ContentContent FilteringFiltering andand TechnologyTechnology Mandates:Mandates: Technology,Technology, PolicyPolicy andand HistoryHistory

European Parliament, 7 September 2009

Jeff Lawrence Director, Global Content Policy Intel Corporation OnlineOnline piracypiracy debatedebate raisesraises complexcomplex technology/publictechnology/public policypolicy issuesissues

Content Providers Consumer IT Industry Electronics

BROADCAST CONTENT Technology Consumers Internet Service and Public Providers BROADBAND Policy PRE - CONTENT RECORDED CONTENT Privacy and Consumer Service Providers Advocates

Regulatory Bodies and Courts Understanding the issues with robust public debate is key DigitalDigital HomeHome Vision:Vision: Protection/InteroperabilityProtection/Interoperability

BROADBAND/Wired and Wireless MOBILE MULTIMEDIA Entertainment, Entertainment, E-Business, Services Personal Pictures and , Services

MEDIA Pre -Recorded Content Personal Media AnyAny Content,Content, AnyAny Place,Place, AnyAny Device,Device, AnyAny TimeTime (as(as authorized)authorized)

Conditional Access/Cable, Satellite, IPTV, Broadcast, Wireless Services and Entertainment EndEnd toto EndEnd ContentContent ProtectionProtection Pre -recorded Media AACS (Blu-Ray) DVD CCA's CSS (video) DMAs 4C’s DVD Audio 5C’s DTCP (DLNA Home Network) Conditional Access: EU: DVB 5C's DTCP Intel’s HDCP Japan: ARIB US: Cable Plug and Play DVI China: AVS HDMI UDI DisplayPort 802.11 Broadband GVIF DRMs/IPTV DRMs/IPTV OwlLink More Proprietary Standards based CMLA OMA DRM V2.0* 5C’s DTCP IP (DLNA) Connect Portables Digital Terrestrial Broadcast

Recordable Media AACS, 4C’s CPRM, 3G Source VCPS CMLA OMA DRM V2.0 DVB H, other Mobile CA ContentContent ProtectionProtection BasicsBasics • Encryption Technology is basic tool – Content is encrypted at the source – Technology and “decryption keys” requires rights holder approved license

• License Agreements govern manufacturers – Grants right to use technology/keys only in “legitimate” devices – Enforcement, rights, remedies, liabilities

• Laws target Pirates because technology does not work against them! – Piracy laws, Anti-circumvention (DMCA, etc.)

Effectiveness of Specific Tools Casual copier Licensing Laws

Hobbyist Technology Hacker Small scale pirate Professional pirate ProtectingProtecting ContentContent vs.vs. PolicingPolicing ConsumersConsumers

“Protecting” “Policing” • Content is encrypted at source • Consumer gets clear content • Devices maintain protection of the • Device/network/service looks for an specific content. invisible mark/content ID and won’t • Examples: play/deliver content •DVD Content • Examples: •DRM Sourced Content •DVRA/Hollings: Screen CGMSD •SCD: “Spy-ware” limits coping •Cable/Satellite Content •Blue-Ray-AACS Audio Watermark •Blue-Ray/DVD Content •Filtering Mandates

• Use IP/Technology to • Use Technology to Police Enable a Protected and Consumer in Home and Productive Digital Market Internet Markets not Mandates RecentRecent history...Nowhistory...Now repeatingrepeating inin EUEU • 1984: sued over Max: no secondary liability for products with substantial non-infringing uses • 1992: Audio Home Recording Act: Filtering type-tech mandate on recorders passed but failed as market moved • 1996: Recording Act Proposed: Tech mandate on all digital devices defeated – Voluntary cross-market initiatives flourish, eventually leading to CSS/DVD, HDCP, DTCP, CPPM, CPRM, AACS/BlueRay • 1998: DMCA: Safe Harbors, Anti-circumvention • 2000: Hollings Bill Proposed: Sweeping tech mandate defeated • 2005: Grokster: preserved BetaMax with caveat that product not marketed primarily for infringement; spawned numerous US legislative attempts (defeated) to undermine BetaMax

And now…. • EU Telecoms package • France, UK and other member states considering legislation on anti-piracy • Litigation in several EU member states TechnicalTechnical andand PublicPublic PolicyPolicy issuesissues withwith filteringfiltering

• Easily defeated with Encryption/scrambling – Network traffic is already moving to encryption to protect privacy and avoid filters – “Whack a mole” not commercially/technically reasonable – Tech mandate immediately “out dated”

• Shifts and creates new liabilities for service and technology providers – Displaces well developed principles of secondary liability and safe harbors  (i.e. "mere conduit" in the EU) – Implementing companies face claims by consumers if over-inclusive and claims by content owners if under-inclusive  Technology cannot clearly distinguish authorized and unauthorized uses

• Cost-Benefit analysis doesn’t make sense – Imposes significant implementation costs, with no commensurate benefit – Protects one business at the expense of others – Creates real business issues regarding creation and distribution of goods and services across national boundaries – Raises a host of other important public policy issues HowHow toto addressaddress concernsconcerns relatedrelated toto unauthorizedunauthorized P2PP2P filefile sharingsharing

• Private agreements are the best way to foster the development of new consumer offerings and media usages and to protect digital content owner interests

• Filtering obligations and technical mandates imposed to ISPs will not be effective in preventing or reducing unauthorized P2P file sharing, because: – There is no “silver bullet’ technology to identify or avoid unauthorised P2P – Filtering technologies can be easily circumvented – Any chosen technology must be constantly updated and no legislative effort can follow that rapid evolution

• Technology mandates will stifle technological innovation

• Presumption of copyright infringement: infringement determinations should be left to Courts and not to ISPs or rights holders SummarySummary andand ConclusionsConclusions

• Technology has an important role in a digital society, but technology mandates are ineffective

• Technology can help to protect content, in the context of market driven agreements, but government mandates to impose specific technology to fight piracy will not work

• Private agreements promote market driven consumer offerings and media usages that will reduce incentives to acquire unauthorized content

• Understanding the issues with robust public debate is key ThankThank YouYou