Archive:2006-2007 Policy Paper/Notes

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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.


This document aims to lay out'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.


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


  • 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 (in final version?)
  • optional 1-5 references for more information

Sections not included

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")

Municipal wi-fi

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:


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.)

Peer-to-Peer Filesharing

What we want:


  • P2P technology has substantial non-infringing uses.


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. 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.

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, 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.

Patent Fair Use

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


For more information:

Copyright statutory damages