The CDT takes on infringement [LWN.net]

The Center for Democracy & Technology has long been "working for democratic values in a digital age." CDT has taken on many issues, including encryption, freedom of speech, privacy, and more. So the new copyright policy paper [PDF] from CDT seemed worth a look. Unfortunately, the CDT appears to have lost track of some important goals in its desire to compromise.

The stated goal of the paper is:

... to outline a general framework for protecting copyright in a manner that is consistent with the open architecture of the Internet and with the interests of creators, consumers, and technology innovators.

Most of us, probably, can agree with the goal of "protecting copyright." The whole structure of free software licensing, after all, is based on copyright law. Without copyright, there could be no General Public License. Free software could still exist in such a world, but the rules would be different.

So how do we "protect copyright"? The CDT offers a three-pronged approach, the first of which is "punishing bad actors." The authors, it seems, are enthusiastic supporters of actions like mass lawsuits against file traders. Also big on their list is "secondary liability" for people who encourage file sharing - Grokster, for example. There is a token mention of how secondary liability should only target "bad activity" without "chilling the development of new technologies or the provision of online services," but no discussion of how the two can be separated. There is no mention of any situation where "secondary liability" has gone too far, leaving the reader with the impression that the CDT is entirely happy with the enforcement activities which have happened to this point.

Well, not entirely happy; the CDT would like to see more laws passed to get the Federal government more heavily involved in copyright enforcement. They would also like to see:

Cooperation between content owners and ISPs on a voluntary basis to find practical and appropriate ways to pass crucial information on to specific individuals while protecting their anonymity (and while steering well clear of putting ISPs in the role of tracking and policing subscribers' behavior) could be a positive step.

How this "positive step" would actually work is not discussed.

The core of the CDT paper, however, relates to the creation of "consumer-friendly" DRM schemes. Given a suitable "open market," the CDT believes that DRM can "enable" the flow of digital content we all hunger for in our souls without making life overly frustrating for us "consumers." The CDT does argue against specific mandates by government (but the group appears to favor broadcast flag regulations which provide "reasonable balance") and in favor of preserving consumer privacy. But, as a whole, DRM schemes are clearly seen as a good thing.

The final step advocated by the CDT is "public education." The paper tells us:

It is particularly important to send the message to younger consumers that infringement is unlawful and unethical. This effort cannot be pursued by industry alone...

"Younger consumers" (and older ones too) could certainly benefit from a better understanding of copyright law. It is probably true that educating these "consumers" about fair use, ever-lengthening copyright periods, the starvation of the public domain, etc. is not something that we can expect industry to accomplish on its own. But, of course, the CDT shows no particular interest in helping industry out on that score; it's mostly interested in the infringement problem.

Remember that the CDT is supposed to be an advocate for democracy, civil rights, and the consumer. But this group has, perhaps out of fear of even worse alternatives, entirely given in to the demands of the entertainment industry in the name of making content available to "consumers." The CDT has sold out entirely on this issue.

There are numerous things the CDT could have addressed, were it truly interested in the wider debate. Perhaps a little mention of the DMCA would have been nice; seeing programmers arrested in the defense of DRM schemes might just have a "chilling effect" or two. An examination of just how well the market has done in producing "consumer-friendly" DRM so far might have been in order. And it might have been nice to see at least a passing mention of the public domain, the source of many of the ideas which have been incorporated into current, eternally-copyrighted content.

But there are two larger failures here. The first is the firm distinction between "producers" and "industry" on one side, and "consumers" on the other. We are, it seems, supposed to go off, be good little consumers, and not worry our pretty little heads about how the "producers," out there somewhere, will protect their content in a "friendly" manner. When your editor was young, it was often noted that freedom of the press is great if you happen to own a press. Now that your editor is no longer so young, we all own presses. We are no longer to be called "consumers," told to enjoy the products from "industry" in some business-friendly way. We, too, are producers, and we have a stake in this game. The CDT has not yet figured that out.

One of the most dramatic ways in which we are producers can be seen in the free software community. LWN readers are not "consumers" of Linux; they are its producers. And we have produced a world where many copyright infringement issues are no longer relevant. But, to the CDT, we do not exist. Any balanced look at DRM must include this fact: free software and DRM are absolutely incompatible with each other. When "consumers" actually have control over their computers (and DRM-capable devices are computers), they need not accept externally-imposed restrictions on what those computers can do. The CDT's "consumer-friendly" DRM vision, almost by definition, cannot include free software.

Certainly, we wish to live in a world where producers can make a living from their work. We are all producers now, remember? Besides, how else will we ever get to see the final three Star Wars movies we were promised back in the 1970's? The CDT's answer to this problem, however, does not describe a world that many of us would want to live in. Some of us, evidently, have a different idea of what constitutes "democratic values."

to post comments

The CDT takes on infringement

Posted Jun 9, 2005 10:11 UTC (Thu) by ekj (guest, #1524) [Link] (2 responses)

Most of us, probably, can agree with the goal of "protecting copyright."

I highly doubt it.

The goal is not, and never was, "protecting copyright". The goal also is not, and never was rewarding creators.

These are examples of trying to skew reality made by RIAA, MPAA et.al.

In reality the goal (as stated in the constitution) is to stimulate the creation of new works, copyright is just one way of acomplishing that. To the extent it does not contribute to this goal it is not even constitutional.

Copyright is in some situations an acceptable means for achieving a certain goal. But it, itself, is obviously not the goal. Indeed it is more akin to a neccesary evil.

Public Domain Enhancement Act

Posted Jun 11, 2005 1:29 UTC (Sat) by nealmcb (guest, #20740) [Link] (1 responses)

"In reality the goal (as stated in the constitution) is to stimulate the creation of new works, copyright is just one way of acomplishing that. To the extent it does not contribute to this goal it is not even constitutional."

Very well stated. As US Supreme Court Justice Sandra Day O'Connor wrote:

http://www.hymn-project.org/
"The primary objective of copyright is not to reward the labor of
authors, but [t]o promote the Progress of Science and useful Arts."

As LWN wrote just a few weeks ago (http://lwn.net/Articles/137250/),
this is the time to support HR 2408, the Public Domain Enhancement Act,

"This law would require that owners of copyrighted works file a registration form and pay a $1 fee to keep the copyright in force after the first 50 years. Works which, after 50 years, have been abandoned will enter the public domain."

Public Domain Enhancement Act

Posted Jun 16, 2005 13:12 UTC (Thu) by zotz (guest, #26117) [Link]

I would suggest we consider some possible modifications.

1. Copyleft works are exempt from re-registration requirements.

all the best,

drew

The CDT takes on infringement

Posted Jun 9, 2005 17:21 UTC (Thu) by rgoates (guest, #3280) [Link]

'... we all own presses. We are no longer to be called "consumers," told to enjoy the products from "industry" in some business-friendly way. We, too, are producers, and we have a stake in this game.'

Excellent point. The context for "intellectual property" in the world has been and is changing drastically. I expect a long fight against the inertia of entrenched interests that cannot/willnot understand and accept the new context.

The CDT takes on infringement

Posted Jun 9, 2005 19:44 UTC (Thu) by cdmiller (guest, #2813) [Link] (1 responses)

No big surprise. Much of the "far left" is sympathetic with or is Hollywood. With both the "right" and "left" espousing similar views on file sharing and seconday liability, that leaves Libertarian viewpoints as the sane stance on the issue. The reality today is both the left and right are the same, follow the money trail, and ignore the original intent and language of Copyright, the Bill of Rights, etc..

The CDT takes on infringement

Posted Jun 13, 2005 13:14 UTC (Mon) by wilck (guest, #29844) [Link]

Much of the "far left" is sympathetic with or is Hollywood.

What sort of "far left" might that be? The U.S. is really a strange country these days.

understanding of law not the problem

Posted Jun 9, 2005 21:45 UTC (Thu) by giraffedata (guest, #1954) [Link] (1 responses)

It is particularly important to send the message to younger consumers that infringement is unlawful and unethical. This effort cannot be pursued by industry alone...
"Younger consumers" (and older ones too) could certainly benefit from a better understanding of copyright law.

While a better understanding of copyright law might be good, it wouldn't help the problem referred to here.

This is clearly a reference to the high incidence of copyright infringement of the sort where kids freely copy songs and movies. That isn't because people don't know it's unlawful. Teaching them that it is wouldn't help. It's because they don't perceive it as unethical.

Like many 7 year olds, when I was that age I occasionally shoplifted candy bars. I knew it was illegal. I just didn't have a sense that it was unethical. In time, I developed a sense that taking someone else's candy bar, even when the someone was a faceless group of stockholders with lots of money, was wrong. Developing that sense about violating a copyright is a lot harder.

If there's going to be any educating going on, it would be better to teach people about the economics of intellectual property than about copyright law.

understanding of ethics not the problem

Posted Jun 13, 2005 13:22 UTC (Mon) by wilck (guest, #29844) [Link]

I don't think the DRM promoters care much about ethics. What they want to teach the "young consumers" is: If you copy our stuff you'll go to jail.

It's like the speed limit on highways - most people obey it because they don't want to be caught, not because they think driving fast is unethical.

Hunger in our souls?

Posted Jun 16, 2005 9:50 UTC (Thu) by Wol (subscriber, #4433) [Link]

Given a suitable "open market," the CDT believes that DRM can "enable" the flow of digital content we all hunger for in our souls without making life overly frustrating for us "consumers."

HOW DARE YOU *ASSUME* ON MY BEHALF. You really *do* make an "ass of u and me". Actually, it's not clear whether the CDT really does assume or if LWT is putting words in their mouths, but is it really true at all?

In my house, the ONLY person, in the normal course of events, who turns the TV on is my wife. Indeed, when it's on it often drives me out of the room - for most of my life I've never had a tv, I've never missed it, and if it weren't for my family, I'd junk the ones we've got tomorrow.

Likewise, the speakers on my computer are almost always turned off. The main reason for having a soundcard is so my daughter can *compose* with it.

It's true of a fair bit of my family, and it's probably true of a lot of other people, but already my (legally purchased) CD collection is far too large for me to listen to, and anyway, I prefer free-to-air talk-radio. About 5% of the UK doesn't own a TV - almost all from choice. Add in the people who never switch it on and we could probably double that number. That's a sizeable minority who DON'T hanker for all this DRM crap...

Cheers,
Wol