Friday’s debate between Dean Garfield (MPAA’s head lawyer) and Wendy Seltzer (EFF lawyer) at Princeton was fairly interesting. I’m hoping video will be available sometime soon.

At one point, though, Dean Garfield said something that totally floored me. He was talking about technologies like Audible Magic that claim to be able to detect and block copyrighted music as it passes across a network. He asserted that that technology would be effective in stopping infringement. That’s a pretty iffy claim already. Then he went on to assert that “nobody disputes” the effectiveness of filtering.

That’s a pretty nervy statement to make in a debate. First, it’s obviously false. To give one well-known example, the computer science professors’ amicus brief in the Grokster case disputed that very claim. Two or three signers of the brief were in the room, and one of them (me) was moderating the debate.

Second, saying “nobody disputes X” is a questionable debating tactic, since it practically invites somebody in the room to falsify your statement by disputing X. Which is exactly what I felt compelled to do. Several members of the audience told me later that they would have raised their hands and disputed the effectiveness of filtering, had I not done so.

Third, if you’re going to make a statement that nobody disputes X, you ought to be able to back it up with strong evidence in support of X. When challenged to give even one example of an ordinary site where filtering was effectively preventing infringement, Mr. Garfield was unable to respond. He also dodged the question of whether the filtering software he advocates has undergone independent testing.

So why did he say that nobody disputes the effectiveness of filtering? I can only surmise that he felt compelled to say it because it is an MPAA/RIAA talking point at the moment. The old talking point used to be that filtering works. The new version, apparently, is that everybody agrees that filtering works. The change, if indeed there is one, shows that skepticism about filtering is spreading. It’s an old lawyer’s trick to assert that a claim is undisputed, in order to avoid addressing the contrary evidence.

Still, the debate was on the whole a success. Students who had studied the issue had the chance to cross-examine the speakers. Students who had not studied the issue heard the basic points made. The best possible debate, though, would have fewer talking points from both sides.

Yesterday the RIAA announced lawsuits against many college students for allegedly using a program called i2hub to swap copyrighted music files. RIAA is trying to paint this as an important step in their anti-infringement strategy, but it looks to me like a continuation of what they have already been doing: suing individuals for direct infringement, and trying to label filesharing technologies (as opposed to infringing uses of them) as per se illegal.

The new angle in this round of suits is that i2hub traffic uses the Internet2 network. The RIAA press release is careful to call Internet2 a “specialized” network, but many press stories have depicted it a private network, separate from the main Internet. In fact, Internet2 is not really a separate network. It’s more like a set of express lanes for the Internet, built so that network traffic between Internet2 member institutions can go faster.

(The Washington Post article gets this point seriously wrong, calling Internet2 “a faster version of the Web”, and saying that “more and more college students have moved off the Web to trade music on Internet2, a separate network …”.)

Internet2 has probably been carrying a nonzero amount of infringing traffic for a long time, just because it is part of the Internet. What’s different about i2hub is not that some of its traffic goes over Internet2, but that it was apparently structured so that its traffic would usually travel over Internet2 links. In theory, this could make transfer of any large file, whether infringing or not, faster.

The extra speed of Internet2 doesn’t seem like much of an issue for music files, though. Music files are quite small and can be downloaded pretty quickly on ordinary broadband connections. Any speedup from using i2hub would mainly affect movie downloads, since movie files are much larger than music files. And yet it was the music industry, not the movie industry, that brought these suits.

Given all of this, my guess is that the RIAA is pushing the Internet2 angle mostly for policial and public relations reasons. By painting Internet2 as a separate network, the RIAA can imply that the transfer of infringing files over Internet2 is a new kind of problem requiring new regulation. And by painting Internet2 as a centrally-managed entity, the RIAA can imply that it is more regulable than the rest of the Internet.

Another unique aspect of i2hub is that it could only be used, supposedly, by people at univerisities that belong to the Internet2 consortium, which includes more than 200 schools. The i2hub website pitches it as a service just “by students, for students”. Some have characterized i2hub as a private filesharing network. That may be true in a formal sense, as not everybody could get onto i2hub. But the potential membership was so large that i2hub was, for all intents and purposes, a public system. We don’t know exactly how the RIAA or its agents got access to i2hub to gather the information behind the suits, but it’s not at all surprising that they were able to do so. If students thought that they couldn’t get caught if they shared files on i2hub, they were sadly mistaken.

[Disclaimer: Although some Princeton students are reportedly being sued, nothing in this post is based on inside information from those students (whoever they are) or from Princeton. As usual, I am not speaking for Princeton.]

One of the most famous observations about online discussions is Godwin’s Law:

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

When it comes to copyright policy, a related law seems to hold:

As a copyright policy discussion grows longer, the probability of pornography being invoked approaches one.

What’s really interesting is the corollary:

When the topic of a copyright policy discussion switches to pornography, each side suddenly adopts the other side’s arguments.

For example, Hollywood argues that filesharing will lead to a shortage of movies, because nobody will make movies they can’t sell. But when the topic switches to pornographic movies, suddenly they start arguing that filesharing increases the creation and availability of content.

Similarly, some P2P vendors who say they can’t possibly filter or block copyrighted content, suddenly decide, when the topic switches to porn, that they can provide effective blocking. See, for example, a recent letter from the Distributed Computing Industry Association (a group of mostly P2P companies) to the Senate:

It is a fact that no industry – including the entertainment industry that cynically hatched the strategy of wrongly equating P2P with risks to children – has been more responsive than ours to concerns about the exposure of young people to inappropriate material. For example, by simply using the password-protected family filter included at no charge with leading P2P software programs, a parent can ensure that NO pornographic images or videos will be returned in response to any searches, including those of known child-pornography keywords.

The assertion that “NO pornographic images or videos will be returned in response to any searches”, can’t possibly be true. Content-based porn filtering will do just as poorly on content received via P2P as it does on content received via the web. These filters will be just as leaky as everybody else’s, and of course they’ll only operate for users who choose to turn them on.

I guess porn really does turn your brain to mush.