IEEE Intellectual Property Committee on Copy Control Systems

To:        Hari.Reddy@CONTENTGUARD.COM
From:      mnemonic@well.com [Mike Godwin]
Date:      August 22, 2002

The appended document is a near-final draft of the IEEE Intellectual Property Committee's position statement on Copy Control Systems (also known as systems implementing Digital Rights Management). The Position Statement on Copy Control Systems has already been approved by the IPC, and after having gone through a lengthy editorial process with multiple drafts, harmonizing many members' differing views on the issue, it is now being reviewed by IEEE-USA's board of directors, and is expected to be submitted to Congress this fall as part of James Rogans' "21st Century Strategic Plan." (Rogan, as I'm sure you know, is Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office.)

My belief, shared by a number of other specialists in copyright policy working on the legal side of the issue here in DC, is that implementations of rights-management-language standards should attempt to map as closely as possible to the requirements laid out in something like the draft IEEE statement.

The theory here is this: since a major function of a rights language is -- as suggested by the nomenclature "rights language" or "rights management" -- to express both the rights held by the content owner and those held by the content user, it is important that the language adhere to the legal framework of what rights can be granted and held, and that it reflect current public policy concerning copyright. The IEEE statement attempts (among other things) to address and describe the legal framework's requirements in a way that avoids lawyerese, which suggests to me at least that it might be a better resource for informing a rights language than, say, Title 17 of the U.S. Code would be. In addition, the policy views expressed by the statement are, in my view, mainstream and uncontroversial.

I think most of us would agree that a rights language that either significantly exceeded, or significantly fell short of, expressing the rights and policies embedded in our copyright system, would quickly generate functionality problems, and perhaps even legal ones. And, of course, a rights-language framework that departs significantly from these principles might generate vigorous criticism from IEEE, which could slow the standards process down considerably.

As I said, this is a near-final draft, having already been subjected to a lengthy review and editorial process, and the IPC expects final ratification of the draft any minute, whereupon it will be submitted to Rogan and later to Congress as a whole.

Hari, please take the appended text document as a submission for the website resources, and feel free to include this "cover letter" as well, if you like.

Thanks again for all your assistance.

--Mike [Godwin]

020721 DRAFT Position Statement on Copy Control Systems

While recognizing the legitimate desire of copyright owners, including the content industry, to protect their copyright rights in the face of technological progression, IEEE-USA is concerned that copy control systems will likely upset the copyright balance between copyright owners, users, and consumers, and cause other problems with respect to technical innovation in the U.S . We are particularly concerned about the effects of any copy control technology that might be mandated by the government, or that might be imposed by industry without taking adequate care to protect the rights of the users and consumers.

IEEE-USA strongly believes that any proposed copy control system must clearly maintain the following:

Privacy. The copy control system must protect the privacy of the users of the system and of any data relating to the access or use of copy controlled information. For example, information about a particular consumer's access to works or portions of works must not be collectable.

Security. The copy control system must not introduce new vulnerabilities, nor prevent users from securing their systems.

Reliability and Accessibility. Consumers must be able to reliably access the content to which they are entitled at all times, and access to other content, software, or hardware must never be blocked due to unintentional similarity to another work or due to any error or design flaw of the copy control system.

Maintaining the scope of copyright protection. Copy control should not subvert the compromises between copyright owners and consumers in the copyright laws, and the court cases interpreting them. Additionally, IEEE-USA believes that copy protection must not be allowed to limit or eliminate reverse engineering of computer programs and interfaces, and time-shifting of television programs, both found lawful by the courts, to extend protection to works not protected by copyright, or to limit fair-use rights.

Business models. It should not be the purpose of a mandated copy control system to pick particular business or technology models, particularly in the way that software or hardware is developed, distributed, or used. It should also not favor one technology path over others or otherwise inhibit technology development but should let market demand resolve such issues.

Controlled cost to consumers. Any copy protection system should not impose unnecessary costs to consumers. Cost burden should not be required for devices not normally used for copying copyrighted content (such as microwave ovens or other computer-controlled appliances and consumer devices with embedded computers) or computer programs that do not play music or video from the content providers. Copy protection should not be used to force consumers to purchase new, or to repair, maintain, or upgrade, computers or players to continue their past lawful uses of the Internet.

Implementation. Any mandated copy protection system and its specifications must be available to those implementing the system without the payment of a royalty and must not impose unreasonable burdens

Continued access to works. Unlike a printed work, a work protected by a copy protection system can only be read using a device implementing that system. It is important that some way to preserve access to such works for future reference, to implement the copyright bargain of protection for a limited time after which the work enters the public domain and is free for all to use.

Limited applicability. Copy protection should not extend to non-copyrighted works.

Fair use. Fair use rights are complex and changing. It is important that consumers retain these rights regardless of the media, and that libraries, including the Library of Congress, retain unrestricted availability and access to works. For example, consumers should have the same rights regardless of whether they own a leather-bound book or the same book on a CD-ROM.

First sale rights. Consumers expect, and should remain able to purchase books, tapes, CDs, etc. and be able to give them away or sell them.

Non-restriction. The copy control protection should not restrict digital data processing and open source software.

Based on the opinions of technical experts who have considered the problems in developing copy protection systems, IEEE-USA believes that it is not technologically possible today to produce the universal copy protection system that the content industry desires that also provides the protections we've stated above and it is unlikely in the future that such a system will be possible. Instead, IEEE-USA recommends that efforts be directed toward alternative solutions which address particular problems rather than trying to mandate that a "silver bullet" solution be developed by industry or a government agency.

IEEE-USA also believes that consumers and other computer and content users must be encouraged to provide input throughout the development of any copy control system, and in particular before the adoption as a requirement for future consumer electronics devices. One has only to look at consumer resistance to the DIVX DVD and the digital audio tape, with its Congressionally-mandated Serial Copy Management System, to be concerned with the effect of any mandated copy control system on the United States' consumer electronics industry that does not have strong consumer support.

This statement was developed by the Intellectual Property Committee of the IEEE-United States of America (IEEE-USA), and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. IEEE-USA is an organizational unit of the Institute of Electrical and Electronics Engineers, Inc, created in 1973 to promote the careers and public policy interests of the more than 235,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE.

[Source: http://lists.oasis-open.org/archives/rights-requirements/200208/msg00048.html]

Prepared by Robin Cover for The XML Cover Pages archive. See: requirements submissions to the OASIS RLTC, Requirements SC.

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The Position Statement on Copy Control Systems has already been approved by the IPC, and after having gone through a lengthy editorial process with multiple drafts, harmonizing many members' differing views on the issue, it is now being reviewed by IEEE-USA's board of directors, and is expected to be submitted to Congress this fall as part of James Rogans' "21st Century Strategic Plan." (Rogan, as I'm sure you know, is Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office.) My belief, shared by a number of other specialists in copyright policy working on the legal side of the issue here in DC, is that implementations of rights-management-language standards should attempt to map as closely as possible to the requirements laid out in something like the draft IEEE statement. The theory here is this: since a major function of a rights language is -- as suggested by the nomenclature "rights language" or "rights management" -- to express both the rights held by the content owner and those held by the content user, it is important that the language adhere to the legal framework of what rights can be granted and held, and that it reflect current public policy concerning copyright. The IEEE statement attempts (among other things) to address and describe the legal framework's requirements in a way that avoids lawyerese, which suggests to me at least that it might be a better resource for informing a rights language than, say, Title 17 of the U.S. Code would be. In addition, the policy views expressed by the statement are, in my view, mainstream and uncontroversial. I think most of us would agree that a rights language that either significantly exceeded, or significantly fell short of, expressing the rights and policies embedded in our copyright system, would quickly generate functionality problems, and perhaps even legal ones. And, of course, a rights-language framework that departs significantly from these principles might generate vigorous criticism from IEEE, which could slow the standards process down considerably. As I said, this is a near-final draft, having already been subjected to a lengthy review and editorial process, and the IPC expects final ratification of the draft any minute, whereupon it will be submitted to Rogan and later to Congress as a whole. Hari, please take the appended text document as a submission for the website resources, and feel free to include this "cover letter" as well, if you like. Thanks again for all your assistance. --Mike [Godwin] 020721 DRAFT Position Statement on Copy Control Systems While recognizing the legitimate desire of copyright owners, including the content industry, to protect their copyright rights in the face of technological progression, IEEE-USA is concerned that copy control systems will likely upset the copyright balance between copyright owners, users, and consumers, and cause other problems with respect to technical innovation in the U.S . We are particularly concerned about the effects of any copy control technology that might be mandated by the government, or that might be imposed by industry without taking adequate care to protect the rights of the users and consumers. IEEE-USA strongly believes that any proposed copy control system must clearly maintain the following: Privacy. The copy control system must protect the privacy of the users of the system and of any data relating to the access or use of copy controlled information. For example, information about a particular consumer's access to works or portions of works must not be collectable. Security. The copy control system must not introduce new vulnerabilities, nor prevent users from securing their systems. Reliability and Accessibility. Consumers must be able to reliably access the content to which they are entitled at all times, and access to other content, software, or hardware must never be blocked due to unintentional similarity to another work or due to any error or design flaw of the copy control system. Maintaining the scope of copyright protection. Copy control should not subvert the compromises between copyright owners and consumers in the copyright laws, and the court cases interpreting them. Additionally, IEEE-USA believes that copy protection must not be allowed to limit or eliminate reverse engineering of computer programs and interfaces, and time-shifting of television programs, both found lawful by the courts, to extend protection to works not protected by copyright, or to limit fair-use rights. Business models. It should not be the purpose of a mandated copy control system to pick particular business or technology models, particularly in the way that software or hardware is developed, distributed, or used. It should also not favor one technology path over others or otherwise inhibit technology development but should let market demand resolve such issues. Controlled cost to consumers. Any copy protection system should not impose unnecessary costs to consumers. Cost burden should not be required for devices not normally used for copying copyrighted content (such as microwave ovens or other computer-controlled appliances and consumer devices with embedded computers) or computer programs that do not play music or video from the content providers. Copy protection should not be used to force consumers to purchase new, or to repair, maintain, or upgrade, computers or players to continue their past lawful uses of the Internet. Implementation. Any mandated copy protection system and its specifications must be available to those implementing the system without the payment of a royalty and must not impose unreasonable burdens Continued access to works. Unlike a printed work, a work protected by a copy protection system can only be read using a device implementing that system. It is important that some way to preserve access to such works for future reference, to implement the copyright bargain of protection for a limited time after which the work enters the public domain and is free for all to use. Limited applicability. Copy protection should not extend to non-copyrighted works. Fair use. Fair use rights are complex and changing. It is important that consumers retain these rights regardless of the media, and that libraries, including the Library of Congress, retain unrestricted availability and access to works. For example, consumers should have the same rights regardless of whether they own a leather-bound book or the same book on a CD-ROM. First sale rights. Consumers expect, and should remain able to purchase books, tapes, CDs, etc. and be able to give them away or sell them. Non-restriction. The copy control protection should not restrict digital data processing and open source software. Based on the opinions of technical experts who have considered the problems in developing copy protection systems, IEEE-USA believes that it is not technologically possible today to produce the universal copy protection system that the content industry desires that also provides the protections we've stated above and it is unlikely in the future that such a system will be possible. Instead, IEEE-USA recommends that efforts be directed toward alternative solutions which address particular problems rather than trying to mandate that a "silver bullet" solution be developed by industry or a government agency. IEEE-USA also believes that consumers and other computer and content users must be encouraged to provide input throughout the development of any copy control system, and in particular before the adoption as a requirement for future consumer electronics devices. One has only to look at consumer resistance to the DIVX DVD and the digital audio tape, with its Congressionally-mandated Serial Copy Management System, to be concerned with the effect of any mandated copy control system on the United States' consumer electronics industry that does not have strong consumer support. This statement was developed by the Intellectual Property Committee of the IEEE-United States of America (IEEE-USA), and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. IEEE-USA is an organizational unit of the Institute of Electrical and Electronics Engineers, Inc, created in 1973 to promote the careers and public policy interests of the more than 235,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE. [Source: http://lists.oasis-open.org/archives/rights-requirements/200208/msg00048.html] Prepared by Robin Cover for The XML Cover Pages archive. See: requirements submissions to the OASIS RLTC, Requirements SC.