On Thursday CDT released a paper called “Evaluating DRM: Building a Marketplace for the Convergent World.” We informally call it our “metrics” paper, because it aims to provide metrics for evaluating DRM. Of course, these aren’t metrics in the sense of fully quantifiable criteria that can be precisely measured and recorded. Nor have we attempted to tell people what specific DRM schemes or products they should or shouldn’t purchase. Rather, we try to lay out systematically the types of questions one would want to ask to understand all the various choices and tradeoffs involved in a given DRM scheme. It’s a set of tools.

The paper starts from the premise that, like it or not, DRM is likely to be a continuing feature of the media marketplace. But the forms DRM will take, and the impact it will have, will depend in part upon how the public responds to it in that marketplace. We hope the paper can contribute to ongoing discussion about both DRM in general and in specific implementations.

As a practical matter, it may be that the kind of systematic inquiry suggested by these metrics is more likely to be undertaken by product reviewers and tech enthusiasts than by members of the mainstream public. But in the age of the Internet, word can get around. In the end, judgments about what DRM-equipped products represent good bargains, given price and other factors, will be up to individuals. Our hope is that there will be sufficient choices, and sufficient information, for consumers to vote with their wallets.

This paper was in the works for a while and a number of folks provided valuable input and comments. In-house, Alissa Cooper, Ross Schulman, Michael Steffen, and Ross Housewright all contributed. Susan Crawford of Cardozo Law School, Bill Rosenblatt of DRM Watch, and Bruce Gitlin, among others, were generous in providing detailed and knowledgeable feedback.

We also did a quick online cheat sheet laying out the basic metrics, with links to the explanatory text from the paper.

Yesterday the Federal Trade Commission announced its newest spyware settlement, a $2 million judgment against two companies and several individuals accused of surreptitiously installing spyware on users’ computers. The judgment named Enternet Media Inc., Conspy & Co. Inc., Lida Rohbani, Nima Hakimi, and Baback (Babak) Hakimi, whose software programs included “Search Miracle,” “Miracle Search,” “EM Toolbar,” “EliteBar,” and “Elite Toolbar.” The settlement includes a suspended judgment of $8.5 million and requires the defendants to pay slightly over $2 million.

The FTC order permanently prohibits the defendants from engaging in numerous spyware-type behaviors, including distributing software that tracks consumers’ Internet activity or collects other personal information, changes their preferred homepage or other browser settings, inserts new advertising toolbars into their browsers, or installs other advertising software on their computers. According to the FTC’s complaint, the defendants’ Web sites caused installation boxes to appear on consumers’ computers that offered free music files, ring tones, photographs, wallpaper, song lyrics, and security upgrades or patches. Consumers who agreed to the downloads received spyware that hijacked their Internet browsers instead of the free files that were advertised.

The settlement represents yet another step forward for law enforcement’s offensive against spyware distributors, and for the broader spyware fight. Enforcement is a necessary deterrent to potential spyware purveyors, and the FTC has been leading the effort.

Yesterday’s announcement comes on the heels of a lawsuit filed against malicious software distributor Movieland, which is merely the latest in a series of FTC spyware suits (all of which are outlined in our recent spyware enforcement report). We hope this is a sign that the FTC will continue to keep up the good work and that more states’ attorneys general will join in the fight to investigate and prosecute distributors of nefarious software.

Forces seeking to draw attention to the efforts of WIPO (the World Intellectual Property Association) to craft a new broadcast treaty may be gaining momentum. WIPO has been working for years, largely under the radar screen, on a proposed treaty that would guarantee broad new intellectual-property-like rights to broadcasters, cablecasters, and perhaps webcasters. CDT and a diverse group of companies, trade associations, and public interest organizations today issued a joint document outlining serious concerns with the proposed treaty.

The document offers a good general statement of what some of the key problems with the treaty are. But it is aimed first and foremost at the U.S. negotiators. Hopefully the show of opposition will provoke some serious thought on the part of the U.S. delegation about where the United States should stand in the talks regarding the treaty.

It is a subject that deserves real scrutiny. The whole concept of granting IP-like rights to broadcasters is foreign to the US legal regime. The approach builds on a prior treaty that the United States never signed (the 1961 Rome Convention) and a legal concept that the United States has never embraced (”neighboring rights,” designed to protect distributors of copyrighted content). In this country, copyright has always been about promoting and rewarding creativity. That is rooted in the Constitution and firmly established in our legal traditions. If the United States is going to consider a significant change in its approach to copyright law, it ought to be a matter of a full and public legislative debate. U.S. negotiators should not commit the country to such a change of course through a little-noticed treaty.

Nor are questions about the treaty limited to matters of procedure or legal doctrine. The joint statement outlines some specific issues relating to fair use, home and personal networking, intermediary liability, and so forth. As an organization focused on free expression on the Internet, CDT is particularly concerned that creating a new layer of rights holders is likely to complicate and restrict the robust flow of information by and between individual Internet users.

Officials with the U.S. Patent and Trademark Office presumably heard many of these arguments at a roundtable discussion today involving a number of groups with a variety of views on the treaty. Check in with our friends from Public Knowledge a little later for updates on the roundtable.

The message should be clear: there are important reasons to be wary of what WIPO is doing here.

UPDATE - Gigi Sohn from Public Knowledge has posted her recap of the roundtable discussion.

UPDATE 2 - We published a Policy Post that addresses these issues in greater detail.