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.

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