I just came from a compelling event hosted by a think tank, the Information Technology and Innovation Foundation. ITIF was promoting a paper released today by technologists titled “Steal These Policies: Strategies for Reducing Digital Piracy.” The paper is a must-read; let me summarize the event, which had a very important theme — namely, that the best way to reduce online infringement is to encourage continued advancement in legal models while making illegal alternatives less desirable.

Imagine four scenarios involving access to copyrighted works. In the first scenario, pre-1999, there was very little legal access to copyrighted works online, but infringement was challenging too. Napster moved us to the second scenario; infringement was now easy, but legal options remained few. With the launch of iTunes and the many legal services for all copyrighted works that have followed, we’ve moved into the third scenario, where both legal and illegal services are plentiful and easy. (I will be blogging separately on a presentation I gave recently at the Federal Trade Commission on how for-profit companies are making it easier than ever to infringe.)

The goal of Daniel Castro of ITIF and the paper’s other authors is to show a path to a fourth scenario, one in which legal becomes more accessible and easy and the alternative, illegal, becomes less available and easy. Unless you believe in some inherent right to access creative works without permission or compensation of owners (and ITIF’s president noted that philosophy is present online among individuals he called “cyber-libertarians”), it’s hard to see how you could argue against the desirability of this fourth scenario. In this scenario, even though there may be some cost to consumers for access to legal works (even if it’s just an occasional ad), most will still favor the legal over the illegal, preserving the rights of creators online, including their right to pursue distribution avenues that they feel will encourage future creative production.

Mr. Castro summarized watermarking, fingerprinting and use of metadata as ways that copyrighted works are, now, being robustly tracked and rights protected online. He noted how technologies are improving rapidly in this area, reducing error. He also outlined some ways policymakers can help reduce infringement while still ensuring consumer privacy:

* The Federal Communications Commission could encourage innovation in anti-piracy techniques by ISPs and others while also calling for consumer safeguards and appeals processes.
* The National Science Foundation could sponsor anti-piracy research.

Mr. Castro also encouraged inter-industry cooperation among copyright owners, ISPs, financial institutions (for example, credit-card companies being used by commercial pirate sites to conduct illegal transactions), ad resellers (selling ads on pirate sites, which profits from illegal activity but also fools consumers into believing such sites are legitimate) and others. International coordination is also key, he said, with countries needing to take responsibility for online infringement being disseminated from within their borders. And of course, he said copyright owners need to encourage education, because as anti-smoking and other campaigns have shown, social norms can change over time. That is what we are facilitating with our Copyright Alliance Education Foundation.

ITIF President Rob Atkinson framed the debate properly. Acknowledging that there is some gray area as to what type of access and transfer is permissible with copyrighted works and what isn’t, he said the debate doesn’t have to always involve the gray area. He urged everyone to agree that there are infringements occurring online that are in no way defensible, using as an example someone downloading or uploading the Lord of the Rings trilogy with Pirate Bay.

I often write on this site along these lines, trying to encourage us to at a minimum agree on what Dr. Atkinson calls “black-and-white” infringement, but it seems to some who view copyright as an obstruction, having to make that admission is too difficult; the emphasis is always to push the debate back to the gray. Kudos to Dr. Atkinson and ITIF for noting that this particular emperor has no clothes; policymakers can and should begin their focus on how to reduce the black-and-white infringement. He put out several scenarios, from encouraging ISPs to block domains that are clearly criminal pirate operations to targeting financial institutions facilitating commercial piracy.

Dr. Atkinson criticized those who say that even one error in infringement targeting online means that such innovation shouldn’t be permitted or practiced. He has spent his career focusing on innovation, and understands that no technology will ever be perfect. But he cited ongoing efforts, including by commercial providers such as McAfee, to target online viruses. “Have we solved the problem of viruses?” he asked rhetorically. No, he answered, and we never will, but we don’t stop trying.

One message from ITIF today was that it’s not enough for FCC Chairman Julius Genachowski to say that net neutrality rules should focus only on legal, not illegal, activity. The FCC needs to pro-actively make clear that ISPs and technologists should be free to innovate in the area of online enforcement of copyright, that if they are transparent and respectful of customers they will not have a Sword of Damocles hanging over their heads in the form of net neutrality rules written solely to prevent bad behavior with legal content.

I couldn’t agree more, and it is the point I made, far less eloquently, when I spoke at an FCC workshop on the subject in September.

Thank you to ITIF for an enlightening discussion and valuable report.

Share It

Hide Sites

This entry was posted on Tuesday, December 15th, 2009 at 12:56 pm by Patrick Ross and is filed under FCC, advertising, copyright law, copyright opponents, education, events, network neutrality, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.