I went to a live taping of the show Justice Talking today, where the topic of debate was filesharing, the Grokster case, sampling, and many other free culture issues. Kembrew McLeod, a free culture-y communications professor from UIowa, was debating Dean Garfield, a lawyer who currently works for the MPAA and formerly represented the RIAA in suits against Audiogalaxy and Kazaa. I managed to get in a question early on in the program, so you should be able to hear me if you listen to the show (called “Peer-to-Peer File Sharing“) in late April when it airs.
Kembrew did pretty well for himself, he had done his homework, and it took a lot of guts to face off against the MPAA representative. I’m not sure I would have done half as well if faced with an implacable opponent like Dean Garfield… I’ve fallen victim to stage fright in the past with nothing more than a friendly audience in front of me.
Kembrew’s main problem was that he was too nice. Mr. Garfield kept on interrupting Kembrew, causing Kembrew to lose his train of thought and drop points on a few occasions. Also, Kembrew is a communications professor, and I don’t think we should put forward our non-lawyers to debate experienced, professional lawyers. (Law professors like Lessig are, of course, a different story.) Kembrew seemed uncertain and confused in the face of Garfield’s calculated attacks… Garfield oozed confidence, and smiled most of the time, while Kembrew was clearly nervous and upset. While Kembrew had some happy moments, such as when a question from the audience set him up perfectly to explain that his book was Creative Commons-licensed, he never grinned victoriously like Garfield, and Garfield often returned with a sharp retort. I know that Kembrew can handle public speaking well, and he may be a good debater, but lawyers (especially those as experienced as Garfield) play in a different league.
Which is not to say that Garfield escaped without a few awkward moments. NPR’s talking points or examples that they wanted the debaters to respond to were audio clips that were more often favorable to free culture than not, such as the Grey Album, or part of Kembrew’s documentary on sampling. Also, I believe that we managed to lob some nice questions from the audience. However, Garfield was talented at dodging the question, and avoided answering some of the harder/more complicated/more interesting questions. Kembrew even managed to catch Garfield in a couple contradictions, such as at one moment invoking the “limited times” clause in the Constitution to argue that copyright holders deserve strong control because their time is limited, and then ignoring the fact that copyright effectively no longer has limits, despite a technical expiration date which lies in the far future (and which may always lie in the future unless we fundamentally change our representation in Congress). Garfield was unfazed by this, however, and simply refused to admit that there was a contradiction. Kembrew couldn’t collect points for the contradictions he exposed, because he couldn’t explain adequately why they were contradictions, partially because they were so obvious that it made him flustered to see Garfield evade and deny them. This was an exercise in frustration.
When I got to ask my question, I spoke briefly about the Diebold memos, how we used filesharing networks to spread them around the internet even though this was allegedly copyright infringement, and how if the p2p networks were shut down, we wouldn’t have been able to communicate this information that was vital to our democracy. I then asked, if the Supreme Court rules against Grokster, won’t this remove a vital forum for freedom of speech? Garfield responded that the MPAA doesn’t oppose innovation, and it isn’t attacking peer-to-peer technology, just copyright infringement. This was a half-truth, if not an outright lie. Why do I say that?Read Bill’s “transcript” of a conversation he had with Dean Garfield after the show:
I flocked to him, quite first among anybody there, to grill him on this point. Note how clearly he admits to using the law to ban technology, despite his repeated avowal during the show that they’re not interested in banning technologies such as P2P.
Bill Herman’s Interaction w/ Dean Garfield after Justice Talking:
Bill: You say you’re not anti-technology, but you guys sued the Norwegian programmer who designed a program designed to play legally purchased DVDs on their home computers running Linux. [It’s called DeCSS.] How is that not anti-technology?!
Dean: That’s a circumvention technology, which is illegal.
Bill: Okay, so you have the law on your side, but that doesn’t answer my question: how is that not anti-technology?
Dean: (Starts talking about 321 Studios.)
Me: No, I’m not talking about DVD X-Copy. I’m talking about DeCSS, which involved hacking the DVD encryption key but was designed merely to play, not copy, DVDs.
Dean: That’s still the same idea. It’s a circumvention technology, and it’s illegal.
Me: (Something to the effect of “We’re talking about people playing DVDs on their home machines, and you guys promise Linux software but it’s really just vaporware.” To my discredit, I’m getting quite impolite by this point.)
Dean: (Looking at a long line of hand-shakers after me.) I’ve answered your question.
Yes, Dean, you have.
On a side note, consider his shift from DeCSS (which merely plays DVDs on Linux machines) to DVD X-Copy (a commercially released Windows program that copies DVDs). This is evidence, to me, that he’s either unprepared or feigning ignorance and shifting to higher rhetorical ground. I sincerely suspect the latter.
If you folks can & want to arrange it, I’ll debate any of these fools any time, any place. Really. Let me know. Tempt them with “it’s just a Ph.D. Student…” 😉
Although I do trust in both Bill’s education and enthusiasm, he’d have to keep his cool better than that in a real debate. Dean Garfield was devastatingly effective because he kept his cool almost the entire time, as a good lawyer does… when debating a lawyer of his caliber, you want to avoid looking like you’re throwing a tantrum, at all costs. Of course, by the end of this program I was probably about as angry as Bill was at Mr. Garfield, so perhaps I shouldn’t talk.