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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

Introduction

Although highly polarized debate continues, CDT believes there is a path towards a policy convergence to match the coming technology convergence. In CDT’s view, the combination of legal protections to make infringement very unattractive and technical protections for online content offers the possibility of vibrant new markets for content delivery, consistent with the open architecture of the Internet. The VCR was viewed at first as a scourge of the movie industry, yet eventually offered a tremendous new growth opportunity for industry. Similarly, we believe that secure digital delivery has the potential to “make the pie bigger” both for content creators and for consumers.
Not good. The report already seems to assume an artificial distinction between content creators and consumers. Citizens are sometimes one, sometimes another, sometimes both. Any policy based on treating citizens solely as consumers is doomed to failure from the start.

CDT basically has a 3-part plan.

Punishing bad actors, whether individual infringers or companies like Grokster that profit by actively encouraging infringement. 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 monetary penalties against businesses that intentionally encourage infringement or deceive consumers about what activities are lawful can deter bad business behavior without chilling innovation.
Well, that sounds about as useful as the INDUCE Act. How does CDT propose the law distinguish between the bad actors and everyone else? That's the rub, isn't it? And, with regard to deceiving consumers, does CDT propose punishments for the content creators who lie and deceive citizen creators about their rights? Quite often the copyright warning labels say reproduction is forbidden, but that's not entirely true, is it? There are a number of exceptions, but you never hear the content creators note them. Isn't that deceptive?
Encouraging a marketplace of content-protective and consumer-friendly Digital Rights Management (“DRM”) tools to allow the deployment of new models for accessing content. Apple’s iTunes, the new 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 fairlya ddressed.
Well, now I see why they use the term "consumer". Because there really isn't something like a "citizen creator-friendly DRM". Note that the goal is to develop "a robust content delivery market", not to create a robust platform for democratic culture.

Did you know that the report doesn't mention the Digital Millennium Copyright Act once? Seems rather odd if one is going to discuss creating a marketplace in which DRM is a part. Guess CDT just assumes the DMCA is just fine. I'm not against DRM, myself, I just don't think the government should be in the business of enforcing it.

Note also the reference to "issues relating to public affairs content ... are fairly addressed." You see, there is "entertainment" and no one needs to ensure the issues regarding "entertainment" are fairly addressed. However, we have this thing called "public affairs content" and that should be fairly addressed. And who will be making this call, one wonders? Will we be thrown a public affairs bone just to keep the consumers happy? Will this be anything like the "public interest obligations" that justify giving away billions of dollars in bandwidth to broadcasters?

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.
Wow. Not even a throw away line about educating people about their rights with regard to content. What about teaching citizen creators about the importance of fair use? What about teaching them about their rights with regard to DRM? That's right, they don't have any. I suppose people will be taught that violating DRM is unethical and dangerous.

That's just the introduction.

The Difficult Search for Solutions

In framing solutions to these problems, however, many of the most direct or obvious approaches are in direct conflict with the values that make the Internet and other digital communications media so valuable. The Internet’s decentralized architecture means that there are no gatekeepers dictating who can speak, what they can say, or what innovative new services or inventions can be deployed online. That openness has led to an explosion in communications technology that will benefit consumers and continue to fuel demand for digital content in new and unexpected ways for years to come.
This section of the report highlights some of the dangers of some proposed solutions. Strangely, however, there is no mention of one of the other things the internet has enabled: an explosion of content produced by amateurs, citizen creators, or what impact some of the proposed solutions would have on this aspect.

A Proactive Approach to the Piracy Problem

Punishing Bad Actors

This is where CDT puts forth their plan in more detail. First up, suing direct copyright infringers, as long as due process concerns are taken into account and legitimate alternatives are available. Absolutely, couldn't agree more. You're preachin' to the choir brother. Question, however, is there really due process when the potential penalties for infringement are so wildly ridiculous? I guess so, because CDT doesn't mention any due process problems.

Second up, using secondary liability against bad actors. CDT notes that,

such liability must be crafted only to target bad activity without chilling the development of new technologies or the provision of online services. It should be aimed at the bad actors who intentionally encourage and profit from infringement, while at the same time protecting innovative new technologies and services with valuable uses. Creating a specific legal test that achieves this balance is a difficult but important task.
Sen. Orrin Hatch (R-UT) said pretty much the same thing when he introduced the INDUCE Act. The following is the formulation CDT endorsed in their amicus brief in Grokster: Brief of The Digital Media Association, Netcoalition, The Center for Democracy and Technology, and the Information Technology Association of America [PDF]:
If there exists a reasonable possibility that there will be substantial current or future use of a technology for noninfringing activities, the provider of that technology is not secondarily liable for copyright infringement even though users misuse it. [emphasis in original]
Judges will be making this call, not people from the future. How would a lawyer advise a client under this standard? Doesn't this also create a perverse incentive for the content industries to withold content from a new technology in order to make it look as infringing as possible? I could go on, but this hardly seems like a solution that will protect innovation sufficiently.
Other legal tools, such as consumer protection laws, should be used aggressively against those who trick others into violating copyright law. For example, many so-called “100% legal” file-sharing services are in fact unlicensed services that defraud consumers by promising lawful access to works.
If this is a problem, absolutely. But the FTC hasn't yet seen fit to act, and had this to say in 2004 (Testimony of Mr. Howard Beales, Director, Bureau of Consumer Protection, Federal Trade Commission):
Although the Commission has required warnings with respect to inherently dangerous products in appropriate cases, we are not aware of any basis under the FTC Act for distinguishing P2P from other neutral consumer technologies.

Distributors of P2P file-sharing programs could also violate Section 5 of the FTC Act if they made deceptive claims about such risks. The FTC staff reviewed the disclosures on the Web sites of the ten most popular P2P file-sharing software program distributors. Consumers have downloaded these ten file-sharing programs more than 640 million times. The purpose of this review was to determine whether these distributors misrepresent the risks associated with their P2P file-sharing programs.

The FTC staff’s review revealed that distributors of P2P file-sharing programs use a variety of means to convey risk information to consumers. Distributors disclose risk information on their own Web sites or in their licensing agreements with consumers. Some distributors also provide consumers with a hyperlink to risk information at www.P2PUnited.org, one of the P2P file-sharing software industry’s trade associations. In addition, one of the main portals for downloading such programs, www.Download.com, discloses some risk information on its site.

FTC staff reviewed and analyzed the representations made by these distributors about the risks associated with downloading and using their programs. None of these representations appear on their face to be false or misleading.

Distributors of P2P file-sharing programs do not appear to be providing as much risk information about their products as they could or providing risk information as clearly and conspicuously as they might. Because risk information may be useful to consumers, the Commission believes that it would be beneficial for distributors to make this information more accessible.

Next, CDT encourages broader action by the feds in enforcing copyright.
To remain fair in the eyes of the public, CDT believes that copyright enforcement on the Internet should be broad in reach, but not overly severe in impact. One approach to achieving this type of enforcement scheme was proposed in the 2004 PIRATE Act, which would have given the Justice Department civil enforcement powers that could make broader enforcement, without criminal penalties, more feasible.
Yeah, enforcement sure seems more fair when it is the government doing it. Don't want those copyright holders to carry all the bad publicity.

CDT also recommends cooperation between ISPs and copyright holders:

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.
That would be a nice trick.

Embracing Digital Content Delivery and Consumer-Friendly DRM

Here's the carrot, such that it is. The argument CDT is making is that you can compete with free, but it seems you need DRM to do it. There is really no discussion of competing with free through better quality, selection, convenience, etc. There is also no discussion of alternative business models, such as alternative compensation schemes. CDT arguments seem wedded to selling objects. Actually, I shouldn't say "sell" since there is no ownership. CDT arguments seem wedded to the licensed model, where consumers only consume and never own.

While DRM systems can be very restrictive, much work is underway to create content protections that allow expansive consumer uses, while still protecting against widespread redistribution.
But apparently, no expansive citizen creator uses.
CDT’s view, therefore, is that content owners are generally within their rights to put out restrictive DRM. In a functioning market, DRM that fails to provide an attractive bundle of rights at an attractive price will fail. [emphasis in original]
Strange, no discussion of how the DMCA shapes and changes this market.

Now, CDT doesn't completely ignore some of the important free speech considerations that DRM raises, but they do so in a very limited fashion.

Preserving access to news and political content is particularly important. Restrictive DRM, widely adopted (or, even worse, generally mandated by regulation), could preclude otherwise legal uses of digital media – such as using a portion of a work for a political ad, for online review or commentary, or for a university class. Such limitations raise concerns about creating gatekeepers to online speech, and undermining the Internet’s status as the most participatory communications medium in history.

For example, video clips from the Presidential campaign and the Asian tsunami disaster were widely distributed online and had a major impact on many people’s understanding of important world events. Copy protections should not preclude such valuable uses of content for political and educational purposes. [footnotes omitted]

This is an extremely limited vision of free speech. Apparently, political speech gets full protection, but other forms of speech we don't really need to concern ourselves with. I reject this Meiklejohnian vision of the First Amendment for the more inclusive, democratic culture vision of Balkin's.

CDT concludes the DRM shouldn't violate privacy. Joy. Unlike the enforcement branch, however, CDT doesn't suggest laws ensuring that the content industries don't violate privacy.

Public Education

Basically, people must be educated that infringement is wrong and DRM is their only choice (though some types might be better than others).

In addition, public education about copyright is necessary for an informed debate about the impact of DRM on First Amendment uses of such digital content as news and public affairs information, as discussed in the previous section.
Informed debate, especially about news and public affairs information. Great. No informed debate about a democratic culture, I guess.

Next, the action plan.

Translating the Approach Into Action

The enforcement aspect pretty much repeats the points made above.

The friendly DRM portion is somewhat interesting:

CDT is working to analyze the consumer interests in DRM and to promote a market for consumer-friendly content protections that can facilitate new models for delivering digital content.
Well, to start, it isn't simply consumers who have interests in DRM.
DRM metrics – CDT is working with the assistance of industry and technology experts to develop a set of metrics for use by consumers and product reviewers evaluating digital media products and services. These metrics will focus on such factors as transparency for consumers; protection for reasonable uses, especially for important public interest content; interoperability with different devices and platforms; and privacy impact. CDT believes that developing criteria for evaluating the benefits and costs of DRM is an important step toward creating a well-functioning DRM market in which consumers are well-informed market actors. [italics in original, footnote omitted]
This ought to be interesting. Too bad fair use can't really be reduced to a metric. If it could, we would have long ago solved many of our copyright problems.

CDT also mentions their support for a consumer-friendly Broadcast Flag.

CDT proposes a number of educational initiatives, basically repeating the points made above, though they really want to go after spyware.

Conclusion (Mine)

Though this purports to be a balanced approach to copyright, the balance is nearly entirely one-sided in favor of the content industries. It is balanced only in the sense that it is somewhat less copyright maximalist than the content industries' position.

For example, in enforcement, CDT suggests the need for additional legislation providing for more copyright penalties and a lower standard for secondary liability. However, they never suggest that the public interest may require legislation to strengthen it as well. This hardly seems balanced. What about copyright terms? Copyright law is overly complex, perhaps it should be simplified? What of the DMCA? Is it just fine and dandy? Might we need legislation to ensure privacy protection?

CDT claims to desire to preserve the internet's values. However, there is no mention of, for example, open source. How is CDT's vision of DRM compatible with preserving the internet's openness through DRM?

And why the insistence on DRM? Why doesn't CDT even mention any alternative business models or look at least as closely at means of creating value without DRM?

CDT's vision of free speech seems rather skewed. Political speech and public affairs are privileged in their model, much like Meiklejohn's. Why no vision of free speech as democratic culture?

The education aspect seems remarkably one-sided as well. There is a throw away line or two about debating the impact on the First Amendment and rights, but it seems the major emphasis is a fire and brimstone lecture on the dangers of infringement and the saving graces of faith in DRM.

The biggest thing for me, however, is that this report speaks constantly of the consumer. No where does the report recognize that we are no longer simply consumers, but creators in our own right. Without recognizing that fact, how can you have a 'balanced framework'?

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act


COMMENTS

1. Seth Finkelstein on June 7, 2005 10:52 PM writes...

It's important to understand that CDT is basically a business-oriented policy organization, mostly telecomm. Not that that's a bad thing per se. But that's what they are.

The report is "balanced", from their perspective - it's balanced between the interests of the business of big copyright-owners, and in the interests of the business of big tech/bandwidth companies. These are somewhat in conflict, and CDT outlines the issues.

"Citizens" don't count. "Citizens" don't fund CDT.

Where you stand depends on where you sit ...

Permalink to Comment

2. Cory Doctorow on June 8, 2005 12:13 AM writes...

I have to say that I was pretty surprised to see my DRM and the Developing World paper cited as one of the hard-line papers on DRM -- one doesn't normally think of the co-signers on it, like the World Blind Union, as extremists. Does CDT really mean to take a position on the other side of the WBU?

Permalink to Comment

3. DeadMan on June 8, 2005 06:21 PM writes...

Everyone wants to define what copyright is and what it should be. In other words. Everyone wants a slice of the pie.

These so called 'trade groups' like this CDT and other assorted acronyms make me sick.

It's all about money and control of assets. Copyright became unbalanced the moment it was extended beyond it's original expiration period. Very little is falling into the public domain anymore. DRM allows rights holders to hold indefinite copyright. All they have to do is take away the key to the lock and nobody gets access to the material again until they deem it profitable again.

Fair use? It's an alien concept to the greedy execs. All they have to do is continually grease politicians palms to strengthen existing laws and create new ones that protect their bottom line then sit back and watch the money flow in. It's all corrupt. In fact it stinks so bad I can smell the BS from here.

Peoples freedoms are continuallly being eroded away and all this is going on behind closed doors.

I hope all these groups who proclaim to be protecting us rot in hell.

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