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to balance the rights of individuals with the greatest public good. As Justice Breyer noted, “copyright's basic objective is creation and its revenue objectives but a means to that end.” (That is why, for instance, copyright protection does not last forever. More is gained in the long run from sharing.)
One of the great values of the Internet is that it has become a forum for borrowing, mixing, developing, and tinkering. After all, in both science and art, innovators build on each other's work. In the words of director Martin Scorsese, “The greater truth is that everything every painting, every movie, every play, every song-comes out of something that precedes it... It's endlessly old and endlessly new at the same time.” We must not make the mistake of entrenching the endlessly old at the expense of the endlessly new.
So the developing discipline of digital rights management, or DRM, needs to respect experimental, standing-on-the-shoulders-of-giants aspects of the Internet. DRM technology should be designed to respect legitimate needs and current rights of honest users (including backups, format changes, excerpting, and so on).
While the Internet certainly makes managing the rights for movies and music more complex, we believe that it is sounder economic and social policy to foster the architectural, business, political, and public freedoms that have enabled the Internet to be a place of innovation than it is to overly restrict the flow of digital information in an effort to meticulously account for every instance of the use of content.
What's more, the free flow of information is fundamental to democracy. In the shift to new forms of media and communication, neither technology nor law should limit the public's rightful access to information. Again, if we can go back to the intellectual well one more time, Justice Breyer rightly acknowledged that “the copyright laws are not intended to discourage or to control the emergence of new technologies, including (perhaps especially) those that help disseminate information and ideas more broadly or more efficiently.” Very true. So where do we go from here? We think there is a broad set of solutions in which the rights of content creators can be balanced with the common public interest in order to foster vibrant innovation. To that end, we would like to propose the following principles of digital rights management: • Innovation flourishes through openness-open standards, reference architectures,
and implementations. • All creators are users and many users are creators. • Content creators and holders of copyright should be compensated.
Respect for users' privacy is essential. • Code (both laws and technology) should encourage innovation.
Fair use is an important value in American jurisprudence. We want to encourage such usage, for academic purposes, for criticism, for parody --- and for uses we have not yet even considered. Yet in a technical world that enables perfect digital copies, fair use can terrify content owners. So there will need to be a balance struck: one that enables fair use, but also enables ways of determining who has abused the system.
Some content owners are pressing for DRM systems that would fully control the users' access to content, systems with user tracking that limit access to copyrighted material. We instead prefer an “optimistic” model whose fundamental credo is 'trust the customer.' Excessive limitation not only restricts consumer rights but also potential, as such solutions strongly interfere with the creation of future works and fair use of copyrighted content.
In an ideal world, solutions should encourage information flow, including the capability for creating future works. Certainly there will always be “leakage” and illegal behavior. Where that occurs there should be diligent enforcement of owners' legitimate rights. BUT, we think it is better that solutions provide auditing and accounting paths that, while respecting privacy of honest users, also permit copying, manipulation, and playback.
Systems that encourage the user to play with digital material, to experiment, to build and create, will be a win for consumers, for technology developers, and for content producers. The Supreme Court has spoken to these issues on various occasions and it did so with restraint most recently in the Grokster case. Now it is up to technologists, artists, developers, users, and rightsholders to move ahead in a balanced and forward-looking manner. If we do, it will be a win for the Internet and for society.