The Center of Democracy and Technology is an Internet policy think group that has been around for 10 years. It was teethed on fighting the Communications Decency Act back in the mid-90s. CDT has always tried to be principled without being absolutist (it's founding members split from EFF).
Later, as the Internet began to flourish, CDT played a crucial role in preventing burdensome privacy legislation by helping develop self-regulatory measures that satisfied the FTC and Congress. They also were in the middle of the encryption battles that the industry ultimately won.
Back to the future. At the 10-year anniversary party for CDT a few months ago, we were taken aback by the 500 or so well-dressed tech policy folks from big Internet companies (VeriSign, eBay (including Meg Whitman), Yahoo!, etc.), people from telecom firms, lawyers, lobbyists, congressional staffers, media and others who crowded into the Ritz Carlton to toast the groups accomplishments. [CDT, btw, gets about half of its funding from foundations and half from a myriad of different tech and telecom sectors.]
Bottom line: CDT knows a thing or two about drawing an audience and support for its ideas. (And, jeez, tech policy is a heck of a lot fancier than it used to be).
CDT’s most recent ideas are an attempt to firmly insert the group in the middle of the digital content copyright debate – emphasis placed on the word “middle.” Yesterday, the group released its paper called: “Protecting Copyright and Internet Values: A Balanced Path Forward”.
Here’s the philosophy behind it...
CDT believes that stakeholders and policymakers risk several adverse outcomes if they fail to craft balanced solutions to the problem of widespread Internet piracy
First, massive infringement may continue undeterred, chilling the development of valuable and expensive-to-create content.
Second, the government may respond to the piracy problem in ways that are in direct conflict with the innovation and openness that makes the Internet and other digital communications media so valuable. For example, government could seek to fight infringement through the imposition of burdensome technology mandates or by imposing broad liability on intermediaries or equipment makers - any of which could severely chill innovation and limit the choices available to consumers….
Third, copyright holders may seek to limit content delivery to closed networks or consumer electronics boxes that do not connect to the Internet. This would ignore the demand for access to content as part of computer users' increasingly integrated, multi-media, and creative experience….
CDT believes that content creators, technology companies, and consumers all have a strong shared interest in avoiding these outcomes.
None of the above should be a surprise. After all, CDT filed an amicus brief in the Grokster case with the Digital Media Industry Association (Real, Apple, Yahoo!, etc.) that split the middle of the plate (See background on it here). But, in this new paper, CDT looks beyond the Supreme Court and toward post-Grokster decision legislation that is be sure to be the tech-policy debate du jour this summer. CDT and its allies know that killing bad legislation laws isn’t good enough and that they are going to need to meet in the middle and offer some solutions to prevent an Induce Act-like bill from passing.
Here’s what they’ve got so far (and, this is meant to be a working document):
• Punish bad actors, whether individual infringers or companies like Grokster that profit by actively encouraging infringement (but without seeking to control technologies)….
• Encourage a marketplace of content-protective and consumer-friendly digital rights management ("DRM") tools to allow the deployment of new models for digital distribution of content. Apple's iTunes, the Napster subscription service, and other digital media offerings show how new systems can deliver content without inflexible technology mandates or regulatory restrictions…
• 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….
The reaction from the blogosphere...
One of Copyfight’s lawyer/bloggers is the sharp Ernest Miller. His take on CDT’s positions from a detailed blow-by-blow analysis:
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….
…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. Nowhere 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'?
Law professor Ed Felten on his “Freedom to Tinker” blog takes on the “DRM-is-Doomed” line:…
(With DRM) CDT’s strategy is essentially to wish that we lived on a planet where DRM could be consumer-friendly while preventing infringement. They’re smart enough not to claim that we live on such a planet now, only that people hope that we will soon… CDT asserts that if DRM systems that made everyone happy did exist, it would be good to use them. Fair enough. But what should we do in the actual world, where DRM that everyone loves is about as likely as teleportation or perpetual motion?… Here’s the bottom line: In the real world, DRM policy involves tradeoffs, and requires choices. Wishing for a magical DRM technology that will please everyone is not a strategy.
Over on the other side of the fence sits our friends at the Progress & Freedom Foundation. On their IP Central Blog, Patrick Ross writes:
I remain on the lookout for those seeking the middle ground in the copyright debate, and that search has brought me to an impressive document by the Center for Democracy & Technology. "Protecting Copyright and Internet Values: A Balanced Path Forward" attempts what few are willing to do -- find a balance between copyright protection and preservation of Internet freedom. I find myself largely in agreement with their stated preferences, and while I differ somewhat with CDT on how those preferences are defined, I still welcome this paper to the debate….
And, in a counterbalance to Professor Felten’s points, Ross writes:
Also welcome is CDT's emphasis on DRM. They specifically cite Napster To Go, my current favorite anecdote on the power of DRM in the marketplace. They also emphasize the importance of avoiding government mandates of DRM and consumer options on DRM. Again, I'm fine with those, and believe that in a functioning market, the consumer will have a wide range of DRM choices at a wide range of prices, and the providers will have a strong incentive to make clear to consumers exactly what they are getting for their money.
Our gut check on the paper is that we agree with PFF that a middle ground is essential and applaud CDT's efforts.
At the same time, we can sympathize with the counter arguments to the paper. After all, the only real substantive hear and now solution is that we punish the bad actors like Grokster (agreed). While DRM isn’t a fantasy as many suggest, it also isn’t a panacea. More than anything, on a grand scale, it’s still untested. And, it’s unknown whether it will be able to keep up in the horse race with new technological developments. What happens when your 300 GB movie/TV/Music handheld device has the capability to share content with everyone in a café on the same Bluetooth-esque network?
Also, as a teenager of the ‘80s, you have to flinch at “educational” efforts that tell you to "just say no" to illegal content. Good intention. And, there’s nothing wrong with the suggestion. It’s just not so realistic in practice unless the effort is incredibly innovative. It’s not like kids are dying (cigarettes, drunk driving) from downloading System of a Down (yet).
STILL, what is lost on many outside of Washington, is that this is not always about reality (especially a reality seen through the prism of technologists), it’s about politics. And, and as hard as it is for some to recognize, the center simply wins in business policy debates (especially on an issue that isn't naturally partisan). CDT is working in a Washington environment that is vastly different from Silicon Valley's or or any tech-savvy center. Put simply and wrong or right, most members of Congress (Democrats and Republicans) believe that P2P equals theft. Many also understand that technology mandates don't work. Still, without reinforcement from those in the tech industry, current fears of theft could impede future, unknown innovations.
Agree with them or not, the content industry is just doing its job. They are going to get as much of a competitive advantage and leverage from the policy process as possible.
Now, via CDT and others, we’re seeing different voices who have credibility in DC get engaged and use the essential protocol for getting things done on Capitol Hill. Their work will be essential in ensuring that post-Grokster legislation isn’t onerous, can satisfy the consumer wants of the vast majority of the population and will allow us to continue the debate over fine-lines of digital content policy as technology develops for years to come.
[And, btw, like so many social activists in this country;'s history, Internet activists are doing their job by exposing truths and promoting innovative ideas that may not meet the mainstream today, but could be viewed as the norm years from now.]
Comments