File-sharing battles leave us out

You want name-calling? File sharers are "thieves" and "pirates." The Recording Industry Association of America and the Motion Picture Association of America are "evil," and one commenter to a recent CNET News.com story said the RIAA sought nothing less than world domination.

For years I have sought not world domination (I leave that to James Bond villains), but rather a pragmatic, middle-ground voice in this debate. I thought I had found one in 2002, when a nonprofit public advocacy group called Public Knowledge was born. I knew the founder, Gigi Sohn, and I respected her greatly. I still do. But it was what Gigi said back then that really resonated with me.

At an event her new group held with the New America Foundation in Washington, D.C., in May of that year, Gigi gave a speech about how most of us weren't represented in the digital content debate. She promised to use her group to bridge the gap between the content industry and the file sharers. She said she would speak for citizens and consumers.

I had been covering the high-tech policy community as a reporter for years by then, including a stint with News.com, so I should have seen the red flags. For instance, one should always be wary of someone claiming to speak for consumers. You and I are consumers, but can you remember the last time you voted for a "consumer representative"? I can't either.

Gigi speaks for some consumers--those who enjoy obtaining unauthorized content for free from P2P networks. She doesn't speak for consumers like me who want digital content, but want to pay for it. Why not? Because by defending those who distribute it for free, she stymies offerings at a price point other than free. Gigi argues that P2P shouldn't undermine CD sales or movie theater attendance because digital content online isn't directly comparable. But free content on P2P most certainly undermines the sale of comparable content on industry-approved sites.

Gigi also speaks for some corporations. On her Web site, she acknowledges corporate funding but won't name the companies. She has been directly aligned, however, with major Internet service providers and consumer electronics groups who profit from the broadband and hardware sales resulting from P2P use.

Another warning sign I overlooked with Gigi was her list of advisers. On that initial list in 2002 was a D.C. attorney named Adam Eisgrau. I'll confess that I had no idea who Eisgrau was in 2002. But he later burst onto my radar screen by founding P2P United, a trade group for just about every P2P company except Kazaa. Eisgrau is still a Public Knowledge adviser, which helps explain why, when covering the Induce Act debate earlier this year as a reporter, I would get off the phone with Adam, get on the phone with Gigi, and hear exactly the same words spoken to me.

There's nothing wrong with Gigi planting her flag with P2P United, with the Electronic Frontier Foundation (Fred von Lohmann is an adviser) or with anyone who believes that the digital age is forcing us to abandon longstanding copyright principles. But that alliance is not seeking to bridge the gap between P2P and the content community.

Gigi also misdirects the debate by arguing she is attempting to protect the public domain. I think it's significant that our Founding Fathers ensured copyright protection early on in the U.S. Constitution, recognizing that such protection for a limited time was essential to ensure the "progress of science and useful arts."

One can argue the current protections are too long, as Stanford University Law Professor Lawrence Lessig did so--unsuccessfully--before the U.S. Supreme Court. (Lessig is on Public Knowledge's board of directors.) But the P2P debate isn't about the length of current copyright protections. A new music single or a prerelease movie that pops up on eDonkey wouldn't be eligible to enter the public domain for some time under any copyright regime.

I watched the Induce Act debate with some frustration. I sympathized with the bill's backers, who wanted to target companies designed to profit from the criminal behavior of others. I also sympathized with those in the technology community who feared that such legislation could lead to unintended consequences. There were some involved in that debate, including a few software representatives, who tried to work out a compromise. But Gigi made it clear from the beginning that her only goal was to ensure the Induce Act never left the Senate Judiciary Committee. She accomplished that goal and bragged about it in a recent e-mail soliciting donations.

It may be impossible to bridge the gap between red states and blue states. But as we enter the 109th Congress with the digital content debate very much alive, I'll be looking for anyone who wants to join me in seeking that elusive middle ground.