Last week, I went to Washington, D.C, for a "hoedown" meeting with the FCC
and various industry and public interest people. One interesting
result of the research for that meeting was the observation that
FM radio is really much better quality than people believe. If
received and digitized with reasonable home equipment, FM can
compare favorably with compressed music downloaded from the
Internet.
There is still a very strong mythology about how analog is bad
and digital is good. This is ridiculous. (It's probably worse
than the uncritical idea that natural things are healthy and artificial
things are unhealthy.) Many
digital recordings or transmissions are appreciably worse in every
way than many analog recordings or transmissions. The real issue
here is that, because analog and digital have different properties
in some other ways, some people feel threatened by the ability to
convert effectively between the analog and digital worlds.
But it isn't because one is good and one is bad.
This week, I went to the 9th Circuit's Pasadena venue with Wendy to hear oral
argument in MGM v. Grokster.
My colleague Fred von Lohmann, representing the publishers of the
Morpheus file-sharing software, did a simply brilliant job.
It's exciting to hear Fred talk about the
Betamax doctrine (in person or in court). He should get a television
show where he just discusses the Betamax case.
Particularly gratifying was Judge Noonan's view of the subtlety of
copyright questions. When a music industry lawyer directed a lot of
rhetoric against file-sharing networks, Noonan became impatient and
tried to bring the discussion back to the law:
Let me say what I think your problem is. You can use these harsh terms,
but you are dealing with something new, and the question is, does the
statutory monopoly that Congress has given you reach out to that
something new? And that's a very debatable question. You don't solve
it by calling it "theft". You have to show why this court should extend
a statutory monopoly to cover the new thing. That's your problem.
Address that if you would. And I have no use for this abusive language.
(Transcription adapted from Copyfight's,
based on the 9th Circuit's audio recording.)
As we walked out of the courthouse, the rain stopped and a
rainbow appeared in the sky -- the first time in my whole life
that I saw a complete rainbow from the ground. It was
beautiful. Someone even got a picture of Fred standing under it.
In describing the argument to a friend, I couldn't resist
extending my Fair Seuss poem a little:
I subsequently got to see
(in ancient halls in Pasade-
na) argument about M.G.-
M.'s case for contributory
infringement, heard before just three
of judges on the vast 9th C.:
the question, whether knowingly
providing "tools of piracy"
(they call them that, and sneeringly,
but I think it's just "P2P")
gives rise to liability,
absent a capability
to know whether each MP3
infringes on someone's copy-
right -- or if we are truly free
to use the freedoms of Sony.
The cause was argued brilliantly
by Fred, a senior attorney,
who, before all the gallery,
set forth the many policy
reasons why the whole history
of that case and of law decree
a judgment for the appellee.
To which I might add, with regard to the rainbow: "(It seemed the
powers in heav'n agree.)"
On the same trip to Southern California, I got to visit a
conference put on the Intellectual Property Section of the
California Bar Association. It was a CLE conference, but
it doesn't seem that I'm eligible to collect any CLE credit.
(Nonetheless, my legal education continued.)
One particularly exciting bit was a panel featuring Emery
Simon, Eben Moglen, and Kevin McBride, the latter a lawyer
for the SCO Group (and brother of SCO CEO Darl McBride).
I very much enjoyed hearing the latter two talk about free
software for a while before the panel, and I even had the
opportunity to meet Mr. McBride and talk to him briefly about
free software and EFF's work. Professor Moglen made a
great showing on the panel.
