Date: Tue, 7 Jun 2005 16:16:09 -0400
From: CDT Info <info@...>
To: policy-posts@...
Subject: Policy Post 11.14: CDT Proposes Balanced Framework for Online
Copyright Protection

CDT Policy Post Volume 11, Number 14, June 7, 2005

A Briefing On Public Policy Issues Affecting Civil Liberties Online
From
The Center For Democracy And Technology

1. CDT Proposes Balanced Framework for Online Copyright Protection,
Consistent with Internet Values

2. The Risks of Failing to Craft Balanced Solutions

3. A Balanced Approach To Address the Piracy Problem

4. Near-Term Spotlight on Broadcast Flag, Grokster Decision

------------------------------

1. CDT Proposes Balanced Framework for Online Copyright Protection,
Consistent with Internet Values

The ongoing debate about the legal and technical means to protect
copyright in the digital age has significant long-term implications
for the future of the Internet. CDT today released a paper that
proposes a general framework for addressing the problem of online
copyright infringement in a manner that reflects the needs of
creators, the interests of consumers, and the open architecture of
the Internet. CDT plans to use this framework as the basis for an
ongoing dialog with affected stakeholders.

CDT's paper argues that the Internet and digital technologies promise
to greatly expand the "marketplace of ideas." They enable the
delivery of new voice, video, and data content online to millions of
Internet users worldwide. They also offer new and transformative
uses of that content, which will promote expression, civic discourse,
and economic opportunity.

Unfortunately, the technologies that can locate, deliver, and
transform content are also being used for massive infringement of
copyright. While some have questioned the extent of the commercial
impact, CDT believes that widespread infringement is a real problem.
Moreover, in the absence of any sound strategy to help combat piracy,
the likely result is responses, including government action, that run
counter to the open and decentralized nature of the Internet and
could stifle innovation. Thus, while the digital copyright debate
often has been contentious and shrill, CDT's paper argues that there
is a strong shared interest in finding reasonable solutions to reduce
piracy in ways that are consistent with Internet values.

Debate over digital copyright issues is likely to heat up after the
Supreme Court - probably later this month - releases a decision in
the MGM v. Grokster case concerning peer-to-peer services. CDT's
paper is designed to help frame this post-Grokster debate.

The CDT paper, Protecting Copyright and Internet Values, is available
at http://www.cdt.org/copyright/20050607framing.pdf

CDT's March 2005 Policy Post on the Grokster case is available at
http://www.cdt.org/publications/policyposts/2005/8

The Amicus Brief of CDT, DiMA, ITAA, and NetCoalition in the Grokster
case is available at: http://www.cdt.org/copyright/20050124cdtdima.pdf

------------------------------

2. The Risks of Failing to Craft Balanced Solutions

CDT believes that stakeholders and policymakers risk several adverse
outcomes if they fail to craft balanced solutions to the problem of
widespread Internet piracy.

First, massive infringement may continue undeterred, chilling the
development of valuable and expensive-to-create content.

Second, the government may respond to the piracy problem in ways that
are in direct conflict with the innovation and openness that makes
the Internet and other digital communications media so valuable. For
example, government could seek to fight infringement through the
imposition of burdensome technology mandates or by imposing broad
liability on intermediaries or equipment makers - any of which could
severely chill innovation and limit the choices available to
consumers. Another possibility would be the imposition of blocking
or filtering mandates on Internet service providers - for the first
time turning ISPs into government gatekeepers responsible for what
their customers do online.

Third, copyright holders may seek to limit content delivery to closed
networks or consumer electronics boxes that do not connect to the
Internet. This would ignore the demand for access to content as part
of computer users' increasingly integrated, multi-media, and creative
experience. It also could have the practical effect of actually
fueling piracy by leaving peer-to-peer networks as the only way for
consumers to get valued content on their computers.

CDT believes that content creators, technology companies, and
consumers all have a strong shared interest in avoiding these
outcomes.

------------------------------

3. A Balanced Approach To Address the Piracy Problem

CDT's paper argues that there is a path towards a balanced set of
solutions to the piracy issue. The solutions will not eliminate
piracy completely - likely an impossible task. Rather, the goal
should be to make infringement unattractive, risky, and rare.

The solutions CDT envisions are based on a carrot-and-stick approach:
distributing digital content in ways that will attract paying
customers, while making infringement unenticing and demonstrating
that bad activity will be punished. CDT's suggested approach has
three prongs.

- Punishing bad actors, whether individual infringers or companies
like Grokster that profit by actively encouraging infringement (but
without seeking to control technologies). CDT believes that making
infringement a dangerous activity that users recognize as illegal
will encourage the vast majority of law-abiding citizens to choose
lawful services. Similarly, severe but carefully targeted penalties
against companies that intentionally encourage infringement or
deceive consumers about what activities are lawful can deter bad
business behavior without chilling innovation.

- Encouraging a marketplace of content-protective and
consumer-friendly digital rights management ("DRM") tools to allow
the deployment of new models for digital distribution of content.
Apple's iTunes, the Napster subscription service, and other digital
media offerings show how new systems can deliver content without
inflexible technology mandates or regulatory restrictions. The
policy goal should be the development of a robust content delivery
market in which consumers have multiple choices, sufficient
information, and in which issues relating to public affairs content
and privacy are fairly addressed.

- Better public education by trusted voices, including speaking out
against bad actors, to teach consumers that infringement is wrong and
that illegal file-sharing is dangerous, unethical, and harmful to
artists and creators. Reaching young consumers is particularly
important. Consumers also need information about DRM, so they can
make informed choices and ensure a well-functioning DRM marketplace.

CDT's paper goes on to list some of the specific steps that CDT has
taken and plans to take, consistent with the general approach
outlined above, to help make progress in the digital copyright debate.

------------------------------

4. Near-Term Spotlight on Broadcast Flag, Grokster Decision

In the near term, two specific issues are likely to refocus the
attention of policymakers on the digital copyright questions
discussed in CDT's paper: the "broadcast flag" and the Supreme
Court's Grokster decision.

Last month, the U.S. Court of Appeals for the D.C. Circuit handed
down a ruling overturning the Federal Communication Commission's
controversial "broadcast flag" rules. The rules would have required
that televisions, computers, and all other devices handling broadcast
digital television programs obey certain content protection standards
starting in July 2005. In the wake of the court's decision, content
companies and some consumer electronics manufacturers are asking
Congress to reinstate the flag rules through legislation.

For background on the broadcast flag, see the CDT Broadcast Flag
Public Interest Primer:
http://www.cdt.org/copyright/031216broadcastflag.pdf

A Supreme Court decision in MGM v. Grokster is also expected shortly.
In this case, content companies seek to hold peer-to-peer software
developers liable for the widespread use of their products for
illegal copying. The case raises the fundamental question of when one
party can be held responsible for infringement by another ("secondary
liability"), and will have major implications for developers and
users of new speech-enabling technologies online. Regardless of how
the Court rules, a vigorous policy debate is expected following the
decision.

------------------------------

Detailed information about online civil liberties issues may be found
at http://www.cdt.org/.

This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/11/14 .

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Policy Post 11.14 Copyright 2005 Center for Democracy and Technology

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