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January 27, 2005

Smearing Gigi

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It's clear that the Progress & Freedom Foundation (PFF) dearly hoped to make more of an impact on the debate over the Induce Act. VP Patrick Ross is showing some awfully bitter grapes in this embarrassingly personal article that's supposed to be about policy differences but instead reads as a poorly veiled attempt to smear Public Knowledge President Gigi Sohn. For example, Ross faults Gigi for claiming to speak for the consumer in copyright policy negotiations because he can't remember the last time he "voted for a 'consumer representative.'" Presumably, we're meant to understand that it's a ridiculous concept for the consumer to have a voice in such matters. That wacky Gigi.

For background on PFF's policy views, check out Larry Lessig's post from back in September, responding to the organization's push to replace the Betamax doctrine with a six-factor test:

I can well understand New Dealers racing to craft multifactored tests to regulate innovation. But I thought the whole point of the conservative (economic) movement was to teach us how harmful such regulation was to innovation and growth. Any test that cannot be applied on summary judgment guarantees that federal judges will be forced into a complex balancing to decide which innovation should be allowed. And thus, any industry threatened with competition can then use the courts to extort from these new competitors payment before they are permitted to compete.

This is a group that claims to represent the middle ground?

Update: Siva weighs in: "In a better world, our elected representatives would speak for consumers. But they don't, even though we elect them. They are bought and sold, unlike Gigi. That's why we need Gigi and other consumer advocates. They sacrifice their time and go underpaid for their entire lives so they can sleep soundly at night, knowing they made the world a little bit better. What does Ross think is going on here?

Ross says Gigi does not speak for consumers who want to pay for online content. She most certainly does. I am one of those consumers. I am proud to have Gigi and Public Knowledge speak for me. And I have had no problem paying for content. Has anyone? Is this a frequent complaint? Nobody wants our money?"

Update #2: Joe Gratz: "Ross seems upset that Sohn calls herself a 'consumer advocate' while failing to represent the views of consumers who enjoy paying monopoly rents.

'Wait!,' Ross seems to be saying, 'I'm a consumer, and I think the big content companies who pay my salary should have complete control over the media they release and the technologies used to enjoy those media. She's not representing my view, ergo she is a sham consumer advocate.'"

Comments (8) + TrackBacks (0) | Category: Laws and Regulations


1. Brad Hutchings on January 27, 2005 4:29 PM writes...

Oh come on Donna...

Presumably, we're meant to understand that it's a ridiculous concept for the consumer to have a voice in such matters.

No, it's ridiculous for anyone, Gigi included, to lay claim to speaking for the all powerful (wow, I couldn't hyphenate that due to blog censorship), monolithic, and mythical consumer. For example, I am a "consumer" of Apple iTunes. It pisses me off to no end that other "consumers" are too cheap to pony up a few bucks a week for music they enjoy, instead leaching it from P2P networks. It pisses me off that these people obviously think I am the chump for putting money into the system when they don't. They are kinda like people who cut in line or cut you off on the freeway. I can't find a thing that Gigi argues for that addresses my concern. Fortunately, our political discourse doesn't need Ross to point out the turds floating in the punchbowl. When someone says they are "pro-consumer" most everyone discounts it (or elevates it as the case may be) to wanting something for free.

Anyway, if you guys get your knickers in a knot over this "harsh" of personal attack, you won't last too long in the political arena. Good riddance.

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2. Jason Schultz on January 27, 2005 5:33 PM writes...

It's worthy to note that PFF filed amicus briefs both on the cert and merits of the Grokster case in support of the content industry, in which they claim to speak for all consumers of music and movies in the world. I don't recall anyone electing Ross or PFF to speak for consumers either, so his critique of Gigi is, at best, hypocritical.

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3. odograph on January 27, 2005 6:02 PM writes...

I sent a little money to Public Knowledge last year, and even after reading Patrick Ross' article I'm still glad I did.

I don't download illegal content, but I use bittorrent for legal things. I appreciate the opportunities for P2P of all kinds of legal things - perhaps even our history (as it comes on line).

I think "Induce" should be killed outright, because it too much of a threat to those uses (too much of a camel in the tent).

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4. Ronald D. Coleman on January 27, 2005 10:58 PM writes...

Representation is as representation does. If Gigi or PFF can enunciate an argument that, followed to its logical conclusion, would benefit "consumers," then either of them is naturally as free to argue in their name as is anyone else. There is a "public interest" prong to most or all of legal arguments, and each side will inevitably present a welfare analysis of some kind. Free riding is bad in the long run, producing some Pareto-suboptimal results. Or it doesn't. That's what why we have the discussion.

Ultimately the merits are the merits and, to some extent, policy is made -- whether by legislators (who, incidentally, can be just as guilty of being demagogues as they can of being bought by corporate interests), by regulators or, in the worst case, by judges who buy or don't buy it.

This "who elected you the representative of the people?" is indeed a straw man.

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5. Rad Geek on January 28, 2005 11:40 AM writes...

Brad Hutchings on folks who get their music for free over file-sharing networks: "They are kinda like people who cut in line or cut you off on the freeway."

The difference, Brad, is that people who cut in line or cut you off on the freeway are annoying because, by being jerks, they interfere with your ability to make use of a shared resource. But whether or not someone downloading an MP3 and paying only for the bandwidth is doing something wrong, what they are doing neither interferes with your ability to enjoy your own music nor endangers your safety. In fact the worst you seem to be able to say about them is this:

'For example, I am a "consumer" of Apple iTunes. It pisses me off to no end that other "consumers" are too cheap to pony up a few bucks a week for music they enjoy, instead leaching it from P2P networks.'

So other people don't put their money into the same things that you do. Good Lord what a priggish busybody you are. Haven't you got anything better to fume about?

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6. Brad Hutchings on January 28, 2005 2:27 PM writes...

Rad, it might surprise you that as thick as the outrage is in the Copyright echo chamber, over, for example, the RIAA suing 14 year olds and P2P operators, these actions get cheers from lots of small artists and publishers who can't afford to enforce their rights with a lawsuit mill.

Honestly, as a practical matter and even a marketing matter, few copyright holders are getting upset over casual copying or sharing among friends. What worries us is wholesale, anonymous, global sharing. We don't want to mandate DRM at the hardware level. We find it very frustrating that seemingly intellegent and thoughtful people like yourself and others here on Copyfight (a) will not recognize how this cuts into the commercial viability of our products, (b) maybe don't want our products to have commercial viability, (c) set up models of culpability where it's everyone else's fault (but not the one who is being sued), etc.

Rad, the "priggish busybody" slap is silly. You take one small point of my total argument (for which there is no room in a blog comment) and jump to that. Sadly, that's the typical mode of discussion here, double sadly after everyone is up in arms over "sharp personal attacks" on Gigi. But, it's apparently how Copyfighters behave, so worth a chuckle.

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7. Rad Geek on January 30, 2005 1:44 PM writes...


(1) Neither my actions nor my beliefs imply anything about those of "Copyfighters." I am a reader of Copyfight; I'm not an author here and my beliefs are actually substantially different from those of the people who are. If you want to infer something about "how Copyfighters behave" from issues you have with me, you can do so, but you can hardly expect other people to take htat seriously.

(2) I described you as a priggish busybody because that's what your comments expressed. There are lots of reasons that people might worry about the intersection of digital technology and 20th century business models for books, film, songs, etc. There may be perfectly good arguments to raise against Gigi Sohn's claims about how, e.g., the film and music industry have responded to these concerns hurts consumers. But "other people are too cheap and it makes me mad" is not among those concerns and it is not one of those arguments. You might think they're skinflints; you might think they're classless or ungrateful to the people who make the things they enjoy possible. That's fine. But why should you expect anyone else to care about the resentments you nurse on this question? And what in the world has it got to do with whether or not Gigi Sohn is right about consumers' interests? Merely pointing out that you disagree with her conclusion is not a counter-argument. And claiming that she doesn't "represent" you as a consumer isn't either. The question is whether her arguments are cogent or uncogent, not how you feel about other music consumers.

(3) In the follow-up you remark that it might surprise me that many small-time professional copyright holders cheer on the legal actions of industry behemoths. It doesn't; I'm already well aware of that (I have relatives trying to make their way in the lower end of the music business). That said, I can't imagine why you think it's relevant. The fact that someone has a small business rather than a large one is not a sign of moral superiority, and I don't see any reason to think that the legally-enforced business model of small musicians, authors, etc. would be any more in tune with consumers' interests than the legally-enforced business model of the big-time money-men who represent the bulkier end of the industry. I may like small independents a lot more than I like sanctimonious corporate money-men, but that doesn't make a bit of difference to how their use of legal coercion and technological crippling affects me.

(4) As for commercial viability: I'm well aware of how modern sharing technology poses a challenge to the commercial viability of traditional business models of copyright holders, and perhaps especially those without the legal resources to try to take up the issue through the government. The question is what one thinks should be done about it. It's not that I don't want small copyright holders' businesses to be commercially viable; it's that I don't care whether they are or not. The world does not owe you or anyone else a living, and those who today try to live as professional copyright holders have had to figure out ways to make do without rigid "intellectual property" protectionism for several thousand years of human history. If the only way to sustain the business model of the late 19th and 20th century is through escalating an already intense regime of legal coercion against consumers, then I can't see any reason not to let it die.

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8. Brad Hutchings on January 31, 2005 2:12 AM writes...

Rad. On point (2)... Let's say I write and sell commercial software. Turns out that's what I do to make a living. I offer unlockable software over the net, so people can try most of the features for free at their convenience. Really pro-consumer, doncha think? Occasionally, registration codes get posted to warez sites. I have had several potential customers write to me and ask why they should buy when they can get a warez code. The implication is: what kind of chump would I be to pay for this when I can get it for free? So, no, I am not a priggish busybody to raise that issue, which is a very serious one of perception of value that perhaps you have never considered.

On point (3)... It's pretty much the DRM battle. Copyfighters take the Cory Doctorow line that it doesn't work anyway and just hurts the honest customers. Copyright holders who employ DRM observe that adding DRM and tuning the scheme actually increases revenues. Wanna know something funny? Even though Lexmark lost their DMCA suit, the smart thing for them to do would be to continue to use DRM in their print cartridges. Sure, it pisses off the fringe, but it will protect their revenues and they can force tremendous effort to be expended to keep up with their DRM schemes, which would most certainly inhibit a competitor that wants to compete in the ink market where you need production capital, distribution, etc. Tell me this, Rad... should the government have anti-monopoly laws to prop up a competitor in such a market? Curious...

Finally to point (4). Sounds like to have a consistent philosophy you'd need to be against the minimum wage, environmental laws, government financed labor boards, collective bargaining laws, and the list goes on and on... Or does it just apply to goods which are the products of one's intellectual labor?

Oh, I forgot point (1)... As best I can figure out the intellectual thrust of the free culture and Copyfight crowds, it's that the evil music industry puts out crap like Christina Aguillara and Brittney Spears, and since it's crap and they are evil, we should all be able to get it without paying for it. I know it sounds harsh, but it's about the only short hypothesis I can come up with that predicts what the crowd will do. I would love to see the free culture crowd inbestigate and consider how creators get compensated and come up with a world view that incorporates that little detail.

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