[A2k] Paris TACD Meeting: Draft 'understanding' on RMI and TPMs
Michelle Childs
michelle.childs@cptech.org
Tue Jun 6 10:47:08 2006
Dear All
Most of my comments have been overtaken and new , better ones rasied by
subsequent comments.
In relation to the privacy issues I support Phillipe's points in relation
to annonamised data. Would this solution work across all media?
While the initial draft is in relation to music, but we need to check any
models against other areas as Jamie pints out, for example publishing, as
the issues may be both more acute and the solutions may be the same or
different.
For example in relation to privacy issues ( and I regret Nick that I also
am not an expert but know a man who is!) in relation to non music content
the type of tracking used may raise greater concerns. e.g where DRMs are
entangled with intellectual consumption and monitor user behaviour they
invade a sphere with sensitive personal data potentially revealing
political convictions, religious or philosophical beliefs or sexual
orientation.
The consumer will often not be aware of these monitoring devices or the
information they collect and will have no control over its use by the DRM
controller
This is the wording used in the TACD resolution on the issue:
Privacy
DRMs should be certified as compliant with data protection rules or
privacy rights by the Data Protection Registrar or privacy enforcement
agency before they are introduced onto the market. By building privacy
interests into the design of the DRM, privacy rights may be enforced more
effectively.
In particular, DRM systems should not use registration, use data, or other
personal information for secondary purposes without first obtaining the
individuals' informed and voluntary consent. That is, the individual
should be able to use the media without consenting to marketing or other
secondary uses of their personal information.
In support of Peter's comments about some new thinking in major record
labels I thought it might be useful to draw your attention to the
comments of Mike Smith Managing Director, Columbia Label Group, Sony
in a discussion that I took part it in, on counterfeiting.
See here for full transcript:
http://www.newstatesman.com/200605220044
While many of his comments are familiar, he did for the first time start
to talk about alternative business models and flaws in the industry. He
also expanded on his points about records being loss leaders- i.e they
would be adverts for the real money making activities, touring and
merchandising. This model itself is of course is based on rewarding 'big
artists'.
While there were many flaws with the discussion process, not least the
fact that activists where only allowed to speak once and rightsholders
many times, it is nonetheless an indication that alternative models are
battling it out within music companies.Though as you will also note the
Trade body rep very aggressively came back with the need to sue everyone..
Michelle
> Dear Jamie, dear all,
>
> `The question is,' said Alice, `whether you CAN make words mean so many
different things.' `The question is,' said Humpty Dumpty, `which is to be
master-- that's all.'
>
> On this issue, I see a tendency among law scholars to be very
> flexible in what they can make words mean, but rather underestimate the
question of mastery of language outside the law arena.
>
> The way IT and rights industries position it and consumers perceive it,
DRM is access and usage control technology that serves to create
scarcity where there is none and harvest it with the help of various forms
of price discriminiation. A mechanism for recruiting user's
devices to enforce use restrictions, after sales, remote-controlled, for
eternity. To both sides it's a pain. Even in seemingly normal operation,
but certainly when something like the Sony rootkit case happens. To the
technologist, DRM is futile and stupid, to the
> campaigner it's evil.
>
> DRM is Digital Restrictions Management. This is a clear message that is
able to move people, as Philippe and Michelle have pointed out.
>
> In such a linguistic landscape, one can, of course, make DRM mean CC
licensing or anonymously counting downloads on ISP proxy servers. After
all, they concern Digital works, their Rights and their
> Management. But why would you want to? Isn't a term like metadata
sufficient?
>
> Why would you not want to? Because it destroys a distinction that is
important, for media logical and for campaign strategic reasons. It
undermines activities like FSF's http://defectivebydesign.org/
> campaign to eliminate DRM, and many similar efforts.
>
> When we handed over the first 40.000 signatures for retaining the
private copying exception in the digital copyright law to the German
minister of justice, Brigitte Zypries, her first question was 'If you
don't like today's DRM why don't you sit down together with industry and
develop a better one?' My answer then was: 'allowing companies to
remotely control user's machines is fundamentally flawed and can't be
improved.'
>
> Like Philippe, I've been campaigning for an anonymous levy solution to
the public goods problem of digital content as an *alternative* to DRM.
I'd hate to have to explain to people that it's not an
> alternative at all but just a different, better, passive kind of DRM.
>
> Like Michel, Philippe and Herve I would like to warn against
> stretching the meaning of DRM to include models we propose as
> alternatives.
>
> I also see Nick's point that language has to match the legalese of EUCD
and WCT, and that we have to be realistic to a certain degree if we want
to have an impact. But calling into question whether DRM, given that it
might be compatible etc., is fine, does not make us unrealistic.
>
> "Instead of being used to provide essential information about
> creative goods, and provide an interoperable infrastructure for the
development of new business models to make more flexible access to
cultural goods possible, these technologies are used by
> intermediaries to unreasonably restrict legitimate use by the public
without the consent or involvement of the creators."
>
> This implies that DRM in principle is able to support new business
models that we find acceptable, and more flexible access to cultural
goods. It implies that DRM is ok if it *reasonably* restricts
> legitimate use by the public and does so with the involvement of the
creators.
>
> I don't see why we would want to say something like this. That DRM is
any good for any business model is unproven. iTunes uses Digitial
Invconvenience Managment, eMusic.com, the No. 2 music download
> service, uses not technical restrictions at all on their files.
>
> The German indie label association VUT in January has clearly spoken out
against DRM:
> http://www.respect-the-music.com/index.html.en
>
> So have Canadian music creators:
> http://www.musiccreators.ca/
>
> Just as with stretching the meaning of DRM, I think we should be very
careful that the Paris Accord does not undermine efforts by groups and
people who should be supporting it.
>
> I would like to second Michel's suggestions. And as for realism. The WCT
proscribes "adequate legal protection" for TPMs used "by authors" for
restricting acts which are not "permitted by law." We've all pondered
these phrases numerous times. The hold great potential for critiqueing its
implementations. Especially in light of this year's review of the EUCD,
the Paris Accord should give a clear indication of the weaknesses of the
EUCD etc.
>
> Volker
>
>
> On 5 Jun 2006 at 13:36, James Love wrote:
>
>> Terry Fisher, who is coming to the Paris event, is looking at DRM
systems that are designed to do what Peter Jenner referred to,
>> helping creative persons and communities get paid for works, without
the types of anti-consumer features that most hollywood/RIAAA DRM
systems have embraced. I think the notion that DRM itself is not the
problem so much as the implementation of DRM schemes, is something worth
considering. This becomes more clear when one considers some of the
proposals that Terry has been proposing. Jamie
>> On Jun 5, 2006, at 11:01 AM, Philippe Aigrain wrote:
>> > Dear Peter,
>> >
>> > Your message highlights what is a key cause of misunderstandings in
this
>> > discussion. DRM, as pushed by both the media and technology supplier
industries, have nothing to do with managing rights for the sake of creator=
s
>> > or even for their own sake. The "rights management" part (RM) was
used as a
>> > convenient enveloppe for something entirely different, that is
technology-enabled copyright enforcement (control and locks on access and
>> > usage of digital works), what you would call "active DRM". As a
result there
>> > are anti-DRM demonstration and no-DRM movements that are conducted by
people
>> > (such as myself) who have of course nothing against artists being
remunerated
>> > based on observation of usage of their works (what you call
>> > "passive DRMs").
>> > The same people stood prominently for existing (radio, blank
carriers,
>> > photocopy, sometimes TV) legal licensing schemes that are based on
such
>> > passive observation, and are among the supporters of new forms of
legal
>> > licensing schemes such as the French proposal for a global license
covering
>> > non-commercial exchanges of music files over the Internet.
>> >
>> > I believe that using <DRM> in any positive sense will lead to our
position
>> > being instrumentalised by content and technology industry lobbies and
to
>> > severe opposition from the anti-DRM movements in France, Germany and
the US.
>> > If we want to go a step beyond this Newspeak element and the
>> > corresponding
>> > misunderstandings, it is also useful to acknowledge that the "passive
observation" of Internet-usage calls for observation methods that are
entirely different from -for instance- broadcast fees. It is no
longer a
>> > matter of observation of a few hundred or thousands broadcast sources
that
>> > are incorporated organisations, but a world in which everyone is a
source and
>> > destination, with all related matters of data privacy. That's why the
promoters of the Internet global licenses support redistribution
based on
>> > network traffic statistics that monitor upload and downloads
>> > (require schemes
>> > to prevent faking, but these schemes are certainly not more complex
than the
>> > radio and TV monitoring schemes that I saw funded by the EC research
programmes for years).
>> >
>> > So indeed, we should make clear that we support measurement of
audiences for
>> > works, as long as it respects user privacy and does not involve any
control
>> > on what happens on user machines. There is frequent arguing that
statistical
>> > network traffic analysis will be biased or disfavour creators with
small
>> > audiences. I believe it will be on the contrary be much more
>> > favourable to
>> > them, and certainly it can't be worse than what our present
collective
>> > societies achieve in this respect. When analyzing it, one should not
only
>> > consider the redistribution within one given distribution of
>> > attention, but
>> > also how the change in the distribution of attention. See:
>> > http://numenor.lib.uic.edu/fmconference/viewabstract.php?id=3D38 for a
detailed analysis on this respect.
>> >
>> > Finally, contrarily to what many state, one can have coexistence
between
>> > subscription pay artist communities, download pay (with acces control
but no
>> > further DRM usage control) and global licensing for non-commercial
exchanges.
>> > Together with direct payment to artists, and fees being paid to
competitive
>> > intermediaries as suggested by Jamie Love, they constitute
>> > important schemes
>> > to complement global licensing. In this respect see the proposal by
the
>> > would-be candidate for presidency S=E9gol=E8ne Royal :
>> > --------
>> > http://www.desirsdavenir.org/index.php?da=3D9&proposition=3D66
>> > Il nous faut sortir du mod=E8le =E9conomique unique, et le r=F4le de l=
=92Etat
est de
>> > conforter la coexistence entre plusieurs modes de r=E9mun=E9ration et =
de
financement :
>> >
>> > =95 Les revenus directs, la vente de fichiers se substituant
>> > progressivement =E0
>> > la vente de CD
>> >
>> > =95 Les revenus indirects : les interm=E9diaires (webradios, plates-
formes de P2P)
>> > reverseraient une partie de leur chiffre d=92affaires aux titulaires d=
e
droits
>> > en contrepartie du droit d=92exploiter commercialement les =9Cuvres. I=
l
faudra,
>> > pour cela, inciter les titulaires de droits =E0 licencier leurs
catalogues,
>> > selon des modalit=E9s compatibles avec l=92=E9conomie de nouveaux
>> > entrants et sans
>> > les assortir de DRM qui r=E9duisent l=92utilit=E9 pour les utilisateur=
s.
>> >
>> > =95 Des revenus =AB mutualis=E9s =BB, qu=92il s=92agisse de la redevan=
ce pour
copie
>> > priv=E9e, ou de la cr=E9ation, pour les =E9changes gratuits entre
>> > personnes, d=92un
>> > syst=E8me de licence globale forfaitaire.
>> >
>> > Pour avancer sur cette voie, une concertation approfondie devra =EAtre
enfin
>> > engag=E9e, bien s=FBr avec tous les acteurs concern=E9s et les citoyen=
s,
mais aussi
>> > avec nos partenaires europ=E9ens, une solution exclusivement
>> > fran=E7aise =E9tant
>> > difficile =E0 mettre en =9Cuvre.
>> > --
>> >
>> > Best,
>> >
>> > Philippe Aigrain
>> >
>> > Le Lundi 5 Juin 2006 15:55, vous avez =E9crit :
>> >> I find this stuff all very interesting, but without some sort of
'passive'
>> >> DRM it is hard to see how the creators or the rights holders will
get paid
>> >> for the use of their work. How else are we going to be able to
estimate
>> >> usage of particular works or recordings?
>> >> Does everyone feel that people who write and perform music should be
able
>> >> to make a living from doing this ?
>> >> Does everyone object to the idea of the creators and performers
getting
>> >> paid for broadcast usage as they do at the moment? If not can we
learn from
>> >> this example to look at the internet and other digital
>> >> distribution systems
>> >> ? In other words what is the real argument about? Is it about the
total
>> >> abolition of copyright, and if so what is the replacement method for
payhing the creative community, or don't we care ?
>> >> I certainly do not dispute the suggestion that the current
>> >> approach of the
>> >> corporate music industry is anathema, but what do we want in its
place, and
>> >> how,in practical terms, are we going to get it implemented?
>> >> This is going to be a challenging , but stimulating conference !
Cheers,
>> >> Peter Jenner
>> >>
>> >>> From: Philippe Aigrain <philippe.aigrain@wanadoo.fr>
>> >>> Organization: Personnel
>> >>> Date: Sat, 3 Jun 2006 15:39:21 +0200
>> >>> To: a2k@lists.essential.org
>> >>> Cc: nah.maillist@fastmail.net, "Michelle Childs"
>> >>> <michelle.childs@cptech.org>, "Benoit Machuel"
>> >>> <benoit.machuel@fim-musicians.com>, "Dominick Luquer"
>> >>> <dluquer@fia-actors.com>, "Peter Jenner"
>> >>> <peter.jenner@sinman.co.uk>,
>> >>> "David Stopps" <davidstopps@fmlmusic.com>, "Philippe Kern"
>> >>> <pkern@kernnet.com>, "Manon Ress" <manon.ress@cptech.org>, "James
Love"
>> >>> <james.love@cptech.org>, "Ben Wallis" <bwallis@consint.org>
Subject: Re: [A2k] Paris TACD Meeting: Draft 'understanding' on RMI and
>> >>> TPMs
>> >>>
>> >>> Further to exchanges betwene Nick and Michelle on this subject. My
impression is that Nick's proposal intention is good, but that it
takes a
>> >>> too specialised approach, not addressing some major concerns
related to
>> >>> TPM, DRMs or compulsory RMI. Here is a proposal for a streamlined
set of
>> >>> points, including one on this last aspect (impact on the freedom in
the
>> >>> overall information infrastructure) :
>> >>> ----
>> >>> 1- Rights information should be the enabler of a freely endorsed
social
>> >>> contract between creators and users, not a vessel to force TPMs and
DRMs
>> >>> on them. Thus, there should be no compulsory implementation of
rights
>> >>> information related checks, and no associated locks on usage.
>> >>>
>> >>> 2- TPM systems must be submitted to the a priori check of the
relevant
>> >>> information security and privacy or data protection authorities,
and can
>> >>> not be applied to works without the informed consent of their
creators.
>> >>> Commercial media carriers and services must provide adequate
information
>> >>> to consumers about usage limitations introduced by TPMs and DRMs.
>> >>>
>> >>> 3- Legal usage rights, for instance those expressed as exceptions
or
>> >>> limitations to copyright, should always be immediately effective in
relation to TPMs : any TPM must implement such rights, and TPMs
should
>> >>> not be protected against circumvention when such circumvention is
needed
>> >>> to legal or contractually authorised usage.
>> >>>
>> >>> 4- The protection of interoperable access to works (accross
devices,
>> >>> accross software platforms) must be such as to guarantee:
>> >>> - the ability of creators to make their works accessible to the
widest
>> >>> public including under licenses that grant free access and/or usage
rights, and without losing the benefit of redistribution of fees
collected under legal licensing schemes
>> >>> - the freedom of software writers to disclose and license under the
license of their choice the source code of software that achieves
this
>> >>> interoperability. ----
>> >>> Re the comments of Nick on compatibility with existing legal
treaties and
>> >>> laws: the only possible problem is with the first part of my point
3 (TPM
>> >>> must a priori ...) and EUCD. Leaving aside the fact that we should
never
>> >>> stop at considering needed changes in treaties and laws, the actual
transpositions for EUCD show that there is a wide margin of
interpretation in
>> >>> implementation. Ireland has implemented this first part of point 3,
and
>> >>> several other countries the second part.
>> >>> --
>> >>> Philippe Aigrain
>> >>>
>> >>> Le Vendredi 2 Juin 2006 18:29, nah.maillist@fastmail.net a =E9crit :
>> >>>> Firstly thanks very much for such a comprehensive reply and for
what it
>> >>>> is worth I think these are all good points.
>> >>>>
>> >>>> With respect to point 1, you understand corrrectly.
>> >>>>
>> >>>> I do understand that there are many groups which object to RMI,
TPMs,
>> >>>> and DRMs completely. Basically the point underlying the first
draft is
>> >>>> that it isn't realistic for countries to un-ratify the Internet
Treaties
>> >>>> (and certainly many representatives of music constituencies would
not
>> >>>> wish for that to happen), and therefore in those countries there
will be
>> >>>> protections of RMI and TPMs. The question is whether or not we can
agree
>> >>>> some common-sense regime to regulate the use of these
>> >>>> technologies so
>> >>>> that the positive outweighs the negative.
>> >>>>
>> >>>> 1(a) Of course. The use or non-use of RMI and TPMs is entirely
separate
>> >>>> from any other issue. If services want to use them, they'd have to
'follow the rules'. If they don't wish to, then they wouldn't.
That
>> >>>> said, RMI is just information and since quite a lot of that
information
>> >>>> could - and indeed is - of interest (artist name, composer,
performers,
>> >>>> date recorded, etc) providing it is accurate having RMI attached
to a
>> >>>> song isn't actually harmful, which leads us to point 1(b)
>> >>>>
>> >>>> 1(b) Of course we could put something in to cover the privacy
issue. It
>> >>>> may be useful to state that a model which relies upon actual usage
to
>> >>>> determine the level of royalties which go to which artists does
not
>> >>>> require information about the individuals who use a song.
>> >>>> However, I do
>> >>>> take the point that information on users would be held somewhere -
and
>> >>>> the disclosure of that information should be regulated. Could you
perhaps provide some language that covers this? I know that you're far
>> >>>> more familiar with this area than I am unfortunately.
>> >>>>
>> >>>> 1(c) Completely understand what you mean. My language here is
frankly a
>> >>>> bit cumbersome anyway. As with 1(b), could I bother you for
replacement
>> >>>> language?
>> >>>>
>> >>>> 1(d) Personally I agree completely. The question is: would such a
requirement actually fulfil the legal obligations that WPPT/WCT
parties
>> >>>> have to one another? And, in the EU, would the requirement breach
the
>> >>>> provisions of Directive 2001/29/EC? If the answer to is
>> >>>> yes,then we
>> >>>> cannot ask states to go this extra step. We'd have to come at this
a
>> >>>> different way.
>> >>>>
>> >>>> 1(e) Sorry to do this to you again, but any chance for a
>> >>>> sentence that
>> >>>> would work for you?
>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>> ----- Original message -----
>> >>>> From: "Michelle Childs" <michelle.childs@cptech.org>
>> >>>> To: "Nick Ashton-Hart" <nah.maillist@fastmail.net>
>> >>>> Date: Tue, 30 May 2006 08:46:06 -0400 (EDT)
>> >>>> Subject: Re: [A2k] Paris TACD Meeting: Draft 'understanding' on
RMI and
>> >>>> TPMs
>> >>>>
>> >>>> Nick
>> >>>> Thanks for this helpful first draft. I have a couple of initial
comments:
>> >>>>
>> >>>> 1) This is intended to be a section in a wider document, but it
may
>> >>>> nonetheless be helpful to put it in context. A number of groups
are
>> >>>> opposed to the use of TPMs or RMI's at all. This section, as I
understand
>> >>>> it is drafted on the basis that where they are used( and there are
many
>> >>>> on
>> >>>> the market now) , these principles should apply, rather than a
wholesale
>> >>>> endorsement of their use?
>> >>>>
>> >>>> 2) I think it would be helpful to add a few things to the
>> >>>> principles you
>> >>>> set out:
>> >>>>
>> >>>> a) A caveat that nothing in these principles would prevent the use
of
>> >>>> alternative models. For example some providers are using flat
fees.
>> >>>>
>> >>>> b)In relation to RMI's the issue may not be restricting access but
it
>> >>>> does
>> >>>> raise quite profound privacy issues. There needs to at least be a
reference to data protection principles. For more on this see the
TACD
>> >>>> resolution on TPMS.( www.tacd.org)
>> >>>>
>> >>>> c) you refer to 'Be used to prevent access, or make access
unreasonably
>> >>>> difficult, for a use that is covered by an exception or
>> >>>> limitation to
>> >>>> copyright in connection with the works and/or performances in
question
>> >>>> were they acquired in any non-digital form;' I am concerned that
using
>> >>>> as
>> >>>> a benchmark what is allowed for a non digital form may lock in
current
>> >>>> non
>> >>>> digital usage ( which are already inadequate for some digital
uses)
>> >>>> rather
>> >>>> than anticipate new uses- this can be dealt with by drafting.
>> >>>> Either
>> >>>> remove ref to non- digital form or preferably expand to cover
broader
>> >>>> consumer usage. See beuc digital rights campaign for examples of
what
>> >>>> some EU cosnumer orgs have been calling for in this area. Or are
you
>> >>>> intending this borader usage issue to be covered by the fair use
principle?
>> >>>>
>> >>>>
>> >>>> d) Remedies for breach. I think the current draft misses one of
the
>> >>>> most
>> >>>> important points behind the pre registration regulatory regime
idea,
>> >>>> which is that unless the TPM passes this clearance procedure they
DO NOT
>> >>>> BENEFIT FROM THE LEGAL PROTECION AGAINST CIRCUMVENTION. The draft
does
>> >>>> not
>> >>>> mention this but instead introduces a new idea that there should
be a
>> >>>> trustmark to show that it does comply. Leaving aside whether such
a
>> >>>> trustmark is necessary, such an omission weakens the idea, which
is to
>> >>>> both provide a process for review and wide public debate but also
an
>> >>>> incentive to comply with public interest and copyright exemptions.
>> >>>>
>> >>>> Under the US and EU copyright laws DRMs automatically aquire
legal
>> >>>> protection against circumvention. The regulatory clearance idea
is that
>> >>>> instead of provding automatic legal protection to DRM regimes,
vendors
>> >>>> of
>> >>>> DRM regimes or publishers are required to first register their
systems,
>> >>>> in order to apply for protection. Only registered systems would
benefit
>> >>>> from the anti cirumvention protections under copyright law.
Regsitration would not be automatic and would involve an
>> >>>> evaluation of
>> >>>> the
>> >>>> system and negotiations over features of the system to protect
user
>> >>>> rights.
>> >>>>
>> >>>> For example, Adobe might apply for anti-circumvention protection
for a
>> >>>> particular version of its ebook publishing technologies. In doing
so, it
>> >>>> could be asked to explain how the DRM regime will respond to
legitimate
>> >>>> uses of the works under public (rather than private) standards for
access.
>> >>>> The legal protection would not then be forthcoming, until the
regulator
>> >>>> was satisfied that the DRM regime did not inappropriately restrict
access
>> >>>> to the work
>> >>>>
>> >>>> Its therefore important that the link between registration and
protection
>> >>>> is restored in the draft.
>> >>>>
>> >>>>
>> >>>> e) While I support the call for a simplified and effective adr
>> >>>> system,
>> >>>> under the anti-circumvention provisions in EU and US law the
burden is
>> >>>> now on users to enforce their rights if a DRM scheme infringes
them,
>> >>>> rather than on rights holders to respect exceptions and prove
breach,
>> >>>> which is why its important to reverse some of the incentives as
above.I
>> >>>> also think that as a last resort, there should be the legal right
to
>> >>>> circumvent such drm, to make use of exceptions and limitations .
>> >>>>
>> >>>>
>> >>>> I hope these comments are helpful.
>> >>>> Michelle
>> >>>>
>> >>>>> --
>> >>>>> [ Picked text/plain from multipart/alternative ]
>> >>>>> Good morning A2Kers everywhere!
>> >>>>>
>> >>>>> For those that do not know me, I'm helping the TACD Secretariat
with
>> >>>>> the
>> >>>>
>> >>>> drafting of the Paris Accord for that meeting as it relates to
music. My
>> >>>> background is as a music manager, and also the former
>> >>>>
>> >>>>> Executive Director of the International Music Managers Forum
(which
>> >>>>
>> >>>> represents the managers of popular featured artists worldwide);
>> >>>>
>> >>>>> during my time at the IMMF - and I'm glad to say that the current
>> >>>>
>> >>>> management of the IMMF have continued to work in this area - I was
a
>> >>>> strong proponent of the audience - represented by consumer groups
- and
>> >>>> the artists - represented by themselves and by those who they have
charged with protecting their interests - working together for
their
>> >>>> mutual interests.
>> >>>>
>> >>>>> I believe that consumers and creators are natural allies who
should
>> >>>>> work
>> >>>>
>> >>>> together to see that the commercial exploitation of music serves
the two
>> >>>> ends of the "product chain" rather than serving those in the
middle who
>> >>>> are supposed to make the music of the world as accessible as they
can.
>> >>>>
>> >>>>> In January of this year, I was asked to speak to the Legal
Affairs
>> >>>>
>> >>>> Committee of the EU Parliament in a debate on the forthcoming
>> >>>>
>> >>>>> directive on IP enforcement. The speech that I made was written
by
>> >>>>
>> >>>> myself but substantial elements were contributed by the
>> >>>>
>> >>>>> representatives of audiovisual performers (FIA), independent
record
>> >>>>
>> >>>> producers (IMPALA) and music managers (IMMF). Part of that speech
was a
>> >>>> rather pointed condemnation of the way in which DRMs are being
used by
>> >>>> intermediaries not for ends which actually work for anyone, but
for ends
>> >>>> which don't really work - and do harm the interests of many.
>> >>>>
>> >>>>> Out of that grew an interest by NGOs connected with the music
world to
>> >>>>
>> >>>> seek a dialogue with consumer representatives on whether we can
jointly
>> >>>> agree an approach, politically, in relation to DRM technologies.
>> >>>>
>> >>>>> As a part of the drafting work I'm helping with for the TACD
Conference, I have prepared the text below as a starting place
for that
>> >>>>
>> >>>> discussion. The principles behind it come out of the speech I
mentioned,
>> >>>> but at this point it is time to see what others think of it.
>> >>>>
>> >>>>> It would clearly be a major thing if we could come out of the
Paris
>> >>>>
>> >>>> meeting with some kind of common understanding of how to deal with
DRMs,
>> >>>> and the protection of RMI and TPMs which underpin them. I offer
the text
>> >>>> below to you in the hope that it may get us at least part of the
way
>> >>>> "there". If we can get something that we can agree on, we can of
course
>> >>>> attach this to the Paris Accord, though I would submit that the
issues
>> >>>> surrounding these technologies are so contentious and important
that it
>> >>>> merits a separate document of this kind as well.
>> >>>>
>> >>>>> This text is not sponsored by any NGOs, nor has it been
>> >>>>> reviewed or
>> >>>>
>> >>>> agreed by any of them; It has been drafted by me, though I have
tried
>> >>>> to keep in mind the interests and views of both creators and
consumers
>> >>>> in drafting it. I'm sure that all will be very happy to tell me
just
>> >>>> what they think!
>> >>>>
>> >>>>> I'm forwarding the text to CPTech and TACD so that it can be made
>> >>>>
>> >>>> available for download since the A2K list doesn't allow
>> >>>> attachments.
>> >>>>
>> >>>>> -------------------------------------------
>> >>>>>
>> >>>>> Rights Management Information (RMI) and Technical Protection
Measures
>> >>>>
>> >>>> (TPM) when applied to works and performances under copyright are
increasingly protected by law in countries throughout the world,
to
>> >>>> comply with the provisions of the WIPO Internet Treaties of 1996.
These
>> >>>> technologies when used together are most commonly known as Digital
Rights Management (DRM) and have frequently been implemented in
ways
>> >>>> both Consumers and Creators see as harmful to their interests.
>> >>>>
>> >>>>> Instead of being used to provide essential information about
creative
>> >>>>
>> >>>> goods, and provide an interoperable infrastructure for the
>> >>>>
>> >>>>> development of new business models to make more flexible access
to
>> >>>>
>> >>>> cultural goods possible, these technologies are used by
>> >>>>
>> >>>>> intermediaries to unreasonably restrict legitimate use by the
public
>> >>>>
>> >>>> without the consent or involvement of the creators.
>> >>>>
>> >>>>> There is a clear failure of the marketplace to provide
>> >>>>> implementations of these technologies that are constructive,
interoperable, reasonable, and equitable. Despite repeated calls
for a
>> >>>>
>> >>>> rethink of the current uses of these technologies by the consumer
movement, creators themselves, and even independent phonogram
>> >>>>
>> >>>>> producers, the abuse of these technologies continues =96 indeed, i=
n
many
>> >>>>
>> >>>> countries, the abuses continue to become more serious.
>> >>>>
>> >>>>> Creators and Consumers agree on the following principles and
believe
>> >>>>
>> >>>> that they should be given the force of law in any part of the
world
>> >>>>
>> >>>> where RMI and TPMs are themselves the subject of legal protection:
>> >>>>> That the use of RMI to provide information about a work or
performance, those who created it, and their rights in their
creations, is useful, as long as:
>> >>>>> The information is accurate, and;
>> >>>>> The RMI is used to provide information, not as the basis for a
TPM.
>> >>>>> That
>> >>>>
>> >>>> RMI be used constructively =96 such as providing the
>> >>>>
>> >>>>> =91informational backbone=92 facilitating the development of new
business
>> >>>>
>> >>>> models that make creative goods available more flexibly, to more
of the
>> >>>> public, by helping the development of systems to equitably
>> >>>>
>> >>>>> remunerate creators and rights-holders based upon actual uses of
>> >>>>
>> >>>> cultural goods in the digital environment equitably and
>> >>>> transparently.
>> >>>> That the abusive use of TPMs be prevented by obligating vendors of
these
>> >>>>
>> >>>> technologies to assure that they cannot:
>> >>>>> Prohibit, or limit, access and/or use which is lawful with
respect to
>> >>>>
>> >>>> the works and/or performances being protected,
>> >>>>
>> >>>>> Be used to prevent access, or make access unreasonably
>> >>>>> difficult, for a
>> >>>>
>> >>>> use that is covered by an exception or limitation to copyright in
connection with the works and/or performances in question were
they
>> >>>> acquired in any non-digital form;
>> >>>>
>> >>>>> Prohibit, or limit, access and uses which would be possible when
the
>> >>>>
>> >>>> same materials are acquired in physical form,
>> >>>>
>> >>>>> Prohibit, or limit, access and uses which would be viewed as
=93fair use=94
>> >>>>
>> >>>> or =93fair dealing=94 by a reasonable person;
>> >>>>
>> >>>>> Be deployed without the active, informed consent of the
>> >>>>> creators and
>> >>>>
>> >>>> relevant rights-holders;
>> >>>>
>> >>>>> Fail to interoperate across devices like personal computers,
mobile
>> >>>>
>> >>>> communications devices, and consumer electronics which might
>> >>>>
>> >>>>> reasonably be used by the public;
>> >>>>> Prevent access and use, or make access and use difficult, to
anything
>> >>>>
>> >>>> that is in the public domain;
>> >>>>
>> >>>>> The extent and nature of any limitations these technologies may
impose on the user should be clearly visible on any product or
service so that the members of the public may make informed
choices;
>> >>>>>
>> >>>>> We believe that an essential component of giving legal effect to
the
>> >>>>
>> >>>> above is the following:
>> >>>>> A regulatory regime that requires the application for advance
registration and testing of new TPMs by an independent agency to
ensure
>> >>>>
>> >>>> that they comply with the rules governing their use as
>> >>>>
>> >>>>> outlined above. Successfully passing the tests should allow the
vendor of the TPM to display a mark that makes clear that the TPM
has
>> >>>>
>> >>>> been approved and certified, giving the public, and the creator
>> >>>>
>> >>>>> community, confidence that any restrictions imposed by the TPM
are both
>> >>>>
>> >>>> within the law and reasonable;
>> >>>>
>> >>>>> In the instance that, despite the safeguards above, a TPM is used
which
>> >>>>
>> >>>> breaches the above principles, an affordable, expeditious, and
transparent complaint mechanism is available for members of the
>> >>>>
>> >>>>> public and the creator community to use. The process should be
capable of requiring that breaches of the above principles by
vendors
>> >>>>
>> >>>> and/or those who make use of infringing TPMs must be remedied, and
where
>> >>>> relevant, egregious infringements allow for fines to be levied
which are
>> >>>> sufficient to form a deterrent to future infringements.
>> >>>>
>> >>>>> --
>> >>>>> Regards,
>> >>>>>
>> >>>>> Nick Ashton-Hart
>> >>>>> PO Box 32160
>> >>>>> London N4 2XY
>> >>>>> United Kingdom
>> >>>>> Tel: +44 (20) 8800-1011
>> >>>>> Fax: +44 (20) 7681-3135
>> >>>>> mobile: +44 (7774) 932798
>> >>>>> email: nashton@spamcop.net
>> >>>>> Win IM: ashtonhart@hotmail.com / AIM/iSight: nashtonhart@mac.com
/
>> >>>>
>> >>>> Skype: nashtonhart
>> >>>>
>> >>>>> Online Bio: https://www.linkedin.com/in/ashtonhart
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>> _______________________________________________
>> >>>>> A2k mailing list
>> >>>>> A2k@lists.essential.org
>> >>>>> http://lists.essential.org/mailman/listinfo/a2k
>> >>>>
>> >>>> --
>> >>>> Michelle Childs -Head of European Affairs
>> >>>> Consumer Project on Technology in London
>> >>>> 24, Highbury Crescent, London, N5 1RX,UK.
>> >>>> Tel:+44(0)207 226 6663 ex 252.
>> >>>> Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
>> >>>> http://www.cptech.org
>> >>>>
>> >>>> Consumer Project on Technology in Washington, DC
>> >>>> 1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
>> >>>> +1.202.332.2670,Fax: +1.202.332.2673
>> >>>>
>> >>>> Consumer Project on Technology in Geneva
>> >>>> 1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland Tel:
+41 22 791 6727
>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>>
>> >>>> _______________________________________________
>> >>>> A2k mailing list
>> >>>> A2k@lists.essential.org
>> >>>> http://lists.essential.org/mailman/listinfo/a2k
>> >>>> -------------------------------------------------------------------
-----
>> >>>> --- ------------ Orange vous informe que cet e-mail a ete
controle par
>> >>>> l'anti-virus mail. Aucun virus connu a ce jour par nos services
n'a ete
>> >>>> detecte.
>> >>>
>> >>> --
>> >>> Philippe Aigrain
>> >>> (message personnel)
>> >>
>> >> ---------------------------------------------------------------------
------
>> >> ------------ Orange vous informe que cet e-mail a ete controle par
l'anti-virus mail. Aucun virus connu a ce jour par nos services n'a ete
>> >> detecte.
>> >
>> > --
>> > This a personal correspondance that does not necessarily
>> > represent the official position of the Society for
>> > Public Information Spaces
>> > _______________________________________________
>> > A2k mailing list
>> > A2k@lists.essential.org
>> > http://lists.essential.org/mailman/listinfo/a2k
>> >
>> ---------------------------------
>> James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040
>> "If everyone thinks the same: No one thinks." Bill Walton
>> _______________________________________________
>> A2k mailing list
>> A2k@lists.essential.org
>> http://lists.essential.org/mailman/listinfo/a2k
>
>
> --
> WOS 4. Information Freedom Rules
> 14-16 Sept. 2006, Berlin, http://wizards-of-os.org
> iRights http://iRights.info
> copy =3D right http://privatkopie.net
> home: http://waste.informatik.hu-berlin.de/Grassmuck
>
>
>
--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org
Consumer Project on Technology in Washington, DC
1621 Connecticut Ave, NW, Washington, DC 20009 USA .Tel.:
+1.202.332.2670,Fax: +1.202.332.2673
Consumer Project on Technology in Geneva
1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727