Record labels' man in Washington

RIAA lobbyist Mitch Glazier says the music industry's antipiracy lawsuits are working--and that they won't affect the iPod.

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
9 min read
ASPEN, Colo.--Mitch Glazier is one of the most influential lobbyists you've never heard of.

Glazier, 38, is responsible for persuading Congress to heed what the Recording Industry Association of America wants. His latest project is to seek support for a slew of bills, some with criminal penalties, that the RIAA hopes will prompt Americans to think twice before sharing music on peer-to-peer networks.

Before joining the RIAA in February 2000, Glazier was an aide to the very committees he's now targeting as the music trade association's senior vice president for government relations.

It's the position that I hold. I'm an advocate. In that position, I'm going to suffer some attacks.
Glazier previously worked at the Chicago law firm Neal, Gerber & Eisenberg and went to law school at Vanderbilt University.

CNET News.com spoke with Glazier at a recent conference here about the Republican National Convention, outlawing the iPod, his rocky relationship with open-source activists and what new laws are imminent.

Q: You've been busy suing thousands of individuals. Do you have any regrets?
A: No, it's worked. For mainstream users, it was absolutely necessary to educate them that this kind of intangible theft is theft and causes real damage. Sometimes the only way to do that is to enforce your rights.

Do you ever read open-source or free-software advocacy sites like Slashdot?
I don't personally, unless it's forwarded to me by our news guys.

Do you think that in those circles, you or the Motion Picture Association of America is disliked more?
Certain folks in the grassroots part of the tech community see the Internet as a revolutionary tool in a manner that will completely upset any kind of institutional organization that has existed in the past, and anything short of that utopian revolutionary result will be viewed as a failure.

We're very open-minded in supporting any alternative that successfully targets the bad actors and successfully does not target legitimate actors--period.
The music industry happens to be the industry that was the first hit because of bit size. We have been the first poster children. If you had to compare by focus, we probably win only because movies take a lot longer to download so they haven't been victimized as much as we have been.

Do you ever feel personally attacked?
Generally, I don't. I do when I speak on campuses around the country or when I speak in front of certain audiences. I don't take it personally, because anyone else would be equally attacked. It's the position that I hold. I'm an advocate. In that position, I'm going to suffer some attacks.

You've been a big fan of the Induce Act, which was supposed to outlaw file-swapping networks and any other products that "induce" piracy. What do you think of one proposed alternative to the Induce Act, which is more narrow?
As drafted, I don't think that it achieves the purpose set out. I'm not sure that a business that utilizes peer-to-peer in order to profit by encouraging mass infringement would actually be held liable. But I think the Consumer Electronics Association should be commended for putting on the table a serious proposal that contains a very interesting idea, intended to separate legitimate manufacturers from illegitimate pirates.

What are the odds of getting some version of the Induce Act enacted this year?
I think they're good. You couldn't tell by just talking to each of the parties. But if you look at where everybody is now, (they're talking about) isolating the bad actors in a manner that doesn't require any technological mandates, has no functional specifications and has the goal of assuring that no legitimate actor gets caught in the net.

You preferred the original Induce Act. How far are you willing to go?

There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.
We're very open-minded in supporting any alternative that successfully targets the bad actors and successfully does not target legitimate actors--period. The original Induce Act, we support, because it had the element of intent, which was meant to draw the line between the good guys and the bad guys. The sensitivities about this legislation don't come from us. Really, they come from the IT community, which has very legitimate concerns.

There has been speculation that the original Induce Act could make Apple Computer liable for selling like the iPod. Could it?

Why not?
The original Induce Act focused on the totality of the circumstances. There's no way that a company that produces great digital rights management for a licensed product is ever going to be shown to want to profit from piracy.

The Electronic Frontier Foundation drafted a faux complaint that said the iPod could be at risk.
They forgot the word "intent." It's a key element. State of mind is the key element of the Induce Act. Overt acts that show state of mind for purposes of proof are key elements of the Induce Act. That said, we understand that in this atmosphere, corporations would like assurances that they're able to continue the legitimate activities that they're in the business of conducting.

You're also backing the Pirate Act, which encourages the Department of Justice to sue file traders. The Senate has approved it, but what are its prospects in the House of Representatives?
The House and Senate staff work well together, and when they get together to make recommendations about what an intellectual-property package should look like this year, they'll take a look at each of those pieces and try to figure out what best meets the goal of each chairman.

An intellectual property package? Are you going to be pushing for that by the end of the year?
I don't know. It's worked different ways in past Congresses. For example, on the Pirate Act, which the House hasn't considered, the House could say, "With the following changes, we think that the Pirate Act achieves the goals of this committee." The Senate could then approve those changes.

You envision this happening, even with no hearings on the Pirate Act in the House?
I think that each committee has to determine whether there has been enough process on each bill. There have been no hearings on the Piracy Deterrence bill--that the House is about to move--in the Senate. There have been no hearings on the Induce bill in the House. Only the committees can determine whether there's been enough process on each bill.

Are you thinking of an end-of-2004 appropriations bill as a way to get this legislation through?
We're not thinking anything -- it's (up to the committees). But no, I don't think so.

How big of a threat to you is the legislation to amend the Digital Millennium Copyright Act's "anti-circumvention" section?
We're concerned by it. We think it's a terrible precedent. I don't think there's a chance that it goes into law this year. I don't know what (House Commerce Chairman Joe Barton's) plans are for September. I hope that we've done effective advocacy so that the members of the committee don't push it to the floor.

The 9th Circuit handed you a bitter defeat by protecting Grokster and Morpheus. What's next?
No decision's been made.

The Department of Justice would never--and we would never ask them to--go after a college kid for copyright piracy in lieu of going after terrorists.
If the record companies decide to appeal to the Supreme Court, the Grokster decision directly contradicts what Judge Posner ruled upon in the 7th Circuit in the Aimster case. There is a clear split in the circuits on the issue of willful blindness, of pulling down the shade in your architecture so you're not aware of any specific infringement, even though you're well aware that you're producing mass infringement. It's ripe for review.

Has the RIAA changed what it's hoping to accomplish against file-trading networks through legislation or litigation?
The overall policy hasn't changed. The ultimate goal is still the same, which is to produce the most investment in the creative process. We signed (a peace accord with the computer industry) agreeing that tech mandates are not the way to go. But coming up with an actual implementation of how you will target Kazaa (is more difficult).

By suing Morpheus, might you drive other networks further underground?
By suing Kazaa, you might force more people to go to eDonkey. But there's always going to be companies that are willing to do this, despite the risks. Our job is to make the risks high enough that fewer companies are interested in taking those risks.

What are your plans regarding open-source or free software that facilitates file sharing, which tends to be hosted at sites like SourceForge?
I don't know yet. We have dealt with the individual development of peer-to-peer systems on college campuses when the OpenNap systems were being developed. We have stopped college students from developing independent networks and exporting those to other colleges. My guess is that we would have to proceed the same way. But no decision has been made in antipiracy strategy for open source yet.

When will you decide?
We're thinking about it now. Our antipiracy department, headed by Brad Buckles, is constantly searching for how people are pirating our materials. There are lots of ways of trying to deal with it. Some include litigation.

You've failed to persuade the Justice Department to prosecute P2P users using the Net Act. What happens next?

We threw a great party at the Democratic convention; we're going to throw a great party at the Republican convention.
The department realizes that under the Net Act, as it exists, it is possible to prosecute people. But the thresholds written in the Net Act are not an exact fit with the type of piracy. Does that mean uploading a thousand files? Does it mean downloading a thousand files? Does it mean 99 cents a file? If you put up one file that's downloaded a thousand times? Is making it available in your shared folder enough, when it's impossible to prove how many times it's downloaded?

Even if the bill passes, will prosecutors seeking career advancement target college kids over terrorists?
The Department of Justice would never--and we would never ask them to--go after a college kid for copyright piracy in lieu of going after terrorists. Zero money dedicated to the Department of Justice's counterterrorism unit would ever go after someone accused of copyright piracy.

So you think they'll be willing to go after big-time P2P pirates?
They might. We think it's important to prosecute, for deterrence reasons, end users so that a message is sent and people understand that this is criminal activity. Sometimes when a case is prosecuted, people will understand that it isn't right. This is stealing. I don't think anyone is asking the Department of Justice to commit all of its resources to bringing millions of cases against end users. But there are legitimate cases that should be pursued.

Sen. Orrin Hatch has talked about prosecutors filing "tens of thousands" of lawsuits. Is that what you'd like?
We would want the Department of Justice to use its best judgment in prosecuting serious infringers.

You wouldn't object?
No, of course not. But we wouldn't propose it, either.

What's your take on Canada, where it's perfectly legal to download as much music as you can fit on your hard drive?
Canadian law was written a long time ago with the idea of getting material out to the hinterlands, to the northern territories, to the Yukon. I think that its legislature is going to have to grapple with laws written for a good purpose in a different time, when things like P2P weren't available at all.

I hear that you threw a wild party at the Democratic National Convention.
It wasn't a wild party. We threw a great party at the Democratic convention; we're going to throw a great party at the Republican convention. Our goal is to get some of the music that our artists create to our policymakers. Music is a great tool, because it speaks by itself.

What artists will you have?
We had the Black Eyed Peas. At the Republican convention, we'll have Kid Rock.

Does that say anything about their respective political views?
Actually, they're both really cool, hip artists. The nice thing about our parties at the convention is that they're much more about music than politics. There's no stress on politics. (We're co-sponsoring) the party with Intel, TechNet and the Consumer Electronics Association.

At the business level, we're all partners. Our companies and the technology companies are cutting deals every day on new distribution methods. Sometimes, we get too hung up in the policy debate, where it looks like content versus tech. Only in Washington are we sitting on opposite sides of the table.

Rep. Howard Berman didn't re-introduce his bill that would allow copyright holders to disrupt P2P networks. Were you disappointed?

We didn't ask him to introduce it the first time. We thought the intent behind the bill was terrific. We thought the bill, as drafted, didn't come near the kinds of activities that its critics said it did.

It created such a controversy by those who misinterpreted it, focusing on those technological (countermeasures). Given the controversy, I think that it's not a big enough piece of the puzzle to justify the effort, even though it's right.