Open letter from CDT on broadcast flag

[David Farber <dave () farber net>]

Begin forwarded message:

From: David McGuire <dmcguire () cdt org>
Date: August 25, 2005 4:31:09 PM EDT
To: farber () cis upenn edu
Subject: Open letter from CDT on broadcast flag


Hi David,

FYI. If you could post this on the IP list, that'd be great.

Thanks
Dave

August 25, 2005

Dear friends,

We've learned an important lesson this week: never elaborate on your  
previously stated positions in August, when some reporters are trying  
to make news. After we released our broadcast flag paper earlier this  
week -- a paper that echoed CDT's longstanding position on how a  
broadcast flag regime should be limited to protect innovation and  
fair use -- at least two publications ran stories saying CDT had  
reversed its stance and was now supporting broadcast flag legislation.

Let me be clear: CDT is not endorsing a federally mandated broadcast  
flag regime.  Our position has not changed.
CDT has always taken a pragmatic approach to the broadcast flag (as  
we do with other issues). Rather than simply opposing the flag, CDT  
has worked from the outset of the broadcast flag debate to support  
policies that would limit the negative impact of any potential flag  
regime on openness and innovation on the Internet. See, for example,  
CDT's Feb 2004 Policy Post: http://www.cdt.org/publications/ 
policyposts/2004/4 , which reflects CDT's then -- and current --  
position.  When the Federal Communications Commission was developing  
its flag rule, CDT submitted extensive recommendations on how to  
design the flag so that it would be minimally disruptive both to  
users and to technology developers. The FCC took some of our  
recommendations and rejected others.  In our view, the final product  
contained inadequate protections for technologists and users.  CDT is  
preparing a document -- to be released in the next few weeks --  
discussing the shortcomings of the FCC proceeding and the lessons to  
be drawn. See also CDT's November 2003 Policy Post on the flag,  
http://www.cdt.org/publications/pp_9.21.shtml, which reflects CDT's  
then -- and current -- position.

Soon after a federal court overturned the FCC's rules, supporters of  
a flag regime began pushing for flag legislation on Capitol Hill. We  
do not know when, if ever, flag legislation will come up in Congress,  
but we do know from extensive experience that legislation can move  
very quickly, particularly near the end of a congressional session.  
If we refrained from commenting until after we saw bill language, it  
could well be too late to educate lawmakers and their staff on the  
issues at stake.

So, CDT issued a document this week that we hope lawmakers will draw  
on IF they choose to draft broadcast flag legislation. We call for  
important limitations on the flag rules and on the power of the FCC  
to restrict technology. Although it is still vital to ask whether it  
is worthwhile to have any flag regime at all, we believe that a flag  
regime that includes our guidance would be far less damaging than one  
that gives the FCC undefined authority.  The recommendations  
summarized in the paper we released this week are drawn from our  
December 2003 report  "Implications of the Broadcast Flag: A Public  
Interest Primer (Version 2.0)" http://www.cdt.org/copyright/ 
broadcastflag.pdf, which (you guessed it) reflects CDT's then -- and  
current -- position.

With the benefit of hindsight, we could have made our position on the  
flag clearer in our flag document. In the next couple days we'll edit  
the preamble to state more explicitly that the paper SHOULD NOT be  
taken as an endorsement of broadcast flag legislation.

Finally, a note on CDT's funding. Some people love to impugn CDT, an  
Internet organization, for taking money from the companies that are  
shaping the Internet.  All of our funding is public information. In  
fact, CDT probably posts more details about its funding than many  
other public interest organizations.  Recently, in the process of  
updating our Web site, we de-linked a page listing our supporters,  
while we redesigned it to match the new look of our site and updated  
it to reflect 2004 data. Contrary to reports, the page was never  
removed from the site. It remains located at http://www.cdt.org/ 
mission/2003supporters.shtml .  By next month, CDT will post the  
redesigned and updated funding page. In the meantime we will re-link  
to this older information. One of the articles inferred that  
surreptitious funding from Hollywood is driving our copyright stance.  
What's particularly ironic about that suggestion is that companies  
like Vivendi, Sony and Disney have actually pulled their support for  
CDT in recent years -- in large part because they disagree with our  
stance on copyright.

The polarized debate over copyright protection in the Internet age  
implicates some of the greatest threats to Internet development  
today.  CDT believes in protection of copyrighted material online and  
offline.  We are committed to seeking solutions to problems  
associated with copyright protection and believe deeply that those  
solutions will be found somewhere between the black and white  
positions at either end of the spectrum.  Our documents and public  
statements will continue to reflect that position, which is based on  
our commitment to preserving the free and open Internet as a tool for  
democracy and communication.   That position was spelled out in our  
June 2005 paper, Protecting Copyright and Internet Values, is  
available at http://www.cdt.org/copyright/20050607framing.pdf


Sincerely,
David Sohn
Staff Counsel
The Center for Democracy & Technology

Contact: David McGuire (202) 637-9800



--
--------------------------------------------------
David McGuire
Director of Communications
Center for Democracy & Technology
(202) 637 9800 x106
(202) 423 7432 (mob)
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