The “open� nature of the Internet is a core issue for CDT – just check out the tag line right next to our logo. It should be a cornerstone of the next president’s Internet-related policy as well.

First things first: What does the term “open� even mean in this context? Above all, it means that the Internet has minimal entry barriers and no “gatekeepers� controlling what is allowed or how services or technologies must be designed. Users can communicate with whomever they choose, in whatever manner they choose. And because the technical protocols are standardized and public, anyone with a good idea can create a new service or application and offer it to a worldwide audience, without needing permission from network operators or governments.

This “open� architecture is what has enabled the Internet to foster such tremendous innovation. It empowers and harnesses the creativity of millions of decentralized users, from major corporations to dynamic startup companies to individual inventors and students. They all have a chance to give their ideas a shot – because nobody dictates which new services or technologies will be allowed or how those technologies must be designed.

So what does this mean for the next president? How can the president ensure that this powerful engine of innovation keeps humming?
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A recent exchange of letters between the McCain campaign and YouTube offers a clear illustration of the importance of fair use in protecting free expression — but also of the risk that the practical utility of fair use can be subverted by other copyright policies.

When CDT and others say that copyright policy raises free expression issues and requires a careful balance, this situation between the McCain camp and YouTube is the kind of thing we have in mind.

Apparently the McCain campaign has posted videos to YouTube that use short clips — some shorter than 10 seconds — of news broadcast footage as a basis for commentary and advocacy. That sure sounds like a classic example of fair use, meaning it should be permitted under copyright law. But the media companies that own the broadcast footage have gone ahead and sent takedown notices alleging copyright infringement, resulting in YouTube blocking access to the videos. The McCain campaign has written to YouTube asking it to review takedown notices aimed at videos posted by political campaigns and candidates and to reject notices that ignore obvious cases of fair use.
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The European Commission earlier this week released a paper identifying the following as the key challenges for the next stage of the Internet:

(1) continuing to update broadband infrastructure to improve accessibility and speeds;
(2) keeping the Internet open to new business models and innovation; and
(3) addressing privacy and security concerns.

This is a sound list. From CDT’s perspective, the emphasis on Internet openness is particularly welcome. The paper rightly notes the risk that “traffic management” could be used for anti-competitive purposes. The paper also observes that open standards are crucial. These are essential points in considering the debate over “Internet neutrality.” Innovation has thrived on the Internet precisely because anyone can design applications based on the medium’s common and open protocols. Any application that is built to those standard protocols will work across the whole Internet. An innovator need not seek cooperation or approval from network operators or anyone else; in short, there are no “gatekeepers.” But if individual network operators start departing from open standards and handling traffic differently based on its content, this openness could be significantly undermined. So it is good to see the European Commission acknowledge that this is a serious policy issue, rather than a “solution in search of a problem” (as neutrality opponents have often claimed).
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As the news focuses on negotiations over financial bailout legislation, congressional staff and Members who aren’t neck-deep in that issue are working behind the scenes to see if they can push other bills over the finish line before Congress leaves town to campaign. One bill that is now on its way to the President, after passing the Senate on Friday and the House on Sunday, is an intellectual property enforcement package called the “PRO IP Act” (S. 3325, sponsored by Sen. Patrick Leahy). The final bill represents an improvement over prior versions of I.P. enforcement legislation, but CDT still has some concerns about how certain provisions could play out in practice.

As passed, the bill contains measures aiming to beef up certain remedies for intellectual property violations, including by providing a harmonized approach to civil forfeiture of property connected to violations; to reform the federal government’s coordination structure for intellectual property enforcement; and to provide additional resources for intellectual property law enforcement efforts.

CDT believes that vigorous enforcement of existing copyright law (as well as other intellectual property law) is necessary and appropriate. And there is no question that computer technology and the Internet have created major new enforcement challenges.
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War, financial crisis and the fate of a nation hanging in the balance. It sounds like a back-of-the-envelope outline for a spy novel, but it’s actually the current political climate in the U.S. Given that, it’s no surprise that discussion of Internet and technology issues is adrift, and that civil liberties protection has been pushed to the margins during this intense political season.

And yet this election cycle provides a great window of opportunity. The President and Congress will have a chance to take a fresh look at the challenges and opportunities of the Internet and set a policy course for this vital medium that will keep it open, innovative and free.

We often take the Internet for granted. In a short time it has become a powerful engine for innovation, economic growth and democratization. The Internet has changed the way we “do” politics. Ordinary Americans are making their voices heard and organizing online. Political candidates are building online networks of supporters, raising unprecedented funds from small donors, and educating the public on their policies and visions.

A few months ago CDT started a dialogue on what we believe are the key issues impacting the digital work-a-day world where most of us are spending an increasing amount of time. The ideas and feedback flowing from that discussion will help us craft a kind of blueprint for technology policy for use by the new Administration, noting things that can be done right now while also providing a strategy for achieving longer term goals.

Starting this week and following through until the election, CDT will focus on specific issue areas and write about each of them here on our Policy Beta blog. Our President, Leslie Harris, will add another level of insight and commentary on the issue in a companion article published in her Huffington Post column. And for those that want a daily dose of policy prognostication —in 140 characters or less—you can follow our efforts via Twitter.

We encourage you to push these blog postings out to your friends, family, forums and social networks. We welcome comments, criticisms and suggestions, all of which will help us sharpen our message and hone our suggestions for the next Administration and Congress.

August is traditionally a slow time in D.C., with Congress out of session and most policymakers looking to escape town for some vacation. But the early part of the month has already seen some significant developments for Internet policy.

First, on August 1, the FCC voted 3-2 to adopt a controversial enforcement action against Comcast for interfering with BitTorrent traffic. As I noted in July, CDT has reservations about the legal basis for the FCC’s assertion of authority to engage in such enforcement. But the kind of tactics Comcast was using pose a real threat to the openness of the Internet, and the FCC’s decision marks the first time the government has stepped in to impose some concrete limits. It’s too early to judge the full impact — in part because the agency has not yet released the actual text of the order — but clearly this is a landmark development in the public debate over Internet neutrality and network management.

Second, on August 4, the 2nd U.S. Circuit Court of Appeals issued an important decision in the case involving Cablevision’s proposed “remote storage” digital video recorder (DVR). CDT helped organize an amicus brief in the case back in 2007, because the lower court ruling that the DVR would infringe copyright threatened to cast a major cloud of copyright risk over services that provide data storage remotely.
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The blogosphere pumped up the volume on the news that YouTube was being forced, under court order, to fork over its “logging database,” in the course of Viacom’s billion-dollar copyright lawsuit against the Google-owned video site. Remember that this logging database records every Leave It To Beaver rerun (as well as ALL other videos) you’ve watched on YouTube. The database doesn’t identify you by name, but it does contain your IP address and your “OutlawBikerSpike” user name.

Since that initial hue-and-cry, the suits at Viacom and Google hunkered down and reached an agreement–called a stipulation–in which Viacom agrees to accept YouTube user data in an anonymized format. That doesn’t stop Viacom from knowing how many times Leave it to Beaver reruns have been watched, but it does keep the company from knowing it was you doing all that late-night nostalgic viewing.

This is the hoped-for scenario proffered by my colleague David Sohn in his earlier blog post on this subject:

It seems likely, however, that Viacom doesn’t actually need to link specific videos to specific users. Viacom’s goal, presumably — and more on that in a moment — is to try to show that providing access to infringing video is a crucial and perhaps dominant aspect of YouTube’s business. For that purpose, aggregate and/or anonymous data (i.e., not linked or linkable to actual login IDs or IP addresses) should be perfectly sufficient. Viacom shouldn’t actually need specific login IDs or IP addresses at all. Significantly, Google says it is asking Viacom to let it anonymize the data before turning it over. Hopefully Viacom will agree that anonymous data is sufficient.

Viacom also took steps to ensure a potential PR fiasco never reached critical mass. The company sent a letter to the Electronic Frontier Foundation and promised to inform EFF if the conditions of the stipulation changed in ways that would effect how the logging data was handled.

There has been quite a bit of attention paid in the past week to statements by FCC Chairman Kevin Martin about possible FCC action against Comcast for interfering with some of its subscribers’ BitTorrent uploads. The idea appears to be that the agency could find Comcast’s actions inconsistent with principles set forth in the FCC’s 2005 broadband Policy Statement; order Comcast to refrain from such behavior going forward; and require more disclosure by Comcast of the details of its network management practices.

(Editor’s Note: For CDT’s prior blog posts on the Comcast/network management issue please click here, here, and here.)

CDT is no fan of the particular network management tactics Comcast was using. We think that efforts to manage congestion should apply evenly to all traffic based on objective criteria like usage volume, not single out specific applications. They also should be transparent. Comcast’s practices failed both tests. Still, we’re not exactly popping champagne corks at the apparent prospect of FCC action. An actual FCC order on this topic — particularly one characterized as an “enforcement action,” which is how Martin was quoted — raises significant concerns.
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The federal court hearing Viacom’s billion-dollar copyright lawsuit against YouTube issued an order earlier this week in the discovery phase of the case. The court denied Viacom’s audacious request to require YouTube to turn over the source code that powers YouTube’s (and Google’s) search engine. But the court granted the request to compel YouTube to turn over the “logging database” that records all video viewing history information for the site — a compilation of which users watched which videos and when.

This raises privacy concerns. The logging database does not identify users by name, but it does contain users’ IP addresses and unique login IDs. A login ID will be whatever the user chose — which could be anything from a nonsensical set of characters or a random word to the user’s actual name. I’d guess that in a substantial number of cases, the login ID will contain name or email information. In those cases, the login ID, perhaps aided by IP address, could be sufficient to identify the actual, real-world world identity of the user. So the logging database will include identifying information for such individuals, linked to their full YouTube video viewing history.
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CDT’s recent paper on digital watermarks and privacy got some positive reviews here and here; however, it also prompted criticism from Timothy Lee on ars technica. Lee argues that the paper “misses the point” because it does not come out and say that individualized watermarks — watermarks that correspond to individual users, devices, or transactions — pose an “inherent threat to privacy” and should be avoided.

Certainly it is true that the simplest way for a company to steer clear of privacy issues is to refrain from using individualized watermarks in the first place. If a company would rather avoid the effort and hassle of working through the list of our proposed privacy principles, it can limit itself to what the paper terms “generic” watermarks — watermarks that are not specific to individual copies of the content. (The same point applies to other areas where CDT has worked on privacy best practices; for example, if you don’t want to wrestle with the privacy questions relating to RFID, you can always avoid the technology altogether.)
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