For a while I have been arguing that the debate should not be framed in the "innovator versus freeloader" view but in a "constitutional rights and individual property rights versus expansive intellectual property" view.
Most Americans do not accept the idea that you have a right to give away a copy of a song to anyone who wants it. While we hear constantly about those numbers that "40% of internet users said they saw nothing wrong with pirating music" we cannot go by that. Americans are just like any other people; when we think we can get away with something that doesn't seem to directly hurt someone we do it. Downloading bootlegs doesn't seem to hurt anyone, but it can.
If I had bootlegged the entire new Android Lust album instead of buying it on iTunes I would have not sent the chick behind AL any money. iTunes allowed me to send her maybe $2 for the album which I paid $10, probably a good $5 less than what I would have paid for a CD copy.
We need to stress to the government that iTunes, not more legislation, is the key to getting the system working. We need to show them that bands like Metallica refuse to do their part because they want an all or nothing. Buy 20-30 songs on iTunes and you give Apple more ammo to counter the claims that piracy has no solution. They can just shrug in front of Congress and say "it's not our side, the legal downloading side, that has dropped the ball. They refuse to let people buy their tracks one by one because they want them to buy them all or nothing."
There will always be politicians who will rail against piracy and ignore iTunes and other legal services, but many politicians will just look at these industries and say "the mechanisms are in place, why aren't you being a team player, why are you coming to us for help when there are companies dying to make the market work for you?" Politicans tend to be lazy, just look at how many Senate votes that John Kerry has missed in the past 12 years. Something like 1000 or more a year according to Fox News.
We can appeal to the public by pointing out the supremacy of the 1st amendment over Article I, Section 8, Clause 3. The first amendment was ratified later so it supercedes everything in the original constitution, just as all parts of the constitution must be read in the context of the Bill of Rights.
We should also point out how anti-backup provisions and attitudes like Jack Valenti's "if you want a backup, buy another copy" are against common sense, American tradition and capitalist principles. I have yet to read of a prominent capitalist theorist who would support the DMCA. Rand, Ricardo, Hayek and Smith are probably spinning in their graves over the DMCA and similar "seller protection legislation."
The hollywood position is built on pure, unprincipled greed. Defeating it only means that we need to be consistant and show the public where the law is going to start biting them in the ass if they don't care now.