Archive:2006-2007 Policy Paper/Notes

2006-2007 U.S. federal policy paper

Notes by the board of directors

This document is not without controversy; indeed, the very concept of the document was controversial. We hope that these notes will help explain the concept as well as particular facets of the document.

You are invited to comment on the policy paper at its talk page.

Purpose
This document aims to lay out FreeCulture.org's positions on U.S. federal policy for the 2006-2007 election cycle. There are several purposes or intended benefits to this:
 * help us talk to legislators about what we want
 * help us talk to media, other organizations, and the public about what we want
 * serve as stubs for "issue papers" for legislators and the public
 * educate our members about areas of policy they may be unfamiliar with
 * encourage discussion within the organization and within the community
 * help build consensus for solutions within the organization and within the community

At its most basic level, it is difficult for an advocacy organization to function without policy positions. (When a journalist or someone else asks, "What do you think about X?," how do you respond?) This document is designed to serve that purpose and others, including some arising from the drafting and revision of the document itself.

Scope
This document refers to our U.S. federal policy positions, i.e.
 * U.S. federal legislation, and
 * the operation of U.S. government agencies.

One way of conceptualizing the scope of this document is "what Congress can affect". Congress can pass laws; Congress can exercise oversight of federal agencies; Congress can affect treaties; Congress cannot directly influence judicial decisions.

This document makes no reference to:
 * Non-legislative policy, such as the adoption of Creative Commons licenses by individuals
 * State or local policy
 * Other countries, other than in terms of U.S. toward them

It has not been decided how policy will be established in those areas.

Note that this document lays no claim to priority, either. This policy paper aims to lay out our overall vision; inclusion or exclusion from this document does not indicate our priority for working on a certain issue.

Format

 * Section introduction / overview
 * Topic
 * What we want: 1 line / sentence summary of what we want
 * Why: 1-2 paragraph explanation / justification
 * Suggestions: (optional) where "what we want" is not specific, suggested ways to implement
 * For more information: optional 1-5 references for more information
 * (undecided) Relevant statutory citation

Sections not included
There were various topics we discussed, but decided not to include in this draft, for lack of time to sufficiently discuss the issue or other reasons. If more information is provided on these topics, they may be included in the final draft of the policy paper. Alternatively, they may be considered for inclusion in future policy papers, pending further research.

DMCA Reform
Every board member agrees there are serious problems with the Digital Millenium Copyright Act, but we were unable to reach consensus on the proper path to reform. In particular, we could not agree on the best way to fix &sect;1201, Circumvention of copyright protection systems.

We identified three possible solutions:
 * 1) The Digital Media Consumers' Rights Act (DMCRA) as introduced in the 109th Congress (HR 1201) would legalize the circumvention of DRM for otherwise-legal purposes (e.g. fair use). What was legal before the DMCA&mdash;to circumvent copy protection for legal purposes&mdash;would once again be legal; breaking DRM for infringing purposes would remain illegal. Making or distributing tools to circumvent DRM, for any purpose, would remain illegal. (It's OK to break DRM, but you have to do it yourself.)
 * 2) "DMCRA plus tools", e.g. as implemented in the version of the DMCRA introduced in the 108th Congress (HR 107), would legalize the circumvention of DRM for otherwise-legal purposes. Would also legalize the manufacture or distribution of tools to circumvent DRM for legal purposes.
 * 3) Repeal &sect;1201. This would legalize the circumvention of DRM, as well as the manufacture or distribution of tools to circumvent DRM, for any purpose. The infringing act itself would remain illegal.

We need not discuss the urgency of fixing the DMCA; those helping us revise this document will be well-versed in its wrongs. But finding the proper solution is a tricky balancing act.

Option 1 leaves individual consumers in the cold, unless they are savvy enough to circumvent DRM by their own devices. This creates the absurd situation where an individual who creates a tool to circumvent DRM for legal purposes, and distributes it for the benefits of others, would be breaking the law.

Option 2 fixes the "tools" loophole of Option 1. However, allowing the distribution of circumvention tools, even for strictly legal purposes, may encourage their use for infringing purposes.

Option 3 leaves DRM with no legal protection. Consumers are free to circumvent DRM. Infringing acts themselves remain illegal. There is no additional penalty for infringement if the infringer had to first circumvent DRM.

Some of the questions in this debate include:
 * Does DRM ever serve a positive purpose?
 * Has DRM enabled new markets that would not have otherwise existed, e.g. would iTunes, et al. exist without DRM? Do these new markets depend on legal protection of DRM?
 * To what extent does DRM prevent private, non-commercial copying (e.g. filesharing) vs. whole-sale commercial infringement (e.g. commercial piracy rings)?
 * Would the availability of tools to circumvent DRM for legal purposes inevitably lead to their use for infringing purposes? To what extent? Or do the pirates already have these tools?
 * Does the existence of "double-whammy" penalties for infringement and DRM circumvention discourage piracy? To what extent? To what extent does it harm private, non-commercial copying?

Note that this discussion is separate from the discussion of the other purpose of the DMCRA, i.e. to require labeling for DRM CDs.

Peer-to-Peer Filesharing
Filesharing is a huge question and one people often ask about. We should have a policy to answer them with.

There are three major components of the p2p question, which in turn raise their own questions:
 * the technology
 * the manufacturers / service providers
 * the users

Thanks to better technical understanding and more prominent non-infringing uses, there is little discussion about legal action or discrimination against the technology of p2p anymore.

The main questions for us are how to deal with the manufacturers and the users of p2p.

Manufacturers
For p2p manufacturers / service providers, the issue is liability: when should a manufacturer be responsible for its customers' infringement?

Users
Once we resolve the question of liability for manufacturers, the trickier question of how to deal with p2p users remains.

Unauthorized filesharing is efficient, free of cost, and socially acceptable. (All unauthorized distribution is free of cost or cheap, but filesharing in particular is efficient and socially acceptable.)

text dump
Fred's draft text: Despite what the content may attempt to lead the public to believe, there is a demand for legitimate degital media distrubtion. P2P filesharing is attractive because consumers have relatively unattractive alternatives. They either buy DRM-infected CDs or attempt to purchase music on iTunes, which is also burdened with unnecessary and low-quality DRM restrictions. The P2P networks offer a much more attractive alternative to the current business model touted by the record companies, and regardless of the number of lawsuits threatened and even settled, it seems very difficult for the industry to stem the tide of public opinion regarding file sharing. Sharing music files with one's peers has now become a staple of online social relationships, and is becoming increasingly accepted as a legitamite form of promotion for up and coming independent music.
 * P2P technology has substantial non-infringing uses.

FreeCulture.org argues that the content industry needs to offer a legitimate and attractive alternative to P2P networks in order to "fix" the current problem with unauthorized distribution of copyrighted works. Controlling digital distribution of media may be a intractable issue, much like the one presented by over-the-air transmissions. Adding increasingly complicated and less functional DRM schemes to the market does not make products more attractive to consumers, and actually alienates them even more. As long as the current structure of computers and digital audio equipment remains functional, there seems very little that the content industry can acheive in preventing unauthorized digital distribution. This is an inevitability of current technology, one that will not be bucked by mass gestapo-like lawsuits and bad laws like the DMCA.

Public spectrum

 * LPFM
 * DTV transition, esp. re: unlicensed spectrum
 * use of public spectrum (fairness doctrine, ownership regulation)

EULAs and contract law

 * enforcability (coercion)
 * market regulation ("bill of rights")

Government copyright
What we want: The federal government should not hold copyrights.

Why: Under copyright law, works of the US government are not covered by copyright. However, currently works of contractors for the government and works transferred to the government are excluded from that. We should close those loopholes, for the same reasons that works of the government are not copyrighted.

For more information:
 * 17 USC &sect; 105 ("Copyright protection ... is not available for any work of the United States Government")
 * Frequently Asked Questions About Copyright, CENDI, 2004, especially sections 3, "U.S. Government Works," and 4, "Works Created Under a Federal Contract or Grant".

TRIPs / WTO

 * 

FTAA / Bilateral FTAs
Free trade agreements are frequently used to export the worst parts of US copyright to other countries. While the FTAA seems to have been stopped for now, the United States is now turning to bilateral FTAs and other smaller arrangements, such as CAFTA. These trade agreements are not the place for exporting stupid copyright laws.

Software copyright

 * Should software, as a class of copyrighted works, be treated the same as other classes? (e.g. should software copyright last as long as musical copyright)
 * How can we improve the disclosure of source code once software enters the public domain?
 * The current requirements to register copyright on software do not require the full source code to be deposited:
 * There are strange rules over the amount of source required to deposit, rather than simply a full copy
 * The deposit is permitted to black out portions of the code that constitute "trade secrets"
 * The current system does not provide much incentive to register copyright, via both weak positive incentives and high costs
 * Should software, in addition to copyright, be allowed to claim trade secrets? (We've already set the policy that software should not be subject to patent.)

Patent Fair Use
What we want: Create a fair use defense for patent infringement

Why:

For more information:
 * Liberty and Property in Patent Law, John R. Thomas, Houston Law Review, 2002.
 * Toward a Doctrine of Fair Use in Patent Law (abstract), Maureen A. O'Rourke, Columbia Law Review, 2000.