Gregory Aharonian of the Internet Patent News Service took the notes that follow at the October 1 debate and has allowed the Berkman Center to post them here for public review. These notes are informal and represent Gregory's best effort to fairly capture the discussion, but note that only the archive is authoritative. Others who similarly took notes on the debate and would like to post them here should send their notes to Ben Edelman.

VALENTI: I am not a lawyer. I wanted to be one; go to Harvard Law School. Ended up at Harvard Business School - if I am arrogant, that's what they taught me - haha. Consider William of Occam - Occam's Razor - in essence, "keep it simple". This is about private property, intellectual property, and how, in the Internet era, it is easy to steal. Judge Kaplan (DeCSS case) - last paragraph of the decision - "in excitement of easy access, when you take what is not yours ... it is stealing".

At a Stanford Law School lecture, I asked the audience, and found out that nine out of ten law students were using Napster. One student said: "Yea, I guess it is stealing, but everyone is doing it". What are they teaching at Stanford Law School? The Internet is breeding people who think if it is on the Internet, it is free.

In March, for the MPAA, I organized a new Digital Strategies department. I talk with cyberspace people. I am on the board of two Internet companies. The MPAA DS department is going to organize online, offering movies in a variety of business models at fair and reasonable prices. When we do this, it will be an alternative to stealing. We will use encryption and watermarks in conjunction with hardware and software developers. Again, Judge Kaplan's comment: "if it isn't yours, it is stealing".

LESSIG: Jack is sweet, but I have made a career of people hating me. Lawyers created this problem. "Future of IP"- has the word property. "Intellectual Property" is not in the Constitution of the United States: it didn't exist back then. They had government-backed monopolies instead. Thomas Jefferson was a strong opponent of patents. In Pennsylvania, they didn't ratify the Constitution until the clause in the First Amendment to override control of free speech inherent in copyright. Original copyright was for 14 years, with no control over translation, abridgement or performance uses. In 1790, there were 127 publishers. For 100 years copyright protection was only extended to Americans. It was supposed to be a limited right for authors, but has expanded dramatically in 200 years, to today's life of author plus seventy years, with much control of publishing/sales, and now performance, translation and derivatives.

Until the Internet era, who cared? But with the Internet, everyone can be creative. Copyright now regulates all 200+ million citizens, not the original 127 publishers. It is not a simple question of stealing, but how far control will be extended. Some say it is too easy to copy and steal on the Internet will kill entertainment industry. But they said that about the VCR. I won't deny stealing goes on. But the future is technologies to control distribution of IP to give owners more control without bloated copyright laws. Rights in the real world to use books work fine (like libraries) These practices are easily extended into the Internet world.

The question is this: will copyright holders get complete control over all aspects of their works? Current cases such as DVD / Napster is about control of use. But constitution is about fair return to authors. Walt Disney classics (such as Snow White) were already in the public domain. Why stop future entertainment innovation by allowing complete control of content of these existing works? Technology will provide in the next few years plenty on control of cyberspace IP access. We don't need more controls.

VALENTI: What are you proposing for copyright?

LESSIG: 1) A reasonable term - say 14 years

2) No retroactive extensions of copyright

3) People should be able to make fair use of copyright materials - get rid of anti-copyright protection schemes

4) Stronger conception of importance of public domain materials for creating new works

VALENTI: Some history. Kant wrote: "Injustice of pirating books. It is the moral right of an author to profit from his works." French revolutionaries abolished copyright. Within a year, 20% of French publishing houses went bankrupt.

For the movie business in the Internet era, a threat on opening nights is someone copying the new movie and sending it out over the Internet. An average movie costs $52 million to make. Only two in ten ever profit from theatre sales.

The American copyright term extended to be compatible with rest of the world's copyright schemes. The MPAA is working with Europeans to improve copyright.

Esther Dyson doesn't think we need copyright for anyone, but she sells a high priced, printed (not easily stolen electronicly), non-Internet newsletter with a copyright symbol on each issue. Without protection, who will make these investments? If you can't protect what you own, you won't own anything.

LESSIG: But our founding fathers rejected European views of copyrights, so compatibility not a priori necessarily. We are more oriented towards a fair return copyright system. But incentive? You cannot incent a dead person. We need an intellectual commons.

QUESTION: Were our founding fathers pirates or not for providing the copyright protections we have today?

VALENTI: Well, today's Congress passed these changes. If you don't like it, introduce your own bill in Congress.

LESSIG: But incentives for dead people (i.e. extension of existing copyright terms). Are such retrospective extensions compatible with the founding fathers intent? vVALENTI: Yes. An issue over which intelligent men can differ.

LESSIG: None that I have met. (Ha Ha)

What's your reason? I know in Washington DC, they only give dollars. Not here in Cambridge.

VALENTI: Intellectual property is books, movies, software, etc. America is supreme in this world - people like our stuff. IP is America's greatest export - greater than agriculture and automobiles, etc.

LESSIG: I agree we need a sufficient incentive to produce.

VALENTI: Do you believe that it is OK for people to download music and movies?

LESSIG: Yes, in some cases.

VALENTI: Why is it OK in these cases? Should students be able to download using Napster?

LESSIG: Private sharing of content - sure that's OK. Even if some people are violating the law, it shouldn't allow the control of technologies [like that in the DeCSS case]. The question is their potential for substantial non-infringing use of things like Napster. Instead of controlling the use of Napster, recording industry wants to shut down something it can't control. This is all about maintaining control of distribution.

VALENTI: Boies for Napster uses the same arguments. Look at Sony-Betamax. The VCR had substantial non-infringing use. For example if you time-shift (tape now and playback later). But the court in Sony-Betamax did not rule on shifting to ten million people. So watch how you cite Sony-Betamax. Napster is not time-shifting - but sharing with anonymous millions.

LESSIG: Consider RecordTV's "online VCR" - is this analogous to the VCR case?

VALENTI: If legitimate, yes.

LESSIG: MyMP3.com case. You upload your CD's so you can listen to them anywhere you have Internet access - call it space-shifting. Yet this was shut down. But if you agree with Sony-Betamax, can you support space-shifting?

VALENTI: I agree with whatever the courts rule, which shut down MyMP3. In all cases, the courts have said these systems are illegitimate. Further, we will be coming up with reasonable and fair alternatives for the 98-99% of Americans who are honestly interested in such access.

[Greg note: at this point, questions were taken from the audience. The first audience member was Emmanuel Goldstein, publisher of the hacker's 2600 magazine, and one of the defendants in the DeCSS case.]

GOLDSTEIN: We just lost big lawsuit. Millions were spent on the DeCSS case. I lost the lawsuit, but I don't know what I learned about being a thief. I guess writing software is theft, and pointing to it is theft. But why? Why am I a thief for my links?

VALENTI: Read Judge Kaplan's decision. He looked at fair use, reverse engineering, encryption and rejected them in light of the DMCA.

GOLDSTEIN: Why is it important to control encryption through DMCA?

VALENTI: Laws are there to be changed - if you don't like DMCA, have it changed. My view is to keep the DMCA intact, to allow authors to protect their property.

LESSIG: There is a big difference between perfect control and right to be paid. Nothing should be free cost wise, but free to use/manipulate. Perversion of language to call it theft (like in DVD/DeCSS). There is no evidence that people were pirating DVD works, just de-encrypting. Where is theft/piracy in so using DeCSS software? It isn't theft, rather the issue is free use of content. In its first 150 years, American copyright law changed twice. In my life, it has changed a dozen times. Just to protect Mickey Mouse?

VALENTI: "Limited" in Constitution. Founding father's didn't put in a specific number of years.

QUESTION: Why is music so expensive - do musicians have to be that rich?

VALENTI: Yes.

QUESTION (Erik Eldred): I offer books for free (even copyright books, with permission). About harmonization of copyright extensions, two writers in Paris late 1800s, asked the manager "Why aren't we being paid for playing our music"? The manager didn't pay, so they didn't pay for food, and were arrested. Outrage led to copyright performance rights being passed. Extension had exemption for music for small bars and restaurants. Suppose it had exemption for movies - is that theft?

VALENTI: Yes.

ELDRED: Even if law says you can do it?

VALENTI: I guess so.

QUESTION: Can your efforts to enforce your rights have negative impact on everyone elses rights?

VALENTI: I don't know of any detrimental effect of defense of copyrights.

LESSIG: Suppose technology takes fair use away?

VALENTI: I support fair use.

LESSIG: Yes, but what if technology could reduce attempts by people to have fair use? Like preventing sampling or copying a section, would you oppose these technologies?

VALENTI: Yes, I would oppose. All I want is people to be paid for their efforts.

LESSIG: I really misunderstood you. You do get it. Passed DMCA and technologies and in five years complete control of use. But hearing you talk, you don't see this (like getting rid of fair use). If so, we agree a lot. Difference is over how much control should technology allow. But listen to fears of people (like the DSS/DeCSS crowd) who are worrying about too much control of copyright occurring.

VALENTI: I believe authors have a right to protect their works. And with the Internet, we can do so for a fair and reasonable price.