I’ve been away for a while, but I’m back… and dammit, I’ve got something to say, so bear with me.

I sat down the other evening for dinner while on vacation for Mexico, and apparently, the ocean breezes and margaritas weren’t enough to keep me from talking shop. I was sitting at a table with someone affiliated with the EFF (not sure of his/her capacity), and as these things happen, we started to discuss P2P, Copyright law, Major Labels, blah, blah, blah.

The exchange wasn’t anything very special, and it quickly descended into name calling (he/she called me ‘George Bush’ – which WAS insulting, but at the same time, it was quite confusing, since I’m not sure what they were getting at). It was the aftermath of the ‘discussion’ that got me thinking, but in order to get to my conclusions, I must describe the ‘discussion’.

I am going to refer to this person as ‘he/she’, as I do not even wish to reveal gender for the sake of protecting identity. I’m fuzzy on how we got on the topic, but at some point, the following question was posed: “Is it illegal to download from a P2P network”. Now, to my discredit, I did two things wrong:

1. I assumed that were we were going to discuss the question at hand without bringing the kitchen sink of related philosophies and belief systems to the party… wrong!

2. I did not narrow the question to state “is it illegal to download copyrighted content without authorization” – although, I kind of thought that’s what we were talking about in the first place – I mean, if we are talking about trading word documents or something, then there is nothing to talk about, right?

Well, so my answer was “yes” – and that’s when all hell broke loose. A variety of reasons why I was wrong were in the range of (these will look very familiar):

1. the major labels have a broken business model and are stifling innovation

2. allowing statutory crack-downs on technology (P2P) will stifle innovation

3. “most” of the files shared are done so with the consent of the rightsholders (needless to say, I had to chuckle when I heard this one)

4. Most rights-holders (basically everyone except the major labels) actually WANT their content traded for free.

5. It’s a first amendment issue (again, not sure how this directly applies, but I have heard it before)

6. She had been drinking Diet Coke most of the evening while… well, I had not. (I take issue with this, as I firmly believe that the correct position, even if stated with slightly slurred speech… is still correct)

While I agree to some degree with a few of those positions (one and two) none of those reasons have anything to do with whether or not it is legal (or moral for that matter) to download unauthorized copyrighted content. Now, with regards to #3 and #4 … well, I’m not sure where this comes from, but I’m pretty sure that at IODA, we just might have a better idea of what actual rights-holders who make a living off of this stuff think (who, by the way, are all Independent labels… the very people I think he/she thinks she’s speaking for). Well, I can’t speak for them all either, but I do have conversations with them about this stuff, and I can tell you that they would like to get paid. (We actually represent an independent Hip-Hop label called “Fu** You, Pay Me”… no kidding). Now, he/she might be confused by another position that folks in the independent world commonly take, and that is that they embrace a P2P as a great (and free) promotional tool – and this is true; however, they also have no control over it, which I can tell you they do NOT like. His/her attitude might also be influenced by the fact that independent labels tend to worry less about the situation. Why? They worry less because they are small, busy, they can’t control it anyway, and they just concentrate on what they do best… sign talent and market music. Does it mean they wouldn’t rather be paid? No.

So... the ‘George Bush’ comment. Again, I’m not really sure what that was all about, but in hindsight, I think I get it, and it leads into my larger point on this issue. The fact that I would disagree with any viewpoint associated with their particular ‘belief system package’ on these broad issues (even though were discussing a much smaller slice of these issues) precludes me from having any common ground, so therefore, I must be anti-technology, anti-innovation, anti-first amendment, and … I dunno, anti-Kyoto?

My knowledge of the industry and the subtleties of the market were not important to this person, because for them, it has become a quasi-religion and a mantra: P2P good, content industry bad, technology smart, not-technology dumb. Forget separating the issues into their logical components… it’s all or nothing, baby. You are either 21st Century Digital Boy (shout out to Bad Religion) or you are crusty old-school record exec with crumbling mansion and aging trophy wife. Never mind that most of the people who support the “down with copyright law” position would probably be perpetually out of a job if their wishes came true, since there would be no intellectual property industry to support them and their enlightened views.

Thanks for following me all the way down here where I make my point, and my point is that this whole music/P2P discussion is starting to take on a very strange “pro-choice/pro-life” vibe that, in my opinion, is totally out of place (picketers in from of the courthouse at Grokster hearing?). It is manifesting itself into a “left” and “right” camp, and it appears that you are not allowed to straddle the platforms with nuanced positions, which for this issue, is unhealthy, unproductive, and reactionary.

It used to be that people would ask my advice on what I thought about events in the digital music arena given my background as not only an industry participant since ’96, but also someone who HAS a rights-holder stake (i.e. an artist). Now, it just doesn’t matter what I do for a living or what my experience is, because my position is going to be a loaded statement. My position on these issues have always been somewhat pragmatic (to check for consistency, please listen to my old radio shows from the old Napster days on Wired News) and “non-denominational”. Let me break my views down, categorized as either “popular” (21st century digital boy) or “unpopular” (old-school record exec)

• Popular: I give props to the original Napster for proving a very cool concept and new paradigm and for giving the industry the wake-up call it so dearly deserved

• Unpopular: I also think that creating a generation of kids who think music is always free was not really a good thing.

• Unpopular: Businesses like Grokster, eDonkey, and KaZaa would definitely NOT exist without the illegal trading of copyrighted material on their networks. That IS how they generate audience… pure and simple.

• Popular: The major label’s business model is broken and they fight the technology industry and innovation

• Unpopular: That’s got nothing to do with the question of whether or not downloading unauthorized copyrighted music is legally and morally wrong (ding, ding… it is!).

• Unpopular: Is it as wrong as shoplifting a CD? In damage terms, no, because there isn’t the extra cost to the retail industry like there is with shoplifting, and label isn’t actually losing a physical product… but its close!

• Unpopular: Should they prosecute people? 12 year olds and dead people? No. Uber-nerds that run super-nodes for geek-sport? Yes.

• Unpopular: It’s not the labels who are the real blockers to innovation and new business models - - it’s the publishing companies (not sure if this in unpopular or not… I just thing most people don’t understand the nuance)

• Popular: P2P is a great decentralized environment that has huge possibilities, especially in reducing bandwidth demands and in the community and discovery aspects.

• Popular: Wanna support artists? Pay for a ticket, go to their show, and buy a CD and a t-shirt there. They get more money from those transactions than anything else.

• Popular: DRM sucks

• Unpopular: Major labels are not “evil”… they are businesses, and the people who I have met and worked with are not luddites with hair pieces.

• Popular: They may not be evil, but jeez… they put out some really horrible music.

• Popular: Yes, there does need to better way of clearing rights and digital does bring a new promise to the long tail (what do I do all day!)…

• Unpopular: …but opening the flood gates and forcing content owners via mob rule into models that they don’t want to participate in because it doesn’t make sense for their business (free is not a business model) is not the way to do it.

I could go on and on…but you get my drift. It’s not black or white, right or left. The fact that the P2P /music issue has become a lightning rod might be good for the greater copyright reform movement… I don’t know – that’s for someone else to decide, but I starting to think that it’s not good for moving things forward.

Here’s a little quote from the EFF website:
“And future developments in technology will enable us to access information and communicate with others in even more powerful ways. But governments and corporate interests worldwide are trying to prevent us from communicating freely through new technologies, just as when those in positions of power controlled the production and distribution of -- or even burned -- books they did not want people to read in the Middle Ages.”

I have nothing against the EFF, and in fact, I admire them and totally agree with a lot of the work they are doing (I do work in the technology industry, remember?), but you see, its that kind of language that really just takes this thing to a whole weird level, and it smacks of conspiracy theories and digital hippie colonies where technology feeds the poor, makes us all live to be 150, and stops pollution. Anybody remember “The Long Boom” issue of Wired at the height of the bubble? Well, I do, because I worked there, and after the bubble burst, some clever (and probably slightly disgruntled) employee redesigned the cover and title to “The Long Bong”.

Call me a simpleton, but can we address the issues with regards to P2P and the digital music marketplace in a logical, strategic, and orderly fashion? Can we separate issues that don’t really affect each other? Can we all put our heads together and move the industry forward and help good content make money? We can? Dude… hella good news, rad. You may flame away.