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.

First, the authors -- Jerry Berman, David Sohn and Michael Steffen -- make clear the importance of copyright in the digital age, and outline several keys to preserving that right: 1) Punishing bad actors. 2) Encouraging a marketplace of content-protective and consumer-friendly digital rights management (DRM). 3) Better public education by trusted voices. Already CDT is positioning itself more toward the center than another prominent civil liberties group participating in this debate.

Berman, Sohn and Steffen also warn against some dangers of overly aggressive copyright protection. They decry: 1) Burdensome technical design mandates. 2) Broad liability for intermediaries or equipment makers. 3) ISP blocking and filtering mandates. 4) Limiting content delivery to closed networks.

Again, I agree with all of these points, but the devil is always in the details, so let's take a look in more detail. Let's start with #1 in protecting content, punishing bad actors. CDT backs the civil suits by RIAA, calling them "essential." Good so far.

They also back "secondary liability for certain bad actors." Okay, which bad actors? The paper isn't clear, but I'll forgive the authors because it's a tough line to draw. During the Induce Act debate, CEA presented a bill to counter the Hatch bill that the CDT said at the time was preferable. It targeted bad actors, but in my opinion was written in such a way that even the most legally ignorant P2P software maker could have evaded its grasp. Still, that was meant as a starting point for negotiations, and accepting the possibility of secondary liability is positive.

They also favor expanding prosecutorial power but in a way that doesn't unduly criminalize file-sharers. Thus, they welcome language in the 2004 PIRATE Act that would have given DoJ civil enforcement powers so they could go after known violators without having to send them to prison. That always seemed to make a heck of a lot of sense to me, but some of CDT's allies opposed the PIRATE Act.

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.

In the next three weeks, the High Court is going to issue its decision in MGM v. Grokster. For the weeks and months following that decision, whatever it says, the decibel levels in this debate will be unbearable, and I doubt much worth listening to will be said. So I find it refreshing to read an attempt to find a reasoned position in the copyright debate. My colleagues Jim and Solveig filed in Grokster, so did CDT. There were similarities and differences in their filings, but that's all to the good. There remains room for a middle ground in this debate.

posted by Patrick Ross @ 5:07 PM | Internet: P2P, Search Engines...

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