Archive:2006-2007 Policy Paper

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FreeCulture.org

The student movement for free culture

U.S. federal policy paper

2006-2007

See /Notes

Introduction

Copyright

introduction

Term

What we want: Roll back extensions of copyright terms.

Why:

Suggestions: Repeal the Sonny Bono Copyright Term Extension Act. Require registration to keep copyrights longer than a shorter term such as the initial 14 years. Limit the total term with renewals to 28 years. Longer terms than the aforementioned may be acceptable, but significant reductions in terms are needed to reach a balance.

For more info:

Notice

What we want: Provide incentives for copyright owners to provide notice of copyright ownership on their work.

Why: Copyrights should come with responsibilities. The public deserves to know whether a work is copyrighted, and if so, who owns it.

Suggestions:

  • Injunctive relief and damages for copyright infringement should be reduced for infringement of copyrighted works that fail to display notification.
  • The Copyright Office could build a database to make it easier to find copyright owners.

For more info:

Fair Use

What we want: Congress must preserve and strengthen the right of fair use.

Why: 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.

Suggestions:

  • The Copyright Office could publish "guidelines on fair use" summarizing the common law in order to help creators and users better estimate whether a use would be fair, and to dispel myths and misconceptions.

For more information:

DMCA Reform

What we want: We support the reforms in HR 1201 (the DMCRA), although it also needs to permit the manufacture and distribution of circumvention tools for lawful purposes.

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.

Peer-to-Peer Filesharing

What we want:

Why:

  • P2P technology has substantial non-infringing uses.

Suggestions:

For more information:

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.

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.

Orphan Works

What we want: Congress and the Copyright Office should take action to alleviate the problem of orphan works, by creating a "reasonable effort" defense for good faith uses and by establishing guidelines for creators and users.

Why:

Suggestions:

  • We want limited liability for good faith infringement of works for which the copyright holder cannot be located.
  • We want a publication from the Copyright Office to outline guidelines for creators and users.

For more info:

DRM Mandates (Analog Hole, Broadcast Flag)

What we want: The government should not impose technical protection measures via force of law, but rather should let market forces guide their use and adoption.

Why:

For more information:

Patents

introduction

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 fair use defense for patent infringement

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.
    • Patent examiners should not get paid based on a quota system
  3. Stop patent trolling by making it harder to get an injunction.

For more information:

Open Access

What we want: American taxpayers should have open access on the Internet to the results of research funded by the U.S. Government.

Why:

  • Widespread access to the information contained in these articles is an essential, inseparable component of our nation’s investment in science.
  • This and other scientific information should be shared in cost-effective ways that take advantage of the Internet, stimulate further discovery and innovation, and advance the translation of this knowledge into public benefits.
  • Enhanced access to and expanded sharing of information will lead to usage by millions of scientists, professionals, and individuals, and will deliver an accelerated return on the taxpayers' investment.

When research is funded by the taxpayers, the taxpayers should have access to that research. They should not have to pay twice for the same information.

Suggested implementation:

  • Require researchers to deposit published articles resulting from federal funding in an open access online database of journal literature.
  • Articles should be deposited no later than six months after their first journal publication.

For more information:

Government Purchasing

What we want: The federal government must invent in economic development and sustainability by supporting open file formats and free/open source software in its purchasing

Why:

open standards = open file formats, open protocols

Some suggestions:

  1. Purchasing agencies should require software vendors to provide documentation for their file formats. enough to re-create if necessary Open file formats and open protocols should receive preference.
  2. Free/open source software, and software supporting open standards, must receive equal consideration with proprietary solutions.
  3. Software purchasing decisions should consider standardized criteria. Criteria outlined by OSAIA Where open and proprietary solutions meet the criteria equally well, preference should be given to the open solution.

For more information:

International Issues

introduction?

WIPO Principles

What we want: The aim of WIPO should be to serve the public interest in the field of intellectual property, not simply expanding intellectual property at all costs.

Why: More intellectual property is not always better; too many restrictions can choke off the future development intellectual property is meant to encourage. Developing balanced intellectual property policy that respects the needs of individual nations is key to encouraging economic growth and cultural health.

For more information:

WIPO Development Agenda

What we want: Enshrine economic development as a mission goal of WIPO.

Why: WIPO must move beyond its obsession with endowing intellectual property rightsholders with ever expansive monopolies and consider the overall public policy interests in intellectual property. These broader concerns must support human rights, civil liberties, and economic development, especially in the developing world. As part of its moral obligation to alleviate poverty worldwide, the U.S. should support efforts in WIPO to support economic development.

For more information:

Broadcast Treaty

What we want: Block the WIPO Global Broadcasting Treaty

Why: 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:

Intergovernmental Organization Copyright

What we want: Intergovernmental organizations such as the United Nations should not hold copyright on their publications.

Why: There are no copyrights on works produced by the US government for a good reason. The purpose of copyright is to incentivize creativity and the dissemination thereof, and neither purpose is being served by giving the United Nations copyrights. The United Nations will produce documents whether or not they have copyright protection, and copyright licensing is not a major source of revenue. In fact, it harms the public interest by creating barriers to further disseminate and build upon the work, as well as preventing business from using it commercially.

For more information:

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