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Fighting for file swapping on Capitol Hill

As chief lobbyist for Kazaa's parent company, Philip Corwin says the entertainment industry is sparing no expense to squash the P2P phenomenon.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
8 min read
Philip Corwin has one of the least enviable jobs in Washington, D.C.: He defends file-swapping networks.

That's not a trivial task for Corwin, the lobbyist for Kazaa's parent company. When making the rounds on Capitol Hill, Corwin, 54, is up against the dual political powerhouses of the Recording Industry Association of America and the Motion Picture Association of America.

Australia-based Sharman Networks hired Corwin almost three years ago to be its lone representative in Washington, D.C. Since then, Sharman has been fending off lawsuits and a slew of legislative proposals designed either to shutter the service or scare users away from it.

(RIAA chief Cary Sherman's) industry is actively marketing some of the most vile content imaginable.

Being an underdog is a switch for Corwin, who spent much of his career lobbying for the influential American Bankers Association, the Commercial Finance Association and the Independent Bankers Association of America, after a stint as a U.S. Senate staffer. Now he's a partner at the Butera & Andrews lobbying firm.

Kazaa is one of the largest and most successful file-trading networks. It boasts about 2.48 million users a day, roughly the same as eDonkey's claimed 2.54 million.

CNET News.com spoke with Corwin about piracy, pornography and his experiences as a lobbyist.

Q: What's it like lobbying against the RIAA and the movie studios?
A: Personally I get along fine with them. But they play real hardball when they lobby, and we play just as hard when we're lobbying back.

RIAA President Cary Sherman told Congress last year that pedophiles were using Kazaa to seduce children. Is that what you mean by hardball?
They spend an awful lot of time dwelling on the allegations that minors are being exposed to pornography when they use peer to peer. I think this whole content path is a very dangerous one for them to go down.

This is an industry that's actively promoting and marketing to minors songs that can only be described as aural pornography. If they want to talk about content, we'll be happy to talk about their content. Mr. Sherman's industry is actively marketing some of the most vile content imaginable.

You wouldn't quibble with the claim that pornography is popular on peer-to-peer networks, would you?
My client provides software with highly effective filtering tools. The software comes with a content filter that's based on suspect words. Beyond that, we give parents the ability to set further filters with password control. We provide a way for parents--who need to take some responsibility with any Internet use by their children--to block that.

And if a minor downloads Kazaa without a parent's knowledge?
There's no software--whether it's a peer-to-peer application or a Web browser--that can be programmed to compel parental responsibility. Parents have to keep watch over what programs their kids are using and how they're using them.

Does your job ever get personal?
I don't think so. When they make gross misstatements about my client, we respond by correcting them, by setting the record straight. I think everyone understands by now that the RIAA and Hollywood in particular have really been involved in a vicious, inaccurate smear campaign against peer-to-peer technology over the last two years.

What differences do you see between the recording industry and the MPAA?
The RIAA lobbyists seem to be more fixated on pornography. Other than that, they can make claims--which I think are suspect--that they've been harmed in some way. Meanwhile, the movie industry is reporting record profits.

If Kazaa and its rivals become as slick and easy to use as Apple Computer's iTunes, do you honestly think that many people will still be buying music in a few years?
Absolutely. We've already got proof of concept. Peer to peer is already the leading technological platform for the distribution of licensed content. It's already well ahead of central-server models like iTunes.

It's not well-known, but every major manufacturer of computer games has licensed their content for peer-to-peer distribution. Even though those same computer games are available for free elsewhere on peer to peer, people are plunking down $30 or $50 for them--so they have a warranty and no worries about a bogus or harmful file.

Sharman Networks has sent repeated notices to Google complaining about links to the ad-free version of Kazaa called Kazaa Lite. Is it ironic for your client to threaten lawsuits over copyright violations?
I don't think so. Kazaa Lite is an application that's using the Kazaa name in a way that's not tied to Kazaa. There are also, as I understand it, technical issues with the hacked software they were offering. My client's business model is simple: They offer a pay ad-free version and an ad-supported free version.

And if someone offered Kazaa Lite but with a name of P2P Lite?
If someone wants to offer their own self-created version of P2P software, we can't do anything.

Even if it uses the same network as Kazaa?
Then it's using proprietary code.

Why do you think the Induce Act died in Congress this year, even though it had the support of the MPAA and RIAA?
Neither Sharman Networks nor any of the other peer-to-peer companies were invited to participate in those negotiations. We were just labeled 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 penalize 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 unauthorized distribution going on. (There has been discussion) of having some kind of compulsory license that would compensate copyright holders. My client's not advocating it, but they think it's worth looking at.

Would you ever rule out lobbying for an Internet provider tax?
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 U.S. 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.

It was tough lobbying on behalf of Kazaa in this Congress. Hollywood's forces have a lot of people on retainer.

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.