Interview: EFF Senior Counsel Fred von Lohmann

Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation (EFF) specializing in intellectual property issues. In that role, he has represented programmers, technology innovators, and individuals in litigation against every major record label, movie studio, and television network (as well as several cable TV networks and music publishers) in the United States. In addition to litigation, he is involved in EFF's efforts to educate policy-makers regarding the proper balance between intellectual property protection and the public interest in fair use, free expression, and innovation. Before joining EFF, Fred was a visiting researcher with the Berkeley Center for Law and Technology, where his research focused on the impact of peer-to-peer technologies on the future of copyright. Prior to his research fellowship, Fred was an attorney with the international law firm of Morrison & Foerster LLP. He received both his undergraduate and law degrees from Stanford University.

1. How are copyright owners, often represented by the MPAA (Motion Picture Association of America) and RIAA (Recording Industry Association of America), attempting to change the landscape of Copyright Law?

The most critical way is to the existing rules of secondary liability that were established by the Supreme Court in the Betamax case (Sony vs. Universal). All technology companies depend on existing rules of liability that protects them from how consumers use their products.

2. What is the current legality of file swapping?

That's not entirely clear, but the main issue in most of the cases is: "When are technology companies liable for their end users?"

3. What was your take on the Napster case?

I don't think the Napster case will be remembered as a file sharing case. Rather, the most relevant aspect was the general question it raised concerning the Betamax ruling and its application to technology. The test in Betamax asks: "Is there a legitimate use for this technology?" If Yes, the test is met!

4. Do you believe that copyright infringement occurs on p2p ("peer to peer") file sharing?

Yes, but giving up legitimate uses of technology in the process is a bad bargain. Consider crowbars, which are used by burglars, but which have legitimate uses. Why should consumers be denied using them just because they're used for burglary?

5. Is the fight over digital copyright clearly Silicon Valley v. Hollywood?

Yes, definitely. And the battle lines have been drawn ever since the movie companies sued Sony for making the Betamax.

6. You and the EFF have been involved in some of the most important legal battles of our times. Do you see it this way?

The battle between technology and copyright owners is huge. What I do will not affect the outcome of this fight. The work done by engineers in technology companies is far more important. The important role that we play is that it's critical to minimize collateral damage to rights -- like privacy -- that we care about. It's about saving some rights from being trampled on in the dance of the elephants.

7. Can you briefly explain the Fair Use defense as it applies to file sharing?

No, [laughter] I don't think anyone can briefly describe Fair Use. There are lots of ways to describe it. Basically, Fair Use is a safety valve that allows courts to say, "Although it's an infringement, we'll let it go because it doesn't harm the market very much." Making a copy of a CD is technically an infringement, but if you use it in your car or at work, it's ok. To be fair to the other side, the fair use defense doesn't excuse everything. But it is one way that allows the restrictive principles of copyright law to comport with First Amendment rights.

8. What are your thoughts on the Digital Millennium Copyright Act (DMCA)?

The DMCA was a fundamental rewrite of Copyright law. The EFF is concerned that DMCA will supplant copyright altogether. Unlike traditional Copyright law, which provides exceptions for fair use, educational use, etc., there are very few exceptions in the DMCA. If you have to choose between the two -- traditional Copyright law and the DMCA -- which would you choose? Obviously, copyright owners want the DMCA.

Congress didn't understand just how unprecedented a shift in Copyright law was represented in that statute. Copyright law is made up of two components: 1) Intellectual Property law that grants exclusive rights to copyright owners; and 2) Consumer Protection law that preserves rights for the public, like fair use. The balance between these two components was traditionally managed by Congress. Now, the DMCA suddenly puts the power of balancing the interests unilaterally in the hands of copyright owners. In addition, Contract law is supplanting Congress' control of the balance, especially in shrink-wrap licensure, where one waives his fair use, and first sale rights.

9. What are the worst and best-case scenarios with respect to the future of Copyright law?

The worst is that we'll continue down the copyright owners' path of the erosion of traditional copyright consumer protections. The best-case scenario is that we'll arrive at a better way to deal with current problems, such as compulsory licensure.

10. It was only a matter of time before RIAA went after individual users. Is there any defense to the students named in the latest charges of operating p2p networks on university systems?

Yes, there is a defense, and as a copyright lawyer, I believe the most important message here is to ask, "Is this lawsuit a realistic solution to p2p? Will this slow down p2p, or sufficiently compensate the record companies?" The answer is No. I think the damages the labels are seeking are something like three times their total yearly revenues. Do you think they'll ever collect this from four students? I don't see the rationale for ruining four students' lives.

11. How do you think the battles between the music industry and technology will play out?

For over a hundred years, copyright holders have fought new technologies, but in the end, copyright companies have actually benefited from technological changes. Ultimately, as history has shown, the entire pie will be bigger, but the current players on top may not be the same in the new economy. This happened with player pianos, where the big copyright owners were primarily publishers of sheet music.

Like copyright holders in the past, the record labels are throwing as many lawyers at the problem as possible. I think this strategy of spending billions of dollars in legal fees is taking them on a course of extinction.

12. Why do people lump the RIAA in with the MPAA?

Well, they are distinct industries, but when it comes to copyright law, they often speak with one voice. For example, in the case I'm involved with, the Morpheus case (MGM v. Grokster), both the MPAA and RIAA are plaintiffs and they've taken the exact same stance on the issues. The MPAA itself has two distinct sides: Publishers and Songwriters, and often these two are at odds. One thing I will say is that they are much better than the technology companies at presenting a unified lobbying front in Washington D.C.

13. Supposedly, Apple Computer will purchase Universal Music Co. What could happen if recoding companies were acquired by technology companies?

That seems to be the hot rumor. It would be an interesting development. Currently, the assets of record companies are under terrible management. Apple is trying to launch an online music service, and it will be interesting to see if they can actually reinvent the way music is licensed online. I do think that if Apple is successful in setting up a new music service model, they will be sued by the artists because the artists are not ready for such a dramatic shift in business arrangements.

14. What do you think about compulsory licenses?

It is really time to start talking about this as a solution to current problems. We've done it for cable TV, player pianos, webcasting. Let's do it for p2p networks. I don't prefer one system over another, and more analysis needs to be done. One possibility that a few professors have discussed is a bandwidth levy, which does a Nielsen-like survey of the amount of downloading occurring on a particular network, then puts the collected money in a pot for distribution to the artists. Anyone who looks at the recording industry knows that artists are not getting paid. A compulsory licensing system can be a way of giving more money directly to them.

15. What do you make of Creative Commons licensing?

It's a great initiative. Copyright law has been on an expanding path. It used to be an opt-in system, where you had to put up notices and disclaimers in order to invoke protection. Today, however, it's an opt-out system. Every time you write an email or a grocery list, you automatically receive copyright protection. Companies like Creative Comomons have recognized that a lot of creators don't want or need the same bundle of rights that Disney wants. So, this is a way to allow others to use protected works without invoking the full protections and penalties of Copyright law.