Difference between revisions of "Archive:2006-2007 Policy Paper"

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(Patents: outline)
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=== Business Method Patents ===
 
=== Business Method Patents ===
  
Eliminate business method patents
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'''What we want''': Eliminate business method patents
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'''Why''':
 +
 
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'''For more information''':
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*
  
 
=== Software Patents ===
 
=== Software Patents ===
  
Eliminate software patents
+
'''What we want''': Eliminate software patents
 +
 
 +
'''Why''':
 +
 
 +
'''For more information''':
 +
* [http://www.nosoftwarepatents.com/ NoSoftwarePatents.com], campaign to prevent software patentability in the European Union
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* [http://ffii.org/ Foundation for a Free Information Infrastructure], European non-profit with 90,000 registered supporters opposing software patents. Nearly 2,000 European companies with €3.2 million annual turnover agree.
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=== Fair Use ===
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'''What we want''': Create a statutory exemption to patent rights for the exercise of Constitutional rights
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'''Why''':
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'''For more information''':
 +
 
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=== Patent Quality ===
 +
 
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'''What we want''': Concrete steps to improve the quality of patents issued
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'''Why''':
  
=== Other Issues? ===
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'''Some suggestions''':
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# ''Create a post-grant opposition review procedure.''
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# ''Remove improper incentives to grant patents.''
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# ''Stop patent trolling by ensuring inventions are made available to the public.''
  
Patent quality, obviousness, review / challenging...
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'''For more information''':
 +
* [http://www.pubpat.org/ Public Patent Foundation], American non-profit to represent the public interest in the patent system. See particularly the June 9, 2005 [http://www.pubpat.org/Ravicher%20Statement%20on%20Patent%20Act%20of%202005.pdf statement of Executive Director Dan B. Ravicher before the House Subcommittee on Courts, the Internet, and Intellectual Property]
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* [http://www.eff.org/patent/ Electronic Frontier Foundation "Patent Busting Project"], project by American non-profit to document and challenge patents harmful to the public interest.
  
 
== Open Access ==
 
== Open Access ==

Revision as of 02:33, 4 January 2006

This document will tell us what our positions are on specific issues, so that we can take those positions and fill them out into "issue papers" that can be handed out to legislators.

  • 1 line / sentence summary of what we want, e.g. "Eliminate software patents"
  • 1-2 paragraph explanation / justification (e.g. "SW pats harm cows, irritate my stomach, and molest children"
  • relevant statutory citation
  • optional 1-5 references for more information

FreeCulture.org

The student movement for free culture

U.S. federal policy paper

2006-2007

Introduction

Copyright

Fair Use

Fairly using a copyrighted work is becoming an endangered act. Musicians are no longer allowed to assume that a use of a sample constitutes fair-use, but must license every sample they use -- they are relegated to asking permission to perform an act that is increasingly accepted as a natural constituent of their artistic process. Moreover, consumers are feeling the effects of the death of fair-use. As the DMCA prohibits circumventing content protection devices, excercising legitimate and well established fair-use rights becomes illegal. Software, whose inherent functionality likens it to tools, is subsequently implicated and software developers are often held responsible simply for authoring software that allows consumers to excercise their fair-use rights. In the case of Digitally Rights Managed (or socalled "copy protected") CDs, simple morsels of information can become illegal. Computer Science graduate students have been threatened with multi-million dollar lawsuits for publicly explaining that the shift-key disables DRM in Microsoft Windows environments.

Fair use is an important and necessary part of copyright law. Without it, artists, musicians, and consumers are faced with the undue burden of acquiring permission to access, recontextualize, and rework past works of art. Copyright is designed to grant a limited monopoly to the owner of the copyright. The seeming perpetuity of all current copyrights coupled with the death of fair use, leads us to the unfortunate conclusion that copyright is currently functioning as an unlimited monopoly over intellectual property rights; a concept that is quite contrary to the original intentions of the US Constitution and its conception of copyright. Fair-use is not only an important part of our free culture, but a necessesary one.

DMCA Reform

The DMCA presents the greatest legal threat to fair use. Suppose a consumer wants to make a personal backup copy of a CD. This backup copy, without fair-use, would be considered an infringement. Fortunately, there is well established social, legal, and cultural precedent that prevents this act from being considered illegal. The legal arguments for protecting this act stem from the Sony Betamax case, and the social and cultural ones have simply evolved as more and more consumers acquire media duplication capabilities.

Now suppose that CD is digitally rights managed (or "copy-protected"). Since DRM is considered a copy-protection scheme under the DMCA, it means that regardless of the intent of the consumer, any successful attempt at defeating DRM results in a violation of the DMCA. If the DRM prohibits a copy of the CD from being duplicated, and a user holds down the shift-key in Windows to defeat the DRM for the sake of being able to duplicate the CD, then that user will have violated the DMCA. Regardless of the intention of the act, it has ceased to be protected under fair-use, as it has violated the DMCA. There are obvious absurd consequences of this tension -- what if the user uses a digital media server to "rip" the CD and then transfers those Mp3s onto her iPod? Techinically since the digital media server has ignored the DRM, it has violated the DRM, but it seems like a less flagrant violation than the user purposely defeating the DRM through the Windows-shift-key workaround.

Regardless of the technical problems associated with actually enforcing this aspect of the DMCA, we must acknowledge that this part of the law is broken. Anything that essentially negates the fair-use provision of US copyright should be considered dangerous and unnecessary. To that end, FreeCulture.org advocates reforming the DMCA, and supports the EFF's attempts at doing so.

Supporting HR 1201 "would give citizens the right to circumvent copy-protection measures as long as what they're doing is otherwise legal." This solves the problem of the naive consumer violating a federal statute for the sake of getting his daughter's Britney Spear's CD to work on her iPod.

Other Issues?

Peer-to-Peer Filesharing

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.

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.

Term

Orphan Works

Patents

Principle: Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery. (Principle 5, Adelphi Charter)

Business Method Patents

What we want: Eliminate business method patents

Why:

For more information:

Software Patents

What we want: Eliminate software patents

Why:

For more information:

Fair Use

What we want: Create a statutory exemption to patent rights for the exercise of Constitutional rights

Why:

For more information:

Patent Quality

What we want: Concrete steps to improve the quality of patents issued

Why:

Some suggestions:

  1. Create a post-grant opposition review procedure.
  2. Remove improper incentives to grant patents.
  3. Stop patent trolling by ensuring inventions are made available to the public.

For more information:

Open Access

Government Purchasing

Free/Open Source Software

Open File Formats

Open Protocols

International Issues

Broadcast Treaty

Block the WIPO Global Broadcasting Treaty

The Global Broadcasting Treaty is a proposal currently being considered by the World Intellectual Property Organization (WIPO). The treaty aims to give wireless and cable media distributors and webcasters a twenty- to fifty-year copyright over the content that they transmit. "Webcaster" is defined loosely in the treaty, such that the broadcaster's right would apply to virtually any content found on the Internet.

No nation has ever implemented broadcaster's rights with this broad a scope. Over 100 countries, including the United States, never signed on to the preceding Rome Convention and thus have no broadcaster's rights at all. Thus, it is unclear why broadcasters need them as an incentive to distribute media profitably.

At the same time, the potential problems of introducing a brand new layer of rights are myriad. The treaty would give ISPs and other middlemen veto power over the use of all the content they transmit, even though they make no creative contribution to that content. This would effectively close off the public domain; where citizens were previously free to redistribute public documents or remix Creative Commons-licensed music, now these uses and many others would require media moguls' permission. It is likely that the resulting legal entanglements would prohibit all but a tiny oligarchy from participating in online media production--effectively killing the Internet as a forum for citizen participation.

Only a few distributors would gain from an extra layer of copyright restrictions; everyone else stands to lose a lot. Given that the purpose of copyright is to provide incentives that further the common good, therefore, the "middlemen's right" proposed in the Global Broadcasting Treaty must be rejected.

For more information:

World Intellectual Property Organization: http://www.wipo.int/

IP Watch: http://www.ip-watch.org/

IP Justice: http://www.ipjustice.org/

About FreeCulture.org

See also