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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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March 21, 2005

A Declaration of Technology Independence

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Susan Crawford recently expressed well the sentiment held by many of us who oppose the FCC's broadcast flag technology mandate:

Don't do it. Don't let one industry (content, law enforcement, or telecom) control another (high-tech innovation) without a strong social consensus to do so.

In the same spirit, the Consumer Electronics Association (CEA) has just published a Declaration of Technology Independence -- a document "codifying" the principles in the Betamax ruling and warning the public against the content industry's hostile takeover of copyright's purpose. Writes CEA:

The debate is no longer just about piracy and profits. The unbalanced importance given to protecting intellectual property (IP) is stifling creativity and steering America toward a cold war on new technologies. For America to compete globally, the issues must be redefined, including striking the right balance between protecting IP and encouraging creativity and innovation.

We need to advance the fight against the unbalanced importance given to protection of IP and the increase in litigation against innovators. Public policies should encourage innovation and allow people to make full use of the opportunities provided by new technologies. IP issues need to be redirected to focus on encouraging and advancing creativity rather than on protecting existing business models.

Hear hear.

Read below for the Declaration itself. (And thanks to CoCo blog via Freedom to Tinker: Clips for the tip.)

WHEREAS, The Supreme Court in 1984 held that it is legal under the copyright law to sell a product if the product has substantial non-infringing uses.

This Betamax holding paved the way for the introduction of revolutionary technologies enabling recording, storage and shifting of content in time and space without the prior permission of the copyright holders.

Technologies such as MP3 encoding, the PC, the Internet and digital and audio recorders have supported a creative renaissance that has enriched the content community, empowered consumers and helped establish the United States as the world’s economic leader.

Our nation attracts the world's smartest and most innovative people because our society embraces and encourages entrepreneurship. Our nation of immigrants has created the world's largest technologies and communication systems. Currently, our leadership in innovation is being threatened by the content industry’s misguided attempts to protect intellectual property.

The recording and motion picture industries have often resisted, opposed or sought to stifle new technologies and products, despite the fact that these technologies transform markets and create new avenues for profitable content creation and distribution.

The influential content lobby has in many respects shaped the current state of copyright law. Copyright terms have been unreasonably extended so that the reporting of history itself is subject to permission. Makers of pioneering technologies are now routinely subject to expensive and time-consuming lawsuits that discourage innovation and impede U.S. companies from competing globally.

Moreover, false equations have been drawn between intellectual property and real property, noncommercial home recording and commercial piracy, and national creativity and sales of particular products and formats, such as CDs.

THEREFORE, as Americans concerned about preserving our rights of freedom of expression and striving to be leaders in advancing creativity, and who understand that new technologies promote and enhance creativity, communication and our national welfare, we hereby ask policymakers to:

Recognize that our founders instituted copyright law to promote creation, innovation and culture rather than to maximize copyright holders' profits, and that it can do this only if new technologies are not stifled and fair use rights are upheld;

Reaffirm the Betamax holding that a product is legal if it has significant legal uses;

Resist pleas by big content aggregators for new laws, causes of action, liabilities and ways to discourage new product introductions;

Re-establish the fundamental rights of consumers to time-shift, place-shift and make backup copies of lawfully acquired content, and use that content on a platform of their choice;

Re-examine the length of the copyright term and explore avenues for content to be reliably available for creative endeavors, scholarship, education, history, documentaries and innovation benefiting society at large; and

Realize that our nation's creativity arises from a remarkable citizenry whose individuality, passion, belief in the American dream and desire to improve should not be shackled by laws that restrict creativity.

Comments (3) + TrackBacks (0) | Category: Laws and Regulations


1. Scote on March 21, 2005 7:33 PM writes...

One of the first things we need to is to stop letting the content industry define the issues. A key case in point is the increasingly common use of the term “Digital Rights Management.” DRM is a euphemism that replaced the older term “Copy Protection,” which had negative connotations with consumers and didn’t adequately describe newer content control schemes. Yet in spite the increasing use of the term DRM, it is not an accurate way to describe content control from a consumer or user perspective since “Digital Rights Management” doesn’t actually allow consumers to manage anything.

A more accurate term needs to be used to describe content control technology in a way that consumers can relate to—a term that gives them an instant snapshot of what content control means. I propose that anyone who is a proponent of traditional copyrights stop allowing the content industry to frame the issue by using the term “DRM.” Instead, we should always refer to content restrictions as “Digital Rights Restriction.” That is what they are, and we can only have an honest debate if we talk about these restrictions as restrictions, not a form of management. Then people can decide if they want to trade their rights for the bait of lower prices or other such arguments.

This is about is taking a page from successful political campaigns where they take an issue and change people's attitude about it by simply calling it something else. I have some mixed feelings about the whole concept of "re-framing,” as it can be very Orwellian. This applies especially when the new term is misleading, as when the Republican Party started calling the "Estate Tax" (a tax that really only applies to estates worth millions of dollars) a "Death Tax" (which isn't accurate, because the Estate Tax doesn't tax "death," only estates far larger than the average American will ever have). What ever you think about politics, this technique of reframing the Estate Tax was extraordinarily successful. However, in the case of DRM, the framing has already been done by the Content Industry and the EFF and other organizations and individuals need to change the momentum.

By reframing content control from being “Digital Rights Management” to “Digital Rights Restriction” one can make people instantly aware of the issue. But, it isn’t enough to only educate the converted. Reframing the issue requires everyone to stop using the industry’s preferred term altogether. If people let the content industry choose the names for Digital Rights Restriction technologies, then they have already put rights advocates on the defensive. Imagine if the industry decides to call Rights Restriction technology “Digital Consumer Freedom of Choice” technology, or rename the Broadcast Flag the “Broadcast Freedom Flag.” That kind of naming is done all of the time, and if people let the industry do it, opponents will have to utter the industry’s talking points for them every time they mention the issue.

Fortunately, the issue of calling Digital Rights Restriction as such doesn’t require any such shenanigans. Content control technology is more accurately described from a consumer standpoint as Digital Rights Restriction, a term that is not only more accurate, it also instantly frames the issue in a way that anybody will recognize as bad.

If the EFF and other groups could stop using the term Digital Rights Management completely (except where necessary in legal documents and such) and always use the term Digital Rights Restriction, they could frame the issue in a way that it will be much more difficult for the Content Industry to defend. It will be harder for them to say that Rights Restrictions are a good thing, whereas "Rights Management" sounds vaguely responsible.

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2. Neo on March 22, 2005 7:54 AM writes...

Another common version I've seen is "Digital Restrictions Management" -- it even has the same acronym. In a similar vein ... "Treacherous Computing". If DRM is big brother, TC promises to be the Beast of Revelations itself, the dreaded 666 without which you can't do anything.

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3. Donna on March 22, 2005 11:24 AM writes...

SCote, I could not possibly agree with you more (though I actually think "DRM" has more negative connotations than "copy protection," which sounds like all it does is protect copyrighted work. Wouldn't that be nice?) Professor Felten had a nice series going a while back about precisely this issue (see

It's tough to implement, however: in press releases, for example, clarity is paramount. I personally pledge to replace misleading terminology whenever/wherever I can here @ Copyfight and elsewhere.

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