that lawyers have created the problem that makes this seem like a simple point because the word that titles this debate future of intellectual property builds inside it a basic confusion about what we're talking about the word property which Jack introduced by saying this is a debate about the right to steal private property. Now if you look in the Constitution of the United States you don't see the word intellectual property. In fact if you were living back then I know I wasn't and Jack neither was there then I don't believe. They didn't use the word intellectual property in fact they didn't even have the concept of intellectual property what they spoke about was government backed monopolies over the right to speak and the right to deploy certain ideas and the framers of our Constitution were extraordinarily skeptical about granting the power to Congress to create monopolies over the right to speak and the right to deploy ideas. Jefferson was a strong opponent of the idea with respect to patents thought it was too dangerous that this would create intrigue in Washington where people would simply be gathering to buy off Congress to extend their monopoly rights. Smart guy Jefferson was. And in Pennsylvania before they adopted the Constitution they said we will not adopt the Constitution until there's a First Amendment to guarantee that the power to control speech built into the copyright clause does not mean the power to control the distribution and development of culture right. Now when the framers finally got down to legislating about copyright which is I think the real area that Jack and I have some disagreement here they passed a law that said an author has the right to control an exclusive right to control the printing of maps charts and books for 14 years as an initial term that did not include the right to control the performance of that work to create a poem that tracks the work derivative works to do a translation of the work to do an abridgment of the work it didn't include any of those rights it only targeted the behavior of taking other people's writings and copying it through publishing and distributing it in a way which was stealing from a market. In 1790 there were 127 publishers in the United States and so this law was regulating 127 entities in the United States to stop them from competing with this narrow field of maps charts and books. For the first 100 years of our country it extended this right only to Americans. Our contempt for China notwithstanding we should not forget the fact that we were born as a pirate nation. Now this vision of a narrow power vested in Congress to create a limited incentive for authors to produce and afterwards for their production to fall into the public domain which is the only constitutional requirement the terms be limited and that after that term expires it falls into the public domain this limited power has expanded dramatically over the past 200 years. Now copyright extends not just to maps charts and books but to any quote writing and architecture is writing which is expressed in a tangible form. It includes this set of rights will extend for the life of the author plus 70 years so that Irving Berlin's greatest work got protected for 140 years 10 times the initial term that the framers established. It covers not just the right to control publishing and sale of the original work it controls the rights to do performances it controls the rights to do derivative works to do translations to display it not just that work but any derivative work. So if you take see a television show and you want to make a summary of it that you put on the world wide web you are violating the terms of copyright. Now until the internet who cared right because publishing and creativity was the sort of stuff that was done by large organizations which Jack very ably represents who really cared that you couldn't be a publisher when the cost of being a publisher was high but on the creation of the internet when the internet was created it's no longer the large organizations who can be part of the creative process it's everybody and this law which is originally directed 127 people now regulates all of us all of us in every single action that we do in the context of the internet is regulated by copyright law. Now the question in my mind does not a question the simple question and I'm a law professor so I can't help but making everything complex I'm sorry for that it's not the simple question of stealing or not it's the question of how far this set of monopoly rights will be allowed to extend and this has been turned into an extraordinarily hard problem because of the emergence of the technologies that Jack was describing at the end of his introduction because most of the copyright industry and most legislators look at the internet as it is today and they say to themselves this is a disaster people can easily copy they can easily steal they can send the thousand copies of the same cd to everybody they possibly know and there's no ability to control it and we've got to act now or will be the death of the industry this is a cheap shot Jack I'm sorry the last time you worried about the death of the industry of course was with the vcr which too was a technology that facilitated theft it was stealing it would be the death of the industry in fact the Boston Strangler I think you called the vcr in testimony to congress so here's the death of the industry is going to be created by this technology that facilitates stealing and I don't want to deny that there's lots of what should be appropriately called stealing going on I don't think that I think the better word for us to worry about is pirating but let's think about stealing that's fine but the future is not today or the internet as it was five years ago the future is the set of technologies that Jack described for making it possible to control the distribution of intellectual property through code through technologies that will give intellectual property holders more rights than this exploded bloated copyright law itself does for example take the law that you think associates with a book you buy a book and the ordinary assumption you have about this book is you can give it to a friend you can loan it to a friend to use you can sell it to somebody else you can take a chapter you can copy it out you can criticize you can have a book club where people read the book out loud to each other make fun of it criticize it you could have your own little fan club for this particular book you can do all of this in real space in part because the law gives you this right the first sale doctrine allows you to sell it the fair use doctrine allows many of the uses that I'm describing and just the high cost of policing how people use these works makes it impossible for copyright holders actually to exercise any control over use but the future is not that picture of the book that you have in real space the future for intellectual property is the picture of the dvd and the controls built into the dvd plus the copyright controls that jack described so the dvd or the technologies for distributing electronic content include within them a whole set of rights determined not by the law but by the seller of the property do you have a right to loan it to somebody else for them to use it no no right do you have a right to sell it no no right do you have a right to copy a part of it for your own use only if they give it to you do you have a right to criticize it well you actually might waive that right in a contract do you have a right to use it in ways that they don't want you to use it that's the issue the question for copyright in the future is whether copyright will give copyright holders the power to control the use of copyrighted material now the supreme court has steadfastly asserted that copyright was never designed here's a quote from the sony case it's never been designed to accord the copyright holder complete control over all possible uses of his work and yet through the technologies that are being developed and deployed right now and they are being litigated about in the dcss case in the cp hack case and in the napster case and in the my.mp3.com case these technologies are being deployed and litigated about in a way which will establish the right of hollywood to control how you use their material and this is the question we have to struggle with our constitutional tradition is not about giving copyright holders the power to control use it's about guaranteeing a fair return from what they've produced and assuring that it moves into the public domain into a place where people can take the property as you would describe it and use it without the permission of anyone so for example allison wonderland beauty and the beast cinderella fantasia hercules the hunchback of notardame the little mermaid panocchio pocahontas works produced by wall disney corporation taking stories that existed in the public domain never having to get the permission or authorization of anybody before they produce that new work that is the concept the framers gave us of a rich public domain that all of us now empowered by an internet that enables all of us to be producers can draw upon and develop and create through content which is not controlled by anyone organization whether governments or the west coast palace right so i'm not going to defend and i'm sorry to some of you want me to defend i can't defend quote stealing of content but if we write our laws focused on the state of technology it is as it is today if we give content providers absolute power to write their code to control use however they want and we uphold those laws today which is what is happening in the dcs s case then in five years a technology will exist and it's being deployed right now and it was invoked by jack right now that will give hollywood much more control over the use and distribution of cut of intellectual quote property in cyberspace than they ever had over the control of content in real space and that change is the change i think we have to resist thank you uh before we open it up let me just i'd like to do a tiny little rebuttal here but first i want to ask professor less than a question whenever when i worked in the white house and president gathered his aids around and we would all rise and testify after about an hour he'd say okay enough of this therefore which means what's your conclusion i'm trying to figure out Larry what are you proposing about copyright and as you might tell one of your students give it to me in a paragraph okay given a law professor's paragraph that'll be very easy actually uh i'm proposing first that we go back to a conception of a term which is reasonable i say 14 years as the first move we can compromise about how long you want that to be second we no longer permit retroactive extensions of the term of copyright sitting in the front row is eric eldred who's a lead plaintiff in a case eldred versus reno which is challenging uh what's known to some of its fans as the mickey mouse protection act case which is the copyright term extension act case which extends the term of copyright by 20 years that practice should end and third the ability of people to take and use copyrighted material consistent with the underlying copyrighted copyright law consistent with fair use has got to be guaranteed and so for example the digital millennium copyright act which has something called the anti-circumvention provision built into it which says you cannot circumvent or build tools to circumvent copyright protection schemes even if the underlying use would have been protected by fair use you just can't undo it all right that's uh uh that's built into this law that too seems to me to be on the scope of what copyright ought to be protecting and finally we should have built into the process of articulating these laws a stronger conception of the importance of the public domain in facilitating the creative process this is not about left versus right this is about understanding how the creative process works and it works by having many innovators not just a few who can draw upon dispersed resources not just the resources granted to them by permission of a licensing department um at mgm uh that they can use and build into other material that other people can use that's the model of our framers and i think we should get back to that model all right let me say briefly maybe not so briefly but larry is one of the most charming and enchanting people ever to shove a lance dipped in karari right up my backside so i at least he's charming about it but since you brought up history going back to thomas jefferson let me recite some history for you i hope my memory here is relevant goes back i'm sure that many of you read the critique of pure reason immanuel kott once wrote something no not near as famous it's called the injustice of pirating books oh man he can't did that a long time ago and which he said it is the moral right of an author to be able to profit from his works and samuel johnson once said that everybody writes for money except a blockhead i might add that in the french revolution of 1789 the revolutionaries abolish copyright because they use some of the logic of of professor leslie not all of it but some of it instead it's not fair to the people everyone should reap the benefits of whatever creative work was out there in paris within a year 20 percent of the publishing houses went bankrupt the kind of creative works fell off the gossip sheets flourished and three years later france brought back the copyright now this is part of the historical things all i'm saying let me tell you something about the movie business what is developed in the internet is the possibility of on the premiere of a picture here this opening new york or boston or wherever somebody goes in with a sophisticated camcorder takes a copy of it throws it up on the internet and one billion people within 186 000 miles per second has it and then they could bring it down on broadband hooked up to their television set with a great fidelity to sight sound in color on the premiere the average movie of a major studio today costs 52 million dollars 52 million you cannot only two pictures out of 10 ever regain their investment back from exhibition in theaters they have to go to a sequential marketplace not only here but around the world and one of the reasons professor leslie as you well may know why the copyright act was extended is to put it in rapport with the european copyright act because if we go to 14 years or 10 years very fine but this is a world arena now as as the internet points out this isn't a little insular country called the united states then all the americans creative works would go into the public domain instantly and then the europeans would use that and they would make money out of it in europe off of our creative works because their copyright period is longer and they're protected in this global society you cannot look at things through the reverse end of a telescope and i'm spending an increasing amount of my time working with people in europe on their copyright directive to make sure that they do not leap beyond us and confiscate our property over there i'm always amused though by people who want to limit domain now professor leslie's new book is coming out by random house next year basic books put out of one of his volumes and i think two years ago and uh he didn't send me a copy so i'm going to pay him the highest compliment i can pay an author i'm going to buy his book at full retail price i can't do any better than that but like immanuel cunt and like dr johnson i think professor lessege would be a touch upset if suddenly his book was stolen and the steven king uh electronic books is far more sophisticated when his book comes out it wouldn't like that esta dyson who is the great doyen of of the internet world and she is even ahead of professor lessege i mean she doesn't think anybody's copyright ought to be honored however she puts out a newsletter which she charges seven hundred and fifty dollars a year and guess what it is only delivered through the u.s mail and at the bottom it says any copy is unauthorized without permission from the author as we say in politics it all depends on whose ox is getting gored all i'm saying to you is this if you swing copyright who is going to make the vast investments in the movie business i'm not talking about music or anything else i'm talking about the arena about which i am more than slightly knowledgeable who's going to make these use investments if you can't move your picture from theaters to blockbuster to the internet to premium pay cable to pay per view then to free television and then to foreign countries if you can't do that you're out of business now that's the way of the world i didn't make these rules up now you can say well hell why do you don't spend 52 million dollars on a picture okay but if you're talented and you have the capacity to put butts in the theater seats your agent is going to command that kind of money why do you think we pay basketball players and baseball players and football players untold million not because they're charming and sweet but because they can advance the ball or they can make the points they draw people and that's why you get this money and if you're a talented lawyer damn it you ought to be able to command the highest compensation that your gifts bestow on you so i'm just saying to you let's keep it simple for every i'm a great believer in the Newtonian laws that for every action there is a reaction and if we want to look at history you can find out what happens when people begin to torment copyright and i just believe that if you cannot protect what you own you don't own anything now that's a precept that no one is going to repeal in the congress or in the courts or anyplace that's a marketplace fact so i'd be delighted to open it up at any time so i i still share a sense that the bait hasn't fully been met yet that there's still sort of ships passing in the night before we open it up i just want to give Larry an opportunity is there a single question you'd like to ask jack and give him his paragraphs length reply uh opportunity well so you're right jack there is a conception of copyright that comes from europe europeans have a much different there's an argument about how different i think much different conception about the natural rights that an author has to copyrighted works that conception eliminates the possibility of work for hire so studios couldn't own films only directors can own films um but that conception was rejected by our framers it is not our conception of copyright law our conception of copyright law from the very beginning as ratified by the framers and then upheld in a court a case called weeden was that copyright understood to be government granted monopolies is just about how much incentive we have to give so that people produce creative works now you say hollywood needs lots of incentives that's fine and if we could have let's have a useful argument about how long the term has got to be so that you can make back enough to make films but when you extend the term retrospectively for work that already exists the one thing we know about incentives is you can't incent a dead person uh no matter what we do Hawthorne will not produce any more works we can give them all the money in the world um and this is the kind of mentality that says Hawthorne should get more money because it's his property or his estate's property or it's a natural moral right that they control this forever that i think is not our tradition and our tradition is the kind of good debate that we could have about how much his incentive is needed and not just incentive for hollywood to do things but a structure of intellectual property quote unquote and an intellectual commons that allows everybody to participate in a creative process which is the tradition that produced the great culture that america has seen so you know europe is wonderful i've lived there for a year it's the last year i'll live in europe um what's the question the question is is it the is it against our tradition you're arguing or for our tradition are our framers pirates as you as you want to call everybody who takes without using because they didn't protect copyright as maximally as you were or did they have a different conception of copyright and if it's a different one can you explain their conception not in a way that makes them see like thieves but as you eloquently started this by saying you try to understand what somebody means what did the framers mean when they were so restrictive about how much protection they grant and so limited about how much monopoly power they create why did they do such a thing well i can ask the question by in conclave assembled the congress of the united states decided to extend copyright protection and and the and the overriding reasons why they did as i said earlier was to have those laws in america in rapport with the laws in europe but europe doesn't pass our laws but they do they do this is something i haven't learned yet europe controls our laws well i don't know many things professor lessig and i probably flunk every test you gave me but on this issue i'll go to the mat with you trust me they do the copyright laws in europe are now at the same level same span of time as the copyright laws in america and that's that's a fact now the only reason i'm saying this is it's because the congress passed the law and if that is the law now if you want to change the law then call up senator kennedy and and senator carrie and start it off now but the question is is extending copyright retrospectively in a way that creates no new incentives and just increases the monopoly returns of existing copyright holders consistent with our tradition consistent with a copyright clause that says the purpose is not to create monopoly rights the purpose is to promote progress and in order to promote progress congress can create exclusive rights for a quote limited times and the question is does this law of congress in your view comply with the vision the framers had or the text that they wrote or the tradition that we had for the last 140 years i will answer your question yes it does yes i think it does okay but you see when you answer a question you have to then give the reasons so answer it compactly now the question i want to ask is no no no no no i'm i'm still trying to find out where we are here because i think johnson's got a point we're going by you want to limit copyright to 14 years i think you said is that correct well i'm willing to give you this let's have a discussion of how long's needed in the in order to create incentives but i know retrospective extensions does nothing for incentives do you agree with me on that well that's an issue on which very intelligent men can differ none that i've met well you sound like some congressman i know who believe that they and they alone speak to god every morning on a gold sprint card and then they're able to tell other people how to deal with the art of making motion picture i want you to explain how nice i just i'm just explaining how i embrace you manfully but i disagree with you okay but explain it give reasons not just i mean i know you know washington isn't a place where people give reasons they give dollars so this is not something that happens in washington much but we're in cambridge now and in cambridge in cambridge you've got to give you've got to give reasons for your argument that's the reason there's some toxic molecule here in the harvard law school that seems to give people this great vision that ordinary folks humble folks like me just don't have i think we can continue to debate this i just disagree with you i think what we have now is something special now let me give you some other numbers i like the deal in fact i'm more comfortable with them because they can't be rebutted intellectual intellectual intellectual property consists of computer software music books television home video and movies this is the family called intellectual property it is an arena in which the united states is supreme in the world and not because i stand on the chandelier zay with a bayonet in my hand forcing people into the gourmands theater to see an american movie art making everybody in france or belgium or italy or brazil watch american programs on television people make these choices on their own in each country now here's the fact intellectual property is america's greatest trade export bringing back to the american economy more revenues than automobiles and auto parts than aircraft than agriculture back into the american economy at a time when we are bleeding from trade deficits and if you see the last month's trade deficit it went to a ballooning figure that ought to make everybody cry and shame intellectual property has a surplus balance of trade with every country in the world with whom we do business over 170 of them surplus balance of trade that's a direct benefit to the american economy and it shows that america's creativity resident and living under the canopy of current copyright laws is doing something that's worthy of the support of this country and i i probably would not be not calling me now i'll let you rebut that one okay so jack you're not calling me um anti-american here are you i mean i love american films like the next guy and again i'm agreeing with you we ought to have a structure so that there's a sufficient incentive for people to produce nobody's arguing about that but you wouldn't argue would you that just because we make a lot of money in foreign trade the constitution should be violated you wouldn't be making that argument right no but i i will answer but i said no that my question to you is more to the point do you believe that it's perfectly okay for people on the internet today to bring down music and movies later free of charge do you believe that's okay in some cases sure and so do you well tell me no i don't believe it's okay in some cases see that's right see the whole issue if i offer it to you and i make it available to you then it's okay but i'm asking you again tell me why it's okay if i may use that non-legal word for people for people to bring down the same music off of napster let's just take that direct specific case do you believe it's okay for people at at harvard or stanford to use the university internet network to be able to bring this down from from napster today do you think it's okay if this is understood the way the american home audio act describes private sharing of content then by law it's okay and we have to wait to the ninth circuit gets to answer this question to see whether in fact existing law defines it is okay or not but whether some people even if that's not the interpretation some people are violating the law or not should that fact should not determine whether a certain technology is permitted in the marketplace now i know you are very involved in the last time the supreme court addressed this question in the vcr case 1983 yes and the claim in the vcr case was this is a technology designed to quote steel why else would you have a record button that made it possible to record stuff that came across the television set there you were taking stuff down not paying anybody or getting any permission for it and you were stealing content that was the argument of the copyright interests and the supreme court said the question is not whether some people use this to steal or not the question is is there a potential for a substantial non-infringing use using this technology now whether you think lots of people are stealing on napster or not i don't think anybody believes that there isn't the potential for a substantial non-infringing use on napster in particular if copyright interests were more interested in facilitating the protection of their content in napster but the real game that's going on now rather than facilitating copyright control within napster's technology by tagging the material and then under existing law it would be illegal for napster to facilitate the trading of tagged copyright and material rather than they do doing that the recording industry is more interested in shutting down a channel of distribution they can't control that's what this debate's about because when napster shut down and when a scour is shut down then magically we'll see lots of technologies out there for distributing content using the very same technology but they happen to be all licensed and controlled by the top five record industry that happens now to distribute 90 percent of records in the world this is about re-establishing control over distribution and i don't know what interest the law has in making sure that this five-man oligopoly continue to control distribution of music what is the legitimate interest consistent with the constitution well let me i'm now going to commit a crime i'm going to practice law without a license david boys who's the lawyer for napsters using your same arguments and we'll see if the ninth circuit buys it and that is this i know exactly what supreme court said and i might add that justice blackman uh marshal pal and renquist were in the four descending it was a five to four decision what's sony you don't question that do you no but three of them are gone now well we all leave sometime sooner or later i'm reminded of what dr kissinger once said if i die this is what sony beta max and i all of you should go and look at this sony beta max says that because the bcr had substantial non-infringing uses that if you time shifted time shifted was what they used in in their decision that was written by justice blackman uh uh justice steven john paul stevens in which he said the vcr you could time shift and that is you could tape a program at seven o'clock when you weren't home and then watch it at ten what the court did not rule on was whether or not you could take that vcr program and ship it to ten million people all over the country it did not say that anything other than over the air television it was okay to time shift there's a lot of omissions in that lawsuit and those who bring up sony beta max i urge you to read that case again in detail and with vivid recall of everything that it said that's number one number two in nap still let me let me finish professor if i may and then i will i will hug you warmly and affectionately and that is this napster is totally different you're not time shifting you're sharing your files with two million of your best friends anonymous people you don't know who the hell they are i mean there's a thing called boggling the mind and that really does it and you don't have to be a harvard law school graduate to understand those practical aspects okay let's take a case directly on point then record tv record tv is a technology where you can sign up to their website of course it's been shut down now by the threat of a ten million dollar lawsuit but before the lawsuit you could go up to their website and you could pick a television show that you wanted to be quote taped it was a virtual vcr and after you pick that and they taped it then you later on could watch that content now this is directly analogous i think you'd say to the vcr case isn't it well i'm only going by what judge patel said in napster and uh it was a pretty decisive piece of prose i thought not unambiguous at all plain precise and clean and she made it very clear that what napster people were doing was illegal record tv not big what the case of record tv you've you've been involved in the lawsuit for record tv right not to my knowledge at least your press agents uh report you to be involved in the lawsuit those damn lawyers are spending money again without me knowing about it well record tv is a case where the industry has bought a lawsuit for this technology picking a show to be taped and then you stream it across the internet to your computer now let's just assume i'm my description of the facts are correct i'm are we going to hug now is that what you're coming over i mean i'm doing what rick lageo did i'm invading the space can i get you to sign the non-soft money uh agreement record tv is directly analogous do you think people should be allowed to develop these innovated technologies that permit people to get access to content that they legitimately would have access to without getting the permission of the record or hollywood the operative word in which you just said is legitimately the answer is yes anybody can bring down anything that is legitimate to do so so i agree with you okay so then the reports of your opposition to record tv are premature i'm you know you're you're asking me about something that i'm i'm barren of knowledge i just don't know what you're talking about okay so let's take another case that you are familiar with at my dot mp3.com okay what did my dot mp3.com do you had a cd that you possessed you put it into your computer the computer then identified the cd to mp3.com mp3.com then gave you access to that music wherever you were so if you're your office you could listen to the music if you're at home you could listen to the music if you got streaming technology or wireless technology you could listen to it in your car so these are three these are many ways to get access to music that you presumptively own it's a way of space shifting access to music as opposed to time shifting access to music it was a creative innovative way to make people use the internet so that they could get access to their music now this practice was shut down by another district court in california a punitive 110 million dollar judgment was issued against them for willful violation but if you agree with the vcr decision do you disagree do you agree with the decision shutting down time shift space shifting as well as time shifting i agree with the court and they why well i do i mean i i'm a great believer in the judicial system of the united states and you know it's uh like in the congress they say when you don't have the votes talk when you have the votes vote so i'm saying to you that the courts are voting in every case so far the courts have said that all the things that larry has cited here are illegitimate now if the courts overturn that then i'm a still a believer in the judicial system of the united states but right now the copyright laws are intact they're they're knitted and braced against a lot of people who want to change them so i'm saying let the courts decide this meanwhile as i told you earlier we're not waiting for all these court decisions we're going online and we're going to present an alternative to steely and i hope at prices and under a methodology business model that most americans will find reasonable and fair now i said we're not going to defeat the hackers the hackers will always be able to break down whatever molecular design you have and all the algorithms they'll be able to do that but 99 percent of the american people are not hackers and 98 percent of the american people if you offer them a reasonable alternative to give them something that they clamor for whether it's music or books or movies and you offer it to them fairly and sensibly they'll take it it is that piece of the human condition that i'm banking the future on because i believe 98 to 99 percent of people in this country are honest and they care about their integrity and therefore we're going to offer them alternatives that i pray they will find beneficial to their own needs so why don't we open this up a little bit i'm going to place this microphone on that stand and i encourage people to line up behind it for brief questions for brief questions and the time we have left will take one at a time to start with i don't think there's any priority if you're a defendant in an mpa sponsored suit you just have to wait in line like everybody else and we'll also alternate in the line with questions that are coming through the question form that the online viewers now why do i believe that as a result of these questions i will not be universally beloved by anybody well as each of you seems to have a thing about being hated i assure you you're both very nice people so let's uh let's see what we can do hi um my name is manual goldstein from 2600 magazine i don't know if you know me mr valente but uh a defendant right all right but you were you guys just want a big lawsuit against us uh congratulations um it's it's causing electronic frontier foundation about a million dollars so far i know it's cost you guys about four million dollars uh i know you tried to make us pay for that but the judge didn't want to do that my my question though um basically it revolves around conceptions because while i lost the lawsuit i don't think i've yet learned the lesson because i thought i knew what a thief was i thought a thief was someone who stole something with intent to steal something um but i learned that it's not necessarily that way that a thief is actually somebody who writes software that can be used by somebody who wants to steal something and then i learned that not only is the person who writes the software a thief but somebody who calls attention to the software is also considered a thief uh because at 2600 that's what we did we we had a website that pointed to the program or the source code that was used by someone to play a dvd on a linux system which was interpreted by the mpaa as thievery um i'm just a little confused as to how far how many how many different levels this can go to with the help of the digital millennium copyright act which i'd also like to know why i shouldn't be scared to death of this thing it seems that anytime somebody tries to figure out technology they can be guilty of thievery if it's ruled that they shouldn't try to figure that out i'd also like to know i saw at the trial i saw people outside the courtroom literally across the street selling videotapes of movies that had just come out that day and we told mpaa people this the lawyers on their side we told the media this and nobody cared and those people are still there to this day and somehow i'm a thief so just clear up my confusion please thank you what was the question the question is how is somebody who who publishes information on a website about a computer program that shows how encryption has been hacked is a thief well i suggest you read judge kaplan's oh i'm very familiar with it well if you were here i'd be asking him the same question but again since most of it was worse the word what you guys said i'd like to know the answer you know it's american judicial system at work he looked at reverse engineering he looked at security he looked at fair use he threw them all out the window said they had no bearing they violated the dmca you cannot circumvent encryption that's the law of the land now if you want to change the law you have to go to congress to do it unable i don't have a vote in congress well the dmca did change the law and that's the thing congress voted on this with an unwritten vote a voice vote unanimous everybody agrees but the law you cannot circumvent encryption anymore and i just like to know why it's so important to control how people use technology why is it important that i not be able to skip over commercials on a dvd why is it important that in the future with hd tv that the same kind of controls be in place for recording programs and for playing back programs i don't think a lot of people are aware of this yet but that is what is going to happen and the dmca is what's going to make it possible just like to know what the intent behind this was i mean wasn't it good enough already before for you guys i mean well i'm glad you i skip over commercials all the time well you won't be able to if you try you'll be breaking the law that's my little controller i'm saying again to you no no laws are lapidary they're there to be changed or revised if the circumstances benefit the majority of the american people so i'm saying if you have a quarrel with the dmca so jack jack i'm sorry behind you let me just ask to focus it a little bit um do you think it's been unfocused of course i do too a personal view on the issue do you have a view on the issue if congress were to ask you they're going to say jack you tell us what do you think and we'll follow your lead what advice would you render the congress to keep the dmca in place and if they and if they said why what would you say i would say it's in the long term interests of the american people for copyright and the rights of authors creative people to make sure that their property is protected from the unauthorized use of that property that's my simple answer well i am an author and i do create things and in a fact i just made a film and i've never had the desire to tell people where when how they can view my work and what will happen to them if they try to do something else if you say i want my work to be offered to the world without compensation may the lord bless you may i'll appraise you go on but jack wait wait there's a big difference between saying you should have the right to exercise perfect control over the use of the content and saying you should be right you should have a right to be paid i don't i personally don't think that people ought to be able to get things for free in the sense of zero cost not in in richard stallman's view not in the sense of free beer that's not what's important to me what's important to me is free in the sense of free speech in stallman's words free in the sense of being able to be used in any way that the person wants to use it now i think the real thrust of the question the excellent point of the question is this perversion of the language that's going on in this debate to call this theft i don't think you sort of brought the biggest part of it out what happened in the dvd case dvds are technology are technologies that have a bit of code called css that encrypts the dvd movie so that only on authorized players can you play it dcss is a bit of code that that cracks that encryption system to what end it's not as if the objective or any evidence was offered that the people who are prosecuted in this case were taking dvd movies and quote pirating them they weren't distributing anything illegally what it did was make it possible for someone with a linux computer to take the disk and put it in their computer and play it a disk which they presumably bought so where's the theft in that story where's the pirating in that story what's happened is washington speak has transformed people's ability to use copyrighted material in ways different from hollywood's desire into what's so simple for everybody to understand the american way of protecting private property but it isn't that that's the point it's not theft it's about free use of the of the content and what's the what's the complaint that you have that somebody plays this on a linux machine well when you say hollywood let's understand what we're talking about we're talking about 95 000 members the screen actors gale 10 000 members of the writers gale 9 000 members of the directors gale we're talking about all the people who work in the movie industry there are many creative people and they believe and i think not without some reason that their property in which they make a living offer ought not be devoured or used in a way that they don't approve of it's their property it's not property jack it's just not property it's not property in in any sense of what we ordinarily mean and no justification exists for protecting it as you protect your well now if you don't have a fair use right to use my car that's right you have no right to get into my car and drive it around the block and say oh i'm just taking advantage of your car without my permission that's what we talk about when we talk about property intellectual quote property is not that the very same constitution that great gives congress the power to set up the restricts congress by saying if congress takes property it must pay for the taking of the property that's in the constitution at the moment i know about it the very same constitution says congress cannot create what you call intellectual property unless it guarantees that after a limited time it gets turned over to the public the very same constitution says you must turn it over to the public before limited time now in the first in the first 100 years of congress's life they changed the term of copyright once and in the second 50 years in the next 50 years they changed it once again in my lifetime they've changed the term of copyright 11 times under the limited times clause every time mickey maus is about to fall into the public domain magically there's some excuse the europeans made us do it for extending the term of copyright now how is that consistent with this requirement when i may answer you i will give you two answers answer number one is the word limited now what do you suppose that the founding fathers put on there if they wanted to say 14 years they would have said it correct they said limited now we can say that depends on what the word is is but limited time could mean 90 years or it could be five years second and i think a thousand years is that a limited time i just pick a number you're doing the same thing you picked out 14 actually you the congress would let me get my other answer to you if you believe you're right and you're a distinguished professor of law and when i go to law school i would like to have you teach me why is it that every court that has confronted this issue takes issue with you only one has and we're appealing their decision on well i think there's several courts listen if some court at the nice circuit overturns napster so be it then we always have to figure out something else but right now every court that has examined this issue from all of its aspects has taken issue with in the in the introduction of the copyright term extension act the sunny bono copyright term extension act uh mary bono congressman bono said that you would propose the copyright term of forever minus a day is that limited times limited means a specific amount of time and that's what the congress has done larry is that a limited time though a bigger part is forever minus a day a limited time i said earlier that i didn't think any law is lapidary the constitution has been what almost 27 times has been amended and that's what this free and loving land does from time we haven't amended this part of the constitution that no i want to know is that a limited time well i'm not i'm not clear what you're saying i want to get back to william of ockon i want you to keep me i think we should put the razors away okay then let's just ask ben to give us a question from the internet ben using your good judgment in your three screens give us a question off the internet from live my lord you're trying to give us seizures uh so curtis priest says if music is so central to culture which i believe it is why does it need to be so expensive after a certain level of compensation aren't artists and producers compensated enough do they all need to live million dollar lifestyles the answer is yes we all need to live million dollar lifestyle and i guess since it's up here why don't we just batch it with the second one and then we'll go back to the mic uh kevin bankston says professor lessig fair use has traditionally been treated by the courts is merely a first amendment derived defense against copyright infringement actions rather than this affirmative first amendment right as privately deployed rights management hardware and software and restrictive licenses supersede copyright laws as the primary way of protecting content and copyright infringement actions become increasingly irrelevant so will this defense will that be the end of fair use or can you make some argument that it's a constitutional right rather than merely a defense to an infringement suit i believe in something called the cohen theorem which is you have a first amendment right to hack any system to guarantee access to protect fair use which means yes i do believe that should be able to be used as an affirmative defense to guarantee a continued balance of protection and copyright so these technologies you are talking about which will reduce the scope of public access and public use that copyright is traditionally created should be able to be resisted by people and that resistance should be upheld by courts that would attempt to prosecute them for a copyright infringement many thoughts on that i disagree i'm shocked uh eric you're up my name is eric eldred i publish online books for free jack you seem to be computer expert now you can access my site at eldridgepress.org and read all these books for free and i'm offering them and authorizing you to be able to do that the books are generally in the public domain but many of them are copyrighted because i secured the right to do that and i also have permission from copyright owners in cases where where perhaps the books have been out of print and this is the only way for them to be accessible but i don't want to talk about the case because larry lessig is going to be arguing very eloquently in the appeals court for that this week i do want to ask you something about the harmonization that you say was the purpose for the copyright term extension act right harmonization of copyright law in the united states without right right well in the 18th century i mean the 19th century i'm not too sure exactly when um two songwriters sat down at a cafe on the chan elize i believe and uh they heard one of their songs being played by the orchestra and so they called the manager over and uh ask him uh if if there was some reason why they were not paying for this because they if they were published in a sheet music then they would have to pay for it but if it were simply played by the orchestra there was no law that allowed the um authors of the song to be reimbursed right so then the manager refused to pay them for it because he said it wasn't required by the law and so they refused to pay for their meal and uh they were sent to jail and people were so outraged that the french law then was changed so that there would be royalties paid for public performances of music you agree with that is that stealing when when that's actually performed in a in a public place music that somebody's written well you're talking about ash cap and bmi now no no i'm saying charlie took you to a nice restaurant this evening right yes or no all right yes or no i okay did you like the meal i don't know enough about the contracts at bmi no no it's not it's not that it's the law okay in in the united states when the copyright term extension act was passed it had a provision specifically allowing uh the owners of bars and restaurants not to have to pay royalties for the performance of music is that correct you remember that that was one of the provisions in the law without it it would never have been passed it was bargaining between the two economic interests is that correct i remember there was a little right now do you think that's stealing okay if you're if you're in a night hey let's get on here kainbridge at my own trial here you're telling me what do you think i want my lawyer to stand up and say i object no no no i mean let's pretend let's pretend that you have some artistic talent and that you're like sonny bono and then you could write a song and the song is being you know recorded and playing over the thing i'm serious the answer is you're talking about music and that's not my turf you want to talk about movies i'll be glad to do it with you but okay supposedly instead of movies the law had exempted i mean instead of music it had exempted movies from bars and restaurants from paying for movies would you think that that would be i wouldn't think anybody that tried to see a movie without paying for it or without having the the permission of the owner is obviously doing something that's naughty right even though the copyright term extension act it's in the public domain you mean no if the law says you can do it is it stealing if the law says you can do it i'm not going to break the law right well i you know i think next year according to the new york times today you're going to be confronted with a bunch of artists who claim to be authors of the works and they're going to say that they need to be recompensed according to the copyright law for their works all right they're going to go on strike and then the movie studios will have to defend their economic interests against the actual authors if you remember back in the copyright clause itself the limited rights were extended to who authors and inventors right all i'm saying is if it's against the law shouldn't do it if it's the law we do do it right but see i mean beyond the law i mean principles involved okay you talked about cunt you talked about you know this this intellectual property theory of natural rights okay but this in cunt and in this natural rights theory there's no provision for a limited term it goes on forever it's a perpetual right all right is that what you're claiming well you when you talk you're using the european version of the auteur theory which is called what morale which is the moral rights which we don't have in this country well we have some of them but is that what you want no i don't want the more no because the answer well eric i mean i'm not indicted yet for god's sake so don't don't don't interrogate me like this the answer is i'm opposed to the european system of what morale or the the moral rights because i think that's not consistent with what we in america do and by the way whatever the europeans want to do that is their sovereign right to do it i have no problem with that and we've got a sovereign right in this country to deal with in a different way we call it works for hire in the in the movie business period into paragraph any uh any thought before we then do we have another online comment you want to share or should we go back to the microphone back to the microphone i'm walton mcdonough i'm one of the uh founding board members of the future music coalition of washington dc and since you like precedent and you like judge patelle uh in her ruling the napsa case that they call your attention to her ruling the year before we're in a similar case to a manual she ruled that there's actual free speech rights in in source code so different judges in the united states have differed on this issue and i believe that uh thanks to professor nessen's work the second circuit will overturn that case and this is a point i want to make i agree with you a lot i work in the entertainment industry myself and have for a long time i love the business as i'm sure you do but there's a question i have to pose and it's really more of an ethical moral and political question that is a legal question and that is this can your efforts to enforce your rights have negative consequences for everybody else i'll give you two specific examples judge kaplan in in in the annuals case said and i'm interpreting this but my take on it is that he said that this is basically in a uh an exception to the first amendment in in um in copyright infringement cases which is something that our legal history completely rejects the second thing that i think is very unfortunate and something we're going to fight uh next year at the congress we're probably going to fight with maybe fighting against you i don't know but traditionally in our country we've always had a notion of fear use whether it's for hobbit law school or if the elementary school down the street from my house and with the proliferation of sdmi the type of security devices you're going to have you're going to try to circumvent the copyright code through technology so this traditional right that we've had for entire history of americans we have for our teachers for our kids is going to be taken away so the question i pose is do you believe there can be detrimental aspects when you try to enforce your rights as a copy holder and be do you think that our traditional notes notions of fear you should be violated for the benefit of the entertainment industry i don't know of any detrimental effects that come from the protection of one's intellectual property give you an example a big boy may give you an example of course you can't well i just spoke about tree well not if we have judge kaplan's case because he's saying that there's a there's an exception to the first amendment i mean clearly it's going to be well i think a judge oliver window home said there was an exception to the first amendment you can't you know fire in a crowded theater he's not yelling but this has nothing to do with free speech that's so and by the way on the dmca all the libraries in this country and all the universities this country all signed off on the aspects of fair use within that dmca are you aware of that and i'm also we're right now the law the librarians associations want to go back to the congress and protect their rights against things like sdmi i'm i only know is the library association representing all the libraries in this country and i might add uh all the universities were deeply involved in the construction of the language in the shape and form of the legislative complexion of that bill and everything that they wanted they signed off on it with senator hatch i was there when they did it well they they have a contrary position on this because they do not believe that the entertainment industry should be able to lock it up with a technological key and prevent them from bringing music or film into the classrooms as they've been able to do since the founding of our country you can in your classroom right now show any movie you want go to blockbuster and you can get any movie in the world except the ones actually playing in theaters and by the way every library you can go in red i mean you can take out a dvd you can take out a video cassette they're there the library is anything you want just except the movies that are actually showing in the theaters but you mean the library can't wait for say one month or two months before it comes out in video a dvd farm let me let's let me say one final thing five years from now is you're building the catalog and you lock it up with technological key that may not be the case in 15 well i'm not aware that we're doing any locking but maybe you maybe we can get narrower narrow this disagreement a bit jack i mean i think the questions the thrust of the question is we've had a tradition protecting fair use and you you agree you support fair use i absolutely do let's imagine it becomes the case the technology takes away fair use rights would you oppose technology takes away fair use no i'm again i'm i am for fair use okay so would you but it is the definition of fair use larry i think that's the key here everything has to be defined particularly in law right so we could we could have that boring law game of defining it particularly right now but whatever it is if technology reduces it would you support would you oppose that technology i don't have any idea what you're talking about well if you just give me an example i'd be glad to answer it fine fair use is ordinarily understood to be the including the ability to take and copy a certain portion of a copyrighted work regardless of the author's to use in a classroom for example absolutely that's fair use and i have no problem with that okay let's say as a technology makes it impossible for you to copy it and expressly says that you're not allowed to use it except for the following use to sit as a couch potato watching it at home that's what it says but your license says no technology makes it that's not fair use to me i know that's not fair use is being able to show spartakus or are uh erin brokovich which is the brand new movie in your classroom if you want to talk about that and by the way if you want to show it in the library it'll that's fine too you have it to be able for people to take out and take home and bring back to the library that's fair use right but if the technology made it so that you could not exercise fair use you could not copy a section of it for example which is what i'm opposed to that you're opposed to that yes i am okay that's unauthorized and that's the whole key to this thing and i don't understand why the simple urgings of a simple sentence is not getting through and that is you cannot use a piece of intellectual property that you have not gotten permission to use or you haven't paid fair compensation for the use of it now what is so ambiguous about that so i want to start bringing our session to a close i thought it might be useful to review the bidding as quickly as i've been able to tally it a little bit as to where the axes of conflict have been it seems that in one piece of it there is dispute as to what constitutes sometimes legitimate use of intellectual property there's been a clear dispute for instance on napster as to whether what we all think to be the typical use for napster somebody finding an anonymous friend online and grabbing a song and keeping it playing it that somebody somewhere along the line ripped whether or not that constitutes fair use is clearly a dispute between the two of you in most instances derivative to that is a dispute over whether something like napster itself is illegal because it enables people to do this what i'm hearing from you is it you know yeah it's essentially a burglary tool that was sort of the question from the defendant the dcss case if you make a technology that can do it you say the law prohibits it and well it should because it's enabling the theft of intellectual property there you have a very different view on that as to whether the clock maker should be it all punished for uses to which the watch is put and then the third and perhaps to me at least the most interesting dispute i've detected here is on the limits of protection for what we're loosely calling intellectual property particularly as those limits are advanced by technology and that's kind of what the most recent colloquies have been about the best hypothetical i can think of to kind of get at it is if the the fellow you want to hire the next two weeks came in he said boy have i got a system to show you and it's a new internet distribution for movies by which you can show it to somebody on a given computer but there's just no way once it's on that computer to transfer it to another one and the fellow says to you in fact if you think about it libraries which can accumulate dvds and then lend them out to their patrons and presumably when somebody borrows it from the library they need not buy it from the store that's right exactly and that would be perfectly legal under copyright law he says but we can now make it so that someday dvds will be stale in old fashioned we don't need to release movies on them we'll just release them after the theater into this streaming format and with it we can see to it that the library has nothing to lend well i'd be opposed to that you'd be opposed to it of course great i think the library ought to have well listen i'm not an oracle i'm not the delphic oracle here that that's coming down from my Olympus i'm saying to you that i believe fair use is legitimate and that libraries and universities ought to have access to it under legitimate rules that's all i'm saying and under technologies that then would try to match these rules as close all i'm saying to you i'll put it another way just because technology makes stealing easy doesn't make it right now the very fact that something is up there and you've got some technical means to bring it down it's like i get a magical skeleton key that allows me to open the front door of every home in my neighborhood that's not right and the corollary is if the technology can give you a magic lock that locks out every single possible use including the library maybe that's the technology going too far as well well i'm saying to you let me go back again i've how many times have to say it i believe in fair use right which has nothing to do with technology fair use right see jack this is the most interesting thing about this debate to me is that i really misunderstood you see i've been going around saying you know all you guys had said hollywood didn't get it you're wrong hollywood gets it right because they have passed this statute the anti-circumventure provision of digital millium copyright act and they've been developing these technologies which will make it possible for them in five years to almost perfectly control distribution of content they will not only have what copyright wanted to give them the ability to make back money so that they have an incentive to produce but the power to control and i think if you listen to the questions and people who are in this industry that's what they're afraid of most a set of laws and technology that that controls use now from hearing you talk what striking is you that's not the vision you have you don't see a future where fair use is eliminated by technology you don't see a future where people can't get access to what they want to get access to accept under the terms that somebody else sets your futures in the way you see it seems to be very much like the world was in 1950 with books but now it happens to be on the internet if that's true the only difference we have is that my view is much more in a line with what was expressed here about how much power the technology gives content holders to destroy traditional values that have been important to us like fair use when you add those technologies on with a tradition that expands the term of copyright now to 140 years that adds up to a very different vision of the possibility of culture to develop freely and openly free in the sense of free speech now i hope you're right but i think you should hear in people who are actually touching this code and listening to this technology and seeing how their life is being regulated you should hear the real fear that i think you would agree with the fear that these technologies will destroy values that have been important to our tradition and that you defend values like fair use and i think even limited times although you avoided that question quite artfully and i congratulate you on that let me say it again i'm going to say it and see dick run see jane run language that is this i believe it is the right of an author to be able to protect what he has created or she has created whether it's a poem or whether it's a novel or whether it's one of your books that the random house is going to put out or a movie or whatever you have a right to protect that and the laws of this land say you have that right so long as what you have is not used in an unauthorized way then you can make it available to people i hope on the internet as i said we'll do it with prices that are reasonable and fair that most people would find beneficial but anytime you use it in an unauthorized fashion that's wrong and by the way the the bewildering smokescreen that says we are we are stopping and truncating innovation in technology it's palpable nonsense well that's a different debate but tell me what you mean by authorized but tell me what you mean by authorized if i sell you my book and it says you agree when buying this book never to criticize what i say in this book and you use the book and then you criticize it are you violating my rights as an author well if you made a contract with me and it's written down i launched less like pledge i'm never going to criticize this i'm going to do nothing but lord it and then you do the opposite i would probably i guess you teach contracts don't you but that would wouldn't you violate the contract i wouldn't see this as an enforceable contract but i'm not in the majority on this view now but i'm asking you is this fairly well i'd want it in a contract because you see that's the way i operate i need a lawyer with me uh-huh so here i'll be your lawyer for a minute jack and by the way i'd hire you by the way it's five hundred dollars an hour i think would be a reasonable price i'll give it to you for free right now all right if the agreement says by buying this book you promise to give up your rights to fair use do you think i don't i i i mean first that's kind of a a goofy kind of a question i think you mean i say in my book that nobody buys it can't criticize me no i'm crazy of course i'll buy the book and i'll kick you in the butt from 20 but now i shifted to fair use let's say you buy my book and it says you agree not to use this book in any way that is traditionally protected by fair use you wave your fair use rights well i i have no idea what you're talking about to be on well on that note i feel as if we've been here forever minus one day so uh we've been here for a limited time it is a limited beckon nessen van edelman rebecca harterman john palfrey uh claire pristel chris babbit our folks at the chat table in the back all have worked mightily to make this thing uh oops there it is there's jack valenti's proposal for term to last forever less one day perhaps the committee can look at that next i think those are the words of mary bono introducing the uh yeah sonny bono yeah the late sonny bono yes wonderful man i might add i just have one question i mean that i had nothing to do with this debate i am astonished beyond my comprehension it's so many really bright people which sit here from seven o'clock to nine o'clock already what time is still six fifteen actually that that is a limited time i i'm really amazed at that i i don't know what that signifies to be honest except maybe this is a lousy night to do anything in harvard i don't know but i'm i'm stunned by it and i'm i as a matter of fact i'm rather joyful about it though so i just say that to you or whatever the hell it means well i think while jack and larry embrace please give us an outpouring of love and gratitude for their having put this together thanks very much we usually have a reception but due to budget cuts i think we just have us so thanks