p2pnet News InterView:- If you’re online and if you know p2p is shorthand for peer-to-peer, you’ll know the name Fred von Lohmann.

He says he’s an advocate for the fans (sometimes called ‘consumers,’ sometimes called ‘end-users’, sometimes called the public)’ and ‘a music fan first, and everything else second’. And as Wikipedia sums it up, he’s been on CNN, CNBC, ABC’s Good Morning America, The NewsHour with Jim Lehrer, and Fox News O’Reilly Factor, as well as being widely quoted in a number of national publications.

Von Lohmann has an AB from Stanford University and a JD from Stanford Law School and in a world where lawyers are largely perceived as whores who’ll do anything for money, he stands out not only as someone who’s hard-core  – hard-core for user rights – but also as a genuine visionary at a time when the superlative is seriously over-played.

As the EFF’s senior staff attorney specializing in intellectual property, von Lohmann represented Morpheus owners Streamcast Networks in Grokster vs MGM.

His intelligence and commitment are deeply respected on all sides and as an expert in intellectual property matters, he’s represented programmers, technology innovators and individuals. He’s also involved in EFF (Electronic Frontier Foundation) efforts to “educate policy-makers regarding the proper balance between intellectual property protection and the public interest in fair use, free expression, and innovation,� says the foundation.

Before joining EFF, von Lohmann was a visiting researcher with the Berkeley Center for Law and Technology, zeroing in on the impact of p2p on the future of copyright. And before that, he was an associate with the international law firm Morrison & Foerster LLP, concentrating on transactions and counseling involving the Internet and intellectual property.

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p2pnet: Where do you come from?

von Lohmann: I spent my childhood in Southern California (most of it in “the OC”). I’ve been living in the SF Bay Area for most of the last 19 years.

p2pnet: Is lawyering part of your family background?

von Lohmann: No. My father was an engineer, my mother a waitress. Both are immigrants, arrived on these shores with just the contents of their suitcases, and managed to build themselves a pretty reasonable facsimile of the American Dream. I’m very proud to be their son.

p2pnet: Did you ask to join the EFF, or did they invite you?

von Lohmann: I applied for the job. Working for EFF was my dream job since my early days of law school. I’ve described my “conversion moment” in a post at Deep Links as part of EFF15 blogathon. In short, it was John Perry Barlow who inspired me, thanks to his now-classic article for Wired Magazine entitled “The Economy of Ideas.”

p2pnet: How would you describe your role as an advocate for common sense in the digital 21st century?

von Lohmann: I’d describe my role as an advocate for the fans (sometimes called “consumers,” sometimes called “end-users”, sometimes called the public). Intellectual property laws have always sought to strike a balance between owners and the rest of us, all in the name of the public interest. Unfortunately, there are more advocates paid to speak for the owners than for the fans. I’m just trying to right the balance a little. After all, if it weren’t for the fans and end-users digging into their pockets every day to pay for movies, music, software, books, newspapers and magazines, there wouldn’t be any “IP industries.”

p2pnet: Given your ongoing involvements, I doubt if you’re married. But you never know : ) So are you?

von Lohmann: Engaged to be married, actually.

p2pnet: You’re knowledgeable on software and you’re obviously technically inclined. Just how adept are you? And where did you acquire your skills?

von Lohmann: I’ve taken one college-level programming course, which I took while in law school for kicks. It made me realize that I don’t have the patience for debugging code (debugging legal arguments, on the other hand, I enjoy). Otherwise, I’m just an enthusiastic Mac user who tries not to hurt himself when playing on the OS X command line.

p2pnet: Do you use p2p applications for downloads? If so, which ones and for what kind of files? If not, why not?

von Lohmann: Not often. I use Bit Torrent once in awhile to download TV shows that my TiVo has missed and live recordings of my favorite bands. I’m a big music fan and audiophile, so I buy CDs and vinyl. Most of the mp3s floating around on p2p networks don’t have the kind of audio quality I want. Plus, I like the physical object – I actually miss the physical heft of a vinyl record (and recently bought my first turntable in 20 years to get back to it). I’m an old fashioned music fan, I guess.

p2pnet: Do you have time for any serious interests on the side?

von Lohmann: When it comes to hobbies, I’m a music fan first, and everything else second. Those secondary hobbies include indoor rock climbing, sea kayaking, and scuba diving.

p2pnet: What’s your favourite band? What’s your favourite piece of software? And what’s your favourite company?

von Lohmann: Favorite band: Tori Amos. Favorite software: iTunes (which does a surprisingly good job managing my 15000+ song music library). Favorite companies: small American high end audio companies, like Audio Research, Conrad Johnson, Pass Labs, Vandersteen, Wilson Audio, that continue to make equipment that serves the music first.

Most Americans don’t know that some of the greatest stereos are made by American tinkerers!

p2pnet: How does it feel to know you’re a major, and highly respected, player in a world where all too often, only money and political influence decide who’ll speak and who’ll be listed to?

von Lohmann: It’s a great honor and privilege to get paid to work on issues because you believe in them, rather than because a company needs someone to push its interests. If I won the lottery today, I’d come to work tomorrow. How many people can say that? I am grateful to EFF’s supporters every day for making it possible.

p2pnet: What was the most satisfying case you’ve been involved in?

von Lohmann: Ironically, it wasn’t a cyberlaw case at all. While clerking for the federal district court in San Francisco, I worked on the constitutional challenge to California’s Proposition 209, which eliminated affirmative action in public employment, public education, and public contracting. My judge, Thelton Henderson, declared the proposition unconstitutional, and while the decision was ultimately reversed on appeal, it remains the case I am most proud to have worked on.

p2pnet: Who’s your favourite ‘opponent,’ so to speak? And who’s your hero?

von Lohmann: I can’t name a single favorite “opponent.” Frankly, I’ve had the privilege of dealing mostly with sophisticated, smart people who work for the Dark Side. Many of them I like and respect personally. But the companies they work for are not in business to do the right thing, but rather to do the profitable thing. In a world of vigorous competition, the customer can often keep companies honest. Unfortunately, where the entertainment (and some parts of the software) industry is concerned, the reality of oligopoly means that the right thing and the profitable thing are increasingly far apart.

As for my heroes, I’d give the nod to the entire EFF Board of Directors – Larry Lessig, John Perry Barlow, John Gilmore, Brewster Kahle, Brad Templeton, Pam Samuelson, Joe Kraus, Dave Farber – each is a visionary, each has made a commitment to give back to the public good after finding success in their professional lives. Oh, and Joss Whedon. I’m a big fan of Buffy the Vampire Slayer.

p2pnet: Have you ever had invitations from anyone in the movie, music or software industries to work for them?

von Lohmann: No.

p2pnet: Will you ever go into private practice, and if you so, in what area?

von Lohmann: I was in private practice at a big corporate law firm in San Francisco for two years. I have no current plans to return to private practice, but you never can tell.

Of ‘piracy’ and ‘pirates’……..

p2pnet: In your opinion, are the entertainment and software industries truly being “devastated,” as they claim, by file sharing?

von Lohmann: The movie industry is clearly not being “devastated” – in fact, they’re enjoying some of their most profitable years in history. Similarly, I see no evidence that the software industry is being “devastated.” There is plainly more than enough incentive today for people to continue investing in the software industry. When it comes to the music industry, I think we simply don’t have enough data to know how much (if at all) file sharing has contributed to the recent downturn. But even the music industry can’t plausibly claim to be “devastated”. Frankly, I’m guessing a lot of airline industry executives would be happy to trade jobs with their record industry counterparts. Plainly, lots of what’s ailing the music industry has nothing to do with file-sharing.

In the long run, I’m certain that file-sharing (and the internet generally) will be a huge boon to the entertainment industries. After all, for a century, every new technology that the entertainment industry started out attacking turned out to be a huge new business opportunity. The player piano, phonograph, broadcast radio, jukeboxes, cable television, VCRs, cassette decks, you name it. I see no reason to presume that the internet will be the first technology in a century that will be an exception to this rule.

p2pnet: Do you think someone who downloads a music or movie file is in effect negating a sale somewhere, some time?

von Lohmann: When tens of millions of Americans are downloading music, one of them will support virtually any proposition. Doubtless, some file-sharers are downloading as a substitute for purchasing. For others, the downloading is driving more purchases. Many policy-makers and economists think that the important question is which response is predominant. I think that’s looking at the wrong thing. After all, if downloaders were given the opportunity to pay a reasonable, up-front, flat fee in exchange for the freedom to download whatever they like, that would create an altogether new way to monetize downloading.

We at EFF have proposed something like this, known by copyright lawyers as “voluntary collective licensing“. Instead of asking whether downloading sells more or fewer CDs, shouldn’t we all be talking about the new business models that might capitalize on this global phenomenon that is clearly great for the fans?

p2pnet: Is it reasonable to mention both ‘pirates’ and file sharers in the same breath – or, put another way, are they components of the same problem, as the entertainment and software industries suggest?

von Lohmann: I think the use of the term “pirate” is inaccurate and unfortunate. “Piracy” has traditionally been used to refer to infringers who are selling counterfeit copies for personal gain. Lumping typical downloaders into the same group as for-profit pirates is a mistake – they are not the same people, are not driven by the same motives, and are a great deal more diverse in age, income, and circumstance.

Pirates are never your customers. Downloaders, on the other hand, are the core of music fandom – they are, like it or not, the core demographic that the music and movie industries will need to please in the future.

Are parents responsible for what their kids do?

p2pnet: Do you agree the music, movie and software cartels are bent on dominating and, ultimately, completely controlling online sales distribution in the same way they control offline markets? If you do, will they succeed? And if not where, in your view, do they stand and where are they headed

von Lohmann: Certain parts of the entertainment industry – the major motion picture studios, the major record labels – are still extremely afraid of losing their grip on distribution. After all, these businesses have depended for decades on controlling the distribution bottleneck. These are the dinosaurs of the copyright industries, and they’ll soon be facing lots of smaller players who will be quicker to adapt to the digital world. The dinosaurs will either need to evolve to become birds (smaller, lighter, more nimble) or go extinct.

Other parts of the entertainment industry – like BMI and ASCAP, as well as some of the MMO publishers – are better suited to making the transition to a world where controlling distribution is not as important as licensing and subscriptions.

p2pnet: Do you agree with the RIAA, MPAA, BSA, IFPI, etc, etc, that people who use the p2p nets to share files with each other are criminals and thieves?

von Lohmann: See my answer above about “pirates.”

p2pnet: Is it acceptable to make parents responsible in a financial or other sense for something their children may, or may not, have done?

von Lohmann: The increasing number of lawsuits against the parents and grandparents of alleged file-sharers is a particularly unfortunate part of the recording industry’s litigation campaign against music fans. There is no precedent in copyright law for holding parent responsible for the infringing activities of their minor children. If the question ever went to court, I believe the RIAA would lose. Unfortunately, the RIAA has made it clear that, if a parent fights the lawsuit, they will simply sue the child directly.

Most parents are unwilling to expose their kids to that kind of ordeal, so they settle.

The cartels and the law …….

p2pnet: Do you think it’s OK for the cartels to ‘work’ so closely with various enforcement agencies in the US and around the world in raids and other operations?

von Lohmann: I can’t speak for what goes on in other countries. In the US, law enforcement has (to the best of my knowledge) largely restricted their involvement to situations involving commercial piracy. I have no problem with that – where commercial pirates are concerned, copyright owners should have effective remedies to seize counterfeit goods before they disappear out the back door. Of course, if we have US Marshals breaking down college dorm room doors to nab file-sharers, the issue would be different.

We’ve been watching law enforcement tactics closely, especially in the cases involving the operators of Bit Torrent trackers, where the tactics appear to be more heavy-handed.

p2pnet: The movie and music industries in particular seem able to have their wants acted upon at the highest government levels. Is it reasonable for them to be able to wield this kind of influence?

von Lohmann: For better or worse, in a modern democracy the political process is responsive to two things: votes and money. For most of our modern history, the copyright industries have dominated the political process with the latter. That won’t change until the fans start making a difference with the former. As a tax-exempt nonprofit, there’s a limit to how much lobbying and political organizing EFF can do. But there are others who are beginning to engage on a more political level. I don’t believe that a majority will ever be “single issue copyright voters.” But even a small minority, with targeted donations and smart political operatives, can bring down members of Congress who vote against them on the issues they care about.

p2pnet: Is copyright ‘crime’ on a par with, say, robbing a bank? Is it a crime at all, and it you think it is, at what kind of level should it be ranked?

von Lohmann: I think most people see commercial piracy as a crime. Perhaps not as bad as robbing a bank, but certainly worthy of criminal sanction. As for noncommercial infringement, I think most people don’t view it as a crime. Fortunately, the US Attorneys around the country appear to agree – there have been virtually no federal criminal prosecutions of “garden variety” file-sharers. The worst possible thing for our civil liberties would be a world where 60 million American music fans are suddenly potential criminal suspects – thanks to downloading music! That would put more Americans “under suspicion,” and thus subject to government coercion, than ever before in our nation’s history.

p2p and distribution …….

p2pnet: How would you greet the contention that if the software and entertainment companies were to start using p2p technologies for handling and distribution, they’d see both a reduction both in counterfeiting and duplicating and in costs associated with physical product?

von Lohmann: If the p2p revolution has taught us anything, it’s that the fans (assisted by technology developers) do a better job distributing music than any record label or retailer ever has. The only problem is that the artists and rightsholders aren’t being fairly compensated. It seems to me that if we concentrate on the compensation problem, and leave the distribution to the fans and new technologies, everyone would end up better off. As I mentioned, EFF has a proposal for how to solve the compensation problem, and it looks as though the record labels may actually be on the verge of experimenting with something similar in the UK by giving blanket licenses to the subscribers of PlayLouder.

p2pnet: ‘It’s only business’ is a popular justification for enterprises or individuals to do something the average person believes is wrong. With that in mind, is it OK for companies, such as Sony, with a major presence in all camps, to be part of the sue ‘em all movement on the one hand, and to be making and marketing equipment – camcorders and burners, for example – used by the people they’re accusing of being unconscionable thieves, on the other?

von Lohmann: It’s a strange place that many technology giants find themselves in. Both Sony and Microsoft are building technologies that help people to make and distribute copies, on the one hand, and are also building DRM systems to restrict what people can do with content, on the other. But you have to remember why technology companies are willing to play ball with Hollywood: because Hollywood threatens to play favorites, releasing their next-generation formats only to those who satisfy their DRM demands. That dynamic can be directly traced to the incredible concentration of market power that we see in the music and movie industries. If we had 5,000 small, competing movie studios, they’d be in no position to tell the technology industry how to build the next DVD player.

p2pnet: Do think there’s room for commercial p2p companies such as StreamCast and Grokster and the studios and labels to sit down together to resolve their differences?

von Lohmann: We’ll see. The trouble, of course, is that p2p file-sharing technologies can be designed and distributed anywhere in the world by virtually any reasonably qualified programmer. That makes it hard to imagine that negotiations alone will resolve the P2P dilemma.

And lastly …….

p2pnet: If you were able to get the movie studios, record labels and software companies to pay honest attention, what would you say to them?

von Lohmann: It’s important to remember that not all of these industries are in the same boat.

To the movie and software industries, I’d say “enjoy your huge profits, but remember that the only way to stay ahead in a Darknet world is by continuing to give customers products that can effectively compete with free.”

To the music industry, I’d say “the p2p horse is out of the barn, so let’s talk about how we can get you fairly compensated for the sharing that is going to continue regardless.”

p2pnet: Do you think it’s acceptable for elected politicians to so obviously accept benefits from the entertainment and software conglomerates, and to so obviously (and actively) represent their interests?

von Lohmann: See my response above about the politics of copyright.

p2pnet: Are the record labels fair to be wholesaling ‘product’ at 65 cents per and up? And should companies such as Apple be sitting still for such charges?

von Lohmann: As in all markets, there’s a price point that maximizes total revenues. I think anyone can see that, in a p2p world, price has to be less than 99 cents per song. After all, Yahoo! is already offering you “all-you-can-eat” music for $5 per month.

p2pnet: Commercial p2p companies such as MashBoxx hope they’ll be able to bridge the gap between ‘consumers’ (as opposed to ‘customers’) and the labels and movie companies. Do you think they’ll succeed?

von Lohmann: We’ll have to wait and see. As a team of Microsoft engineers pointed out in the now-classic 2002 Darknet paper, if you’re going to compete with free, you have to offer the customer something better than what they can get for free. More DRM, restrictions, and interoperability hassles are not the answer. We’ll see what MashBoxx and Snocap will be allowed to offer by the record labels.

p2pnet: Should the cartels be allowed to have the kind of presence and influence that they do in schools and universities?

von Lohmann: I think it’s a great idea to educate younger people about copyright and the difficult policy issues at stake in the debates. Of course, that’s not what the entertainment industries have in mind when they stress “education.” Instead, they want kids to be told, at the youngest possible age, that copying is “stealing.” Our copyright laws have never been that simple, nor the issues so black and white. I would be thrilled if our high school and college students started thinking critically about copyright laws, how they are made, what purposes they serve, and whether they are currently set at the right level. I’m absolutely confident that, in an honest debate about copyright law, students will almost unanimously side with the fans against entertainment companies.

p2pnet: And lastly, do you have anything you’d like to say to anyone who reads this?

von Lohmann: If you care about these issues, please consider joining EFF. We are a member-supported nonprofit. Without the annual contributions of our members, our work would not be possible. So if you think the fans deserve more of a voice against the big media companies, please join!

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First they ignore you, then they laugh at you, then they fight you, then you win

- Mohandas Gandhi

This entry was posted on Saturday, September 10th, 2005 at 2:40 pm and is filed under Interviews. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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