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Tuesday Jul 19, 2005

Innovate, Create – and Compensate!

Here is a piece I co-wrote with Susan Landau around the Grokster case. (Susan Landau is a Distinguished Engineer in Sun Labs and the co-author of 'Privacy on the Line: the Politics of Wiretapping and Encryption,' MIT Press (1998)).

The Internet is a place of innovation, creation, and communication – and we should do our best to keep it that way. Nothing in the Grokster decision said otherwise. The Supreme Court simply said that you better not base your business model on copyright infringement. It wisely avoided creating some kind of test for underlying technologies.

Twenty years ago the Court ruled in the Sony Betamax decision that devices capable of substantial non-infringing uses were legal, even if such devices could be used in copyright violations. As Justice Breyer wrote in a concurring opinion in the Grokster case, ``There may be other now unforeseen non-infringing uses that develop for peer-to-peer software, just as the home-video rental industry (unmentioned in Sony) developed for the VCR.'' His point – stopping technologies when they are young and evolving could kill off great promise and benefits that lie down the road. That is why the Court specifically focused on bad behavior while leaving the old Sony standard alone. Exactly right --- don't constrain the technology; constrain bad actors.

Innovation has flourished, and this country has reaped the rewards, because Internet technologies enable the rapid, widespread, and often anonymous flow of information. Combine that free flow with advances in digital media -- photography, video, music -- and you have an amazing opportunity for wide-scale experimentation and creative expression.

Just think: Two decades ago, home computers brought us a revolution called desktop publishing. Now home users have the tools to create professional-quality movies and music -- and a way to share them with others.

Lately, though, the Internet has become a place of conflict and contention. Why? Because people are worried about what happens to content that carries a copyright. If it's easy to copy and transmit, how can we make sure artists are compensated, as they should be, for their creative work?

Just as important, how can we do so without quashing experimentation and innovation?

Artists should be compensated. There's no question about that. But in our rush to defend their rights, let's not overlook the second question. We believe public policy should encourage innovation and free-speech. It should, as always, seek to balance the rights of individuals with the greatest public good. As Justice Breyer noted, “copyright's basic objective is creation and its revenue objectives but a means to that end.” (That's why, for instance, copyright protection doesn't last forever. More is gained in the long run from sharing.)

One of the great values of the Internet is that it has become a forum for borrowing, mixing, developing, and tinkering. After all, in both science and art, innovators build on each other's work. In the words of director Martin Scorsese, ``The greater truth is that everything -- every painting, every movie, every play, every song -- comes out of something that precedes it.... It's endlessly old and endlessly new at the same time.'' We must not make the mistake of entrenching the endlessly old at the expense of the endlessly new.

So the developing discipline of digital rights management, or DRM, needs to respect experimental, standing-on-the-shoulders-of-giants aspects of the Internet. DRM technology should be designed to respect legitimate needs and current rights of honest users (including backups, format changes, excerpting, and so on).

While the Internet certainly makes managing the rights for movies and music more complex, we believe that it is sounder economic and social policy to foster the architectural, business, political, and public freedoms that have enabled the Internet to be a place of innovation than it is to overly restrict the flow of digital information in an effort to meticulously account for every instance of the use of content.

What's more, the free flow of information is fundamental to democracy. In the shift to new forms of media and communication, neither technology nor law should limit the public's rightful access to information. Again, if we can go back to the intellectual well one more time, Justice Breyer rightly acknowledged that “the copyright laws are not intended to discourage or to control the emergence of new technologies, including (perhaps especially) those that help disseminate information and ideas more broadly or more efficiently.” Very true. So where do we go from here? We think there is a broad set of solutions in which the rights of content creators can be balanced with the common public interest in order to foster vibrant innovation. To that end, we'd like to propose the following principles of digital rights management:

- Innovation flourishes through openness -- open standards, reference architectures, and implementations.

- All creators are users and many users are creators.

- Content creators and holders of copyright should be compensated fairly.

- Respect for users' privacy is essential.

- Code (both laws and technology) should encourage innovation.

Some content owners are pressing for DRM systems that would fully control the users' access to content, systems with user tracking that limit access to copyrighted material. We instead prefer an "optimistic" model whose fundamental credo is 'trust the customer.' Excessive limitation not only restricts consumer rights but also potential, as such solutions strongly interfere with the creation of future works and fair use of copyrighted content.

In an ideal world, solutions should encourage information flow, including the capability for creating future works. Certainly there will always be "leakage" and illegal behavior. Where that occurs there should be diligent enforcement of owners' legitimate rights. BUT, we think it is better that solutions provide auditing and accounting paths that, while respecting privacy of honest users, also permit copying, manipulation, and playback.

Systems that encourage the user to play with digital material, to experiment, to build and create, will be a win for consumers, for technology developers, and for content producers. The Court has spoken, and it did so with restraint. Now it is up to technologists, artists, developers, users, and rightsholders to move ahead in a balanced and forward-looking manner. If we do, it will be a win for the Internet and for society.

Posted at 01:02PM Jul 19, 2005 by Gregp in General | Comments[121] | Permalink

Comments:

Greg, Well stated! Washington and IT lobbys will likely 'determine' an outcome for this country. I believe countries around the globe will 'innovate and participate' long before begrudging domestic acceptance. Hope I'm wrong! (Note: Kindly contact JS about an LCD issue.)

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For any type of information (music, movies, software..) marketing system to become practical, requires a global reputation system. Without this, individuals may continue to take unfair advantage of anything and everything that isn't totally "secure". And we all know that the only way to make information totally secure is to simply destroy every copy in existence. The next problem we face in creating a global reputation system, is that we do not yet have a digital Identity system that works. And without securely associating a reputation to a particular person, we have nothing. Too hard? Certainly, if you judge by the scale of the current efforts going into Identity management systems. Sometimes, you need to take a step back and look at a problem as more than just a problem. Many “problems” as they are called now, were known as a “solution” when they first were introduced. When one looks closely at widespread copyright infringement , spam, Identity fraud etc and how the various problems were at one time solutions for some older, more fundamental problem, one embarks on a journey that go right back to around 1829AD, when population densities in U.K. became sufficient to warrant the forming of the worlds first Police force. Although this initially was effective at controlling organised crime, from that point onwards, society entered a spiral of increasing surveillance, increasing crime rates and increasing outrage civil and human rights abuses. Okay, so what possibly could we have done back then, apart from precisely what was done? The answer is – nothing. Nothing that is, until now. We cannot change what has happened in the past, but we change what will happen in the future. Self-regulation is a term generally used when referring to an industry. It basically means that a group will participate in their own monitoring and recording, for the purposes of accountability. Self-regulation is used in industries which have the potential to abuse the access they are provided with, in order to function. The media is a perfect example. We are now entering the “Knowledge Age”. To many, this would seem identical to the Information Age. The difference is that Knowledge is information that is strongly associated with the Identity responsible for creating it. Now let’s put all the pieces together. Back in 1829, there were no mobile phones. There were no computers. The same problems face us now as did back then, but now we have far more solutions to choose from. Here is mine: Cellular phones are closely associated with the individual owner. It often is carried in a pocket or belt clip. Add a few sensors, some logic and enclose it on a single chip, and we have an Identity “recorder”. Identity in this context, is based on the thought that there does exist at one location at any specific time, exactly one person. That person cannot be at any other location, and further, that unlike digital data, he cannot suddenly be at some totally different location without moving between the two points at some reasonable range of speeds. The walking speed of a person is able to be measured in this way. RF data at various frequencies can be received and logged, along with a date-stamp. Through the exchange of large random numbers between similar devices in close proximity, we create a method of cross-checking the validity of someone’s claims as to their location at various times. Next, we transfer this data to an Identity agent (server). We use new protocols that are optimised due to the fact that there is a one to one correspondence, between any particular Identity and its Identity agent. The protocol may be hardened against password copying, password guessing, replay and more. Once this Identity information – which is now in digital form – is aggregated to that persons personal information vault, it may be shared with others, at the owners discretion. Rather than copy information, we treat the personal information store as a database, and “queries” may be supported or blocked, on an individual basis. Queries are omnidirectional, as there are no Globally Unique Identifiers. Handles may be created, to provide a conduit for parties who agree to communicate privately, however this handle does not support queries. Those that are not brilliant innovators and/or deep thinkers, will not be reading this. They may have read half of the above, and then gone on to something that made sense to them. To those that are still with me, you may now be starting to realise just what the above system provides actually is. It provides the fundamental base upon which the cyberspace of the future, and the society of the future, can and I believe will be built. To an anthropologist, the most interesting point here may be that building the infrastructure which allows the individual to be self-regulating, would bring about massive changes – in the scales of needed law enforcement, in respect of personal privacy, and to what a young person sees as being possible for him in his lifetime. To a digital music distribution organisation, the most interesting point is that transactions may be restricted to those that maintain a reputation that does not include wholesale copyright infringements. And to law enforcers, it means that one has only to run a few queries, in order to remove from suspicion, all individuals who participate in the system (apart from those that did happen to be at the crime scene at the time of the murder). Participation is not mandatory, and for this reason classic detective work will still be necessary. But when this is necessary, detectives will have the support of thousands of law-abiding citizens, who can finally assist law enforcement, without loss of privacy, and without even needing to interrupt their schedule. Think of “Neighbourhood Watch” in cyberspace.. To make all of this happen, is going to need the co-operation of some of the best thinkers on the planet. Unfortunately, many of the greatest thinkers and innovators are busy on other projects. Ah well, maybe one day.. Glen McDiarmid 10th December 2005

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