SEATTLE — I’m here at the FTC Town Hall meeting on digital rights management at the University of Washington School of Law. I just finished appearing on a panel here (well, actually I just finished an enjoyable chimichanga at a great joint right off campus, I had to eat before posting).

The FTC is webcasting this event, and I understand they’ll be archiving the conference webcast at their web site.

I’ll be writing more on this conference soon, but below I’d like to put in a copy of my presentation. I spoke extemporaneously, but this is a close approximation:

Thank you, and thanks to everyone at the Federal Trade Commission and the University of Washington School of Law for this event and for inviting me here today.

We’re here today to discuss disclosure, specifically disclosure to consumers of their abilities that come with creative works.

Disclosure is critical to creators because the last thing we want to do is alienate anyone actually willing to pay for our works. Hopefully we’ll learn today that whatever confusion exists out there comes from numerous – and usually innocuous – sources, and that the marketplace is effectively addressing that confusion.

Let me begin by disclosing a bit about the Copyright Alliance. We’re a member organization of individual artists and creators as well as unions, companies and trade associations. We believe copyright is an engine for creativity, jobs and growth. We include visual artists such as photographers and illustrators — those in the newspaper, magazine and book publishing industries — songwriters and musicians — filmmakers and screenwriters — videogame and business software producers — and amateur and professional sports leagues.

Now you all have been sitting here for quite awhile, let me get you involved. Show of hands — how many of you have some comfort level with technology?

Okay, that’s most folks here, but I see a few shy folks not raising your hands. Let’s be honest, if you’re here in this room all day, you know technology. I’m sure everyone in the room here knows more about technology than me.

But I do know that technology is neither good nor evil, it just is. Take peer-to-peer technology. Some of my friends hate it for enabling massive infringement, but it can also empower global scientific research. P2P is neither good nor evil, it just is.

The same is true of digital rights management.

When done right, DRM can be very positive. It allows all of us as creators to manage the many rights given to us upon creation. Then we as consumers can enjoy works legally like never before. DRM empowers consumers of all creative works with legal choices that otherwise couldn’t exist. We could be talking about rental – subscription – streaming – other free and ad-supported — multiple downloads — duplications on multiple platforms. The list goes on and on.

We’re now seeing with DRM:

• More new business models rolling out constantly.
• Uses and permissions continuing to expand.
• DRM being increasingly unobtrusive, as with popular streaming services.

With streaming, whether you’re listening to Led Zeppelin on Pandora, watching “The Office” on Hulu, or watching the U Dub Huskies play on the CBS or NCAA web sites, you’re enjoying a positive user experience without even being aware of DRM.

Well, if you’re a Huskies fan and watched them lose to Purdue, then you didn’t have a positive user experience, but that’s not the fault of DRM.

So the Federal Trade Commission has invited us here today to talk about disclosure to consumers of these rights technologies.

But there are a lot of debates surrounding DRM. Some dislike technological protection measures protected by the Digital Millennium Copyright Act technological protection measures. Well, go to copyright.gov, read the latest requests for exemptions, and even ask the U.S. Copyright Office to testify at an upcoming hearing.

Some feel DRM interferes with what they believe to be fair use. And others may want legislation to restrict how technology can be used. But the FTC doesn’t regulate copyright law, fair use, or the DMCA. Instead, it protects all of us as consumers from unfair and deceptive trade practices; in other words, the important mission of ensuring we know what we’re getting when we pay for it.

They’re good at their jobs. In 2002 the FTC cracked down on a woman who went by the name of Miss Cleo. Miss Cleo claimed in commercials that she could see the future. The FTC judged her entire operation unfair and deceptive. The very FTC action proved the Commission right, because if Miss Cleo had been able to see the future she would have known the FTC was after her.

Miss Cleo intentionally created confusion, but confusion in the DRM space is largely unintended, and comes from numerous sources.

All of us creators are competing against free and unauthorized copies of our own works. The only way to hold on to legal customers and win over infringers is to provide a superior consumer experience.

Creating confusion about uses of works hardly does that.

We are also only one link in the supply chain. Works are distributed, hosted and duplicated legally by third parties with their own interests, and hardware manufacturers also have their own agendas. All of these players have their own interactions with consumers, often more directly than do creators.

And of course there are the advocates who make sweeping claims about what consumers have a “right” to do, even though the law has intentionally left that area vague and bright lines are rare. You can hardly blame a consumer for being confused with those mixed messages.

So disclosure is good, and confusion is bad. If the confusion concerns the FTC, what should it do?
Well, let me show you something.

This little folded sheet came with medicine I purchased. It’s the government-regulated warning notice. Looks small, right? But oh, it’s folded. And you’ll see it has tiny print, on both sides, and little chemical diagrams and formulas and scary-looking words. It’s reverse origami.

You know what I do with these things? I toss ‘em. I’m sure you do too.

Now that’s not good. The government is trying to help us here. The warnings on those sheets are far, far more important than any warning one might find on a movie or video game. Far more important. There could be a warning about potential side effects like death, or something even more serious, like a certain medical condition that lasts more than four hours.

So obviously sweeping regulation can be counterproductive. So how about standard disclosures through self-regulation by industry?

Actually, there’s some history of success with self-regulation. But those examples usually involve cases where there is a lot of uniformity across practices.

Remember what we’ve been talking about. All of those creative works, all of those distribution and hosting partners, all of that hardware, all of those bundles of permissions, and permissions continually increasing.

Standardized language would look like that medical warning sheet I threw away.

Remember, creators want to create a positive consumer experience to compete with free. That means disclosure, but it also means doing it in a way that is unobtrusive. Numerous pop-ups, click-throughs and warnings will drive customers back to infringement, where they don’t find those things, but should.

I feel good knowing that the FTC is vigilant when it comes to pursuing those being unfair and deceptive. But I think that the best summary of the situation comes from the Pirate Party of the United States.

That’s right. I’m about to endorse something written by an organization that advocates depriving creators of rights. Reporters, jot that down in your copybooks.

Specifically, I’m referring to the comments they filed in this proceeding. Unintentionally, I’m sure, they included in the filing their own internal comments, and here’s what the author wrote to colleagues:

“Part of me thinks this whole exercise (FTC workshop) is a moot point since the market place is deciding what works.”

Amen, Pirate Party.

And thank you, everyone, for listening.

This entry was posted on Wednesday, March 25th, 2009 at 3:45 pm by Patrick Ross and is filed under copyright law, copyright opponents, creators, drm, education, fair use, FTC, internet, licensing, market forces, p2p, piracy. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.