Page II: Kazaa's chief lobbyist, Philip Corwin, says Hollywood is sparing no expense to squash P2P.
Neither Sharman Networks nor any of the other peer-to-peer companies were invited to participate in those negotiations. We were just labelled as bad actors, while other people talked about the method and timing of our execution.
Do you think the entertainment industry overreached by asking for too much?
Yes. Particularly the way they did it. It became known that the RIAA and MPAA had been working with Senate staff on that language for over a year. Then suddenly this was put on the table, and the other side is told: "You have two months to reach a deal."
I can't think of any precedent for parties in a legal case coming to Congress and saying, "We're losing the case under current law. Can you change the law so we can win?" I think it's very unseemly. (Ed. note: The Induce Act was designed in part to overturn court decisions saying that the Grokster and Morpheus file-swapping networks were legal to operate.)
That's a procedural objection -- if you had time to review the Induce Act and the legal case was over, would you still object?
I learned (early on) to respect the legislative process. Whether or not you agreed with the legislation that was enacted, the process resulted in better legislation. Most of the copyright proposals that we've seen in the last few years, if they had gone through the regular process, would not have gone as far.
It's clear that they'd like to create a new cause of action of secondary infringement that would penalise new technologies and business models. That's very dangerous. Hollywood with its very deep pockets would use a law like that to crush new companies that were guilty of nothing.
Could you ever agree with the idea that a company should be legally liable for inducing infringement on a peer-to-peer network?
I, on behalf of my client, could never agree. Why would they ever agree to a change in the law that will leave them open to fighting a new lawsuit -- when this is very beneficial technology, and they've never done anything to indicate they encourage or look the other way about copyright infringement?
Looking ahead, what do you think of the idea of imposing a new tax -- perhaps on Internet connections -- to compensate content owners for losses caused by piracy?
I think the best way to reduce piracy on peer-to-peer networks is for the content owners to license their content in a way that's attractive. There's always going to be some unauthorised distribution going on. (There has been discussion) of having some kind of compulsory licence that would compensate copyright holders. My client's not advocating it, but they think it's worth looking at.
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This is an issue for Congress to consider. When I first began lobbying for Sharman, we did write (a policy paper to) Congress to suggest what we called an intellectual property use fee.
The Senate approved a relatively modest package of copyright bills, but the House left town for Thanksgiving without voting on it. What happens next?
I don't know at this point whether they're even going to take up the Senate-passed bill. My current information is that they'll strip out (some of the) language and send it back to the Senate .... It's by no means clear that it'll be passed by the House in a form that can be sent to the president this year.
What's your take on the creation of the US intellectual property czar as part of the appropriations bill?
Something like that should not be done without public debate. It raises this concern that we've seen throughout this Congress -- copyright legislation slipping through without public scrutiny.
Also, I think there's a real question about whether we need to create a new federal bureaucracy. It doesn't just create a new post. It creates a whole new staff for that person. When you've already got people at the Department of Justice, at the State Department, at the Commerce Department, at the Copyright Office involved, there's a question about why we need a new office in government with new staff.
Look ahead to the 109th Congress that will take office in January. Your predictions?
I'm not privy to the inner sanctums of the RIAA and MPAA. There are individual members of Congress who have their own views too. But I'm very optimistic about the 109th Congress. It was tough lobbying on behalf of Kazaa in this Congress. Hollywood's forces have a lot of people on retainer. They have big PAC funds. They put a lot of effort into slandering peer-to-peer technology. They put a lot of effort in trying to push these bad bills through Congress.
Now there are better alliances between industry and (nonprofit groups, thanks to opposing the Induce Act). It'll make it much more difficult to push bad bills through in the 109th.
What are your views on Sen. Arlen Specter, who seems to be the next Judiciary committee chairman?
I really have no idea. Sen. Specter hasn't been particularly vocal or active in copyright areas. We just don't know. I -- and others -- plan to meet with his staff as soon as possible and try to gauge what his agenda will be. There's also talk that Sen. Hatch would try to convince Sen. Specter to create an intellectual property subcommittee that he'd chair.
I'm sure you'd be delighted with more proposals from Hatch.
If that does happen, my only publicly expressed hope is that we'd see these ideas from Sen. Hatch get much more debate than in the last Congress. (Ed. Note: The Pirate Act permits federal prosecutors to file civil lawsuits against copyright infringers.)
The Pirate Act got through the Senate without any hearings, without any committee markup, without any Senate floor debates. Ultimately that was not in the interests of the proponents of that legislation.
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