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Features: Analysis of the Seven Principles from the RIAA, BSA and CSPP
Posted by Ernest Miller on Wednesday, January 15 @ 12:08:52 EST Consumers
Both WIRED (Downside to Digital Rights Pact?) and C|Net News' Declan McCullagh (Copyright truce excludes key voices) report on the skepticism greeting the announcement of a "truce" between technology and record companies, see (Some "Truce"). Below, an analysis of the seven "Technology and Record Company Policy Principles" [PDF].

1. Public Awareness. Technology and record companies should jointly encourage and promote consumer awareness campaigns about the rights and wrongs of Internet use and digital copying. Such campaigns should be funded privately, but joint approaches to Congress for a federal role should also be considered.
Great, government sponsored public service ads for the copyright industry - "Just Say No to P2P." These companies can't distance themselves enough from the government teat to say they won't ask for government money. How else will the government help in this campaign other than by forking over tax revenues to corporations? If record company stars can't convince the public not to share music, will Laura Bush as a spokesperson be any better?

Heck, I might be a little more favorably inclined to this if I thought they were serious about explaining the rights and wrongs of copyright. First, it is highly unlikely that they will be spending much time discussing the "rights ... of Internet use and digital copying." Where are the public service announcements that celebrate fair use? Where are the public service announcements that promote time- and space-shifting? Instead, we will get misleading PSAs that attempt to convince the public that many of thing completely legitimate things they do are the equivalent of piracy.

Second, a public service campaign is unlikely to be very effective at explaining copyright law. Thanks to previous industry bargains ratified by the Congress, you need some serious study time to understand the law. Performance rights, mechanical rights, compulsory licenses, what a mess. Perhaps one of the principles should be to reform copyright law so that it makes more intuitive sense.

And, when did "digital copying" become a noun? Will we soon have the retronym, "analog copying."? The distinction, while always decried by the content industry, is not terribly important. See, the section on the "analog fallacy" in (The LawMeme Guide to Spider-Man and Star Wars Bootlegs).

2. Consumer Expectations. Technology and record companies agree that meeting the needs and expectations of our customers is critically important to the viability of our industries. Consumers are eager to enjoy new music and new technologies and record and technology companies are already addressing those needs. How companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and should not be legislated or regulated.
Well, this is the largest load of horse puckey in the document. Yeah, the RIAA has been doing a great job in meeting the needs and expectations of consumers. Pull the other one.

The entire copyright industry is a creation of government legislation and regulation. Without the Copyright Act, there would be no copyright industry (though there would still be content). I don't remember the copyright industry complaining when Congress consistently took away consumer's rights over the past century or so. In any case, if government has to enforce the use of unilaterally imposed digital rights management schemes, isn't that regulation of consumer expectations? For more on this point, see Ed Felten (When Is a Regulation Not a Regulation?).

The real purpose of this paragraph is simply to telegraph the public relations stance of this coalition - they're for markets to solve the problem, not the government. If you are against them, you are against market-based solutions, which makes you some sort of communist or something.

3. Enforcement. Technology and record companies support private and governmental enforcement actions against infringers.
And where are all the enforcement actions from the record companies? If they really supported enforcement actions, why is the RIAA fighting with Verizon over customer data? Verizon says they will turn over customer data on copyright infringers if the record companies bring an enforcement action. However, the record companies want customer data without initiating an enforcement action. This policy plank is simply a lot of hot air ... except for getting government to do the dirty work. The truth is, although the record industry calls file sharers "pirates," they don't want to sue their own customers. The record industry would rather have the government bring a criminal action, so that the record companies don't get the blame. Tough, says I.
4. Technical Protection Measures. Technology and record companies have collaborated to develop, are using, and support the use of unilateral technical protection measures that limit unauthorized access, copying or redistribution of products without government-imposed requirements for the incorporation of specific functionality in a computer or other device. Legislation should not limit the use or effectiveness of such measures. Technology and record companies agree that product labeling should endeavor to clearly inform consumers of the playability of content on devices they might own or use.
I imagine "limit the use or effectiveness of such [DRM] measures" means by letting people crack the systems legally. Strange way of phrasing it though. Also, this principle is rather vague on what "accesss" means. Currently, according to the courts, "access" means any "use." I doubt this coalition would disagree.

The labeling requirement sounds good, but it is rather weak. It only talks about "playability." What about labels that explain all the restrictions DRM puts on the consumer? Whether it is possible to play something in another country, or skip ads, or copy for home backup, etc.?

5. Actions by Rightholders. Technology and record companies support technical measures to limit illegal distribution of copyrighted works, subject to requirements that the measures be designed to be reasonable, are not destructive to networks, individual users’ data or equipment, and do not violate individuals’ legal rights to privacy or similar legally protected interests of individuals.
And what would these technical measures be? Spoofing, sure, no one seems bothered by that. But, strangely, the RIAA never seems to have an answer for what sort of self-help they want to use, although they hint at denial-of-service attacks (which would seem to be destructive to networks at the very least). Until the record companies can give us some concrete examples of what self-help they intend to use, this principle is meaningless.
6. Mandates. Technology and record companies believe that technical protection measures dictated by the government (legislation or regulations mandating how these technologies should be designed, function and deployed, and what devices must do to respond to them) are not practical. The imposition of technical mandates is not the best way to serve the long-term interests of record companies, technology companies, and consumers. Technology can play an important role in providing safeguards against theft and piracy. The role of government, if needed at all, should be limited to enforcing compliance with voluntarily developed functional specifications reflecting consensus among affected interests. If government pursues the imposition of technical mandates, technology and record companies may act to ensure such rules neither prejudice nor ignore their interests.
Ah, here is the crux of the matter. The real intent of this coalition is to give up on a questionable fight for more laws and defend the Digital Millennium Copyright Act's anti-circumvention provisions with a passion. Why isn't this government regulation in contravention of plank 2 above? I do like how they say the role of government, "if needed at all, should be limited to enforcing compliance with voluntarily developed functional specifications reflecting consensus among affected interests." How coy. Ed Felten notes that this simply prevents the government from mandating where there is no disagreement (When is a Mandate Not a Mandate?).

And what is this about consensus? Did anyone ask the consumers when they developed these new specifications? Aren't consumers "affected interests"?

Did they really need a set of policy principles to let us know that "If government pursues the imposition of technical mandates, technology and record companies may act to ensure such rules neither prejudice nor ignore their interests."? I kind of assumed they would act to ensure their interests at all times regardless.

7. Improved Public Dialogue. Technology and record companies agree to engage in constructive dialogue and look for common ground in policy debates.
Public dialogue, but without the public. Just the way corporations like it. Still, a masterful plank from a public relations point of view.
 
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Related Links
· WIRED
· Downside to Digital Rights Pact?
· C|Net News
· Declan McCullagh
· Copyright truce excludes key voices
· Some "Truce"
· Technology and Record Company Policy Principles
· The LawMeme Guide to Spider-Man and Star Wars Bootlegs
· When Is a Regulation Not a Regulation?
· Ed Felten
· When is a Mandate Not a Mandate?
· More about Consumers
· News by Ernest Miller


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Re: Analysis of the Seven Principles from the RIAA, BSA and CSPP (Score: 0)
by Anonymous (Name Withheld on Advice of Counsel) on Wednesday, January 15 @ 17:37:04 EST
I imagine "limit the use or effectiveness of such [DRM] measures" means by letting people crack the systems legally. Strange way of phrasing it though.
I think this is phrased oddly to disguise what it really is: a declaration of war on any legislation that would attempt to explicitly restore fair use rights. With Reps Boucher and Doolittle about to introduce such a bill in the US House, the RIAA may be afraid that the Congress will decide fair use must not be prevented technologically. I don't think they've got anything to worry about, since SCOTUS has just given Congress the green light to ignore the public good in copyright issues.


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Re: Analysis of the Seven Principles from the RIAA, BSA and CSPP (Score: 1)
by JohnMitchell on Thursday, January 16 @ 15:18:02 EST
(User Info | Send a Message) http://interactionlaw.com
For another analysis of the seven principles, see "Tech and Record Company Policy Principles Fall Short" at http://interactionlaw.com/interactionlaw/id8.html or read below:

Tech and Record Company Policy Principles Fall Short
By John T. Mitchell*
January 14, 2003

With much fanfare, the Recording Industry Association of America, Business Software Alliance, and Computer Systems Policy Project announced agreement on seven principles that will govern their activities over the next two years. Though cloaked in the language of consumer benefits, these principles fall far short of demonstrating that the recording industry has heard any wake-up call. The principles parrot the same old story, asking Congress to leave them alone as they continue to find ways of selectively voiding the limits of copyright law and avoiding the limits of competition law. Let’s review them:

1. Public Awareness. Do we really need another copyright “education” campaign run by the RIAA? This is the same RIAA that pretends Section 1008 of the Copyright Act, which specifically authorizes non-commercial copying of sound recordings, does not exist. This is the same RIAA that believes that the first sale doctrine codified in Section 109 of the Copyright Act may be voided by technological restraints and “licensing” agreements. It is the RIAA that needs to learn to respect the bounds of copyright law.

2. Consumer Expectations. They claim to want to meet consumer expectations, but insist that how to do so “is a business decision that should be driven by the dynamics of the marketplace, and should not be legislated or regulated.” They should heed their own advice. MusicNet and pressplay, the two joint ventures owned and operated by the RIAA membership, account for 85% of the market, and appear to have as their primary purpose preventing the dynamics of the marketplace from working freely. Perfectly lawful competitive activity – such as listening to your own copies of sound recordings as long as you own them, selling or lending used copies that were lawfully made, obtaining legal copies from myriad freely competing retailers – is being suffocated. No wonder they want the government to turn a blind eye!

3. Enforcement. They support private and government enforcement actions against infringers. That’s fine, but why not also support enforcement actions against copyright holding companies that infringe upon rights that belong to the public? Why not agree to stop taking rights away from the public, thereby enlarging their copyrights beyond the limits established by Congress? The right to listen to music has never belonged to the copyright owner, but many of the major copyright holding companies are attempting to use their copyrights as leverage to charge for the exercise of rights that don’t belong to them.

4. Technical Protection Measures. They ask that legislation not limit the use or effectiveness of technical measures “that limit unauthorized access, copying or redistribution.” Their choice of the word “unauthorized” instead of “unlawful” is telling. It seems clear that the RIAA desires to continue to use technological measures to interfere with (and perhaps charge for) perfectly lawful access, copying or redistribution which the Copyright Act gives them no right to control, such as preventing a consumer from accessing their own lawfully made copies, or preventing consumers from physically redistributing those lawfully made copies to others.

5. Actions by Rightholders. Here, they finally got it right. This provision is limited to use of technical measures that limit “illegal” distribution only. They pledge to do so with respect for “individuals’” legal rights to privacy “or similar legally protected interests of individuals.” The choice of words in that last clause is pregnant with questions. Does this mean that they will not respect the legally protected interests of companies, such as the many music retailers online and of

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