The protections provided by copyright law incentivize individuals to create content for enjoyment by all. Over the past two decades, Intel has leveraged its technological expertise to ensure that copyrighted audio-visual works—like motion pictures, television shows, and video games—can be legally distributed and enjoyed throughout the world without fear of copyright infringement and without burdening end-users. This protection, in the form of technologies such as High Definition Content Protection (HDCP), is largely invisible to consumers, a credit to a long-term coordination between the creators of copyrighted content, consumer electronics manufacturers, and the information technology industry.
These technical protections permit video distributors to create a wide variety of business models from renting to streaming to purchasing. However, technological protection alone is often insufficient to prevent well-resourced individuals and groups from gaining access to this content.
At the dawn of the digital age, the U.S. government recognized that to incentivize content creators to make their content easily available to consumers, it had to supplement the technological protections provided by Intel and others with legal protections. Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. The DMCA’s “anti-circumvention” and “anti-trafficking” provisions create legal penalties for anyone who accesses digital content protected by encryption without prior authorization, or who sells a device that facilitates such access. These provisions ensure that content creators’ rights are protected without forcing them to engage in repetitive, costly, and ineffective litigation against individual infringers.
Last week, Intel, along with several digital content protection groups, filed an amicus brief in support of the government in Green v. United States Department of Justice. In this case, plaintiffs challenge the DMCA’s anti-circumvention and anti-trafficking provisions and seek to sell books and devices (immediately, even while the case is being heard) containing code that can decrypt HDCP-protected transmissions and produce unencrypted copies of the transmitted content. In effect, the plaintiffs want to hack the encryption software to make access to the content freely available without protection. Knowing the DMCA would prevent them from selling their products, plaintiffs have asked the Court to hold that the DMCA imposes an undue burden on their First Amendment right to free speech.
Before the DMCA, the content industry hesitated to entrust its valuable content to digital technology that could permit easy copying and illegal distribution. Intel’s brief provides critical background information to the Court on the development of the content protection ecosystem, the industry’s justified reliance on DMCA protections, and the harm that would inevitably result if the plaintiffs are able to sell their products, even temporarily. The brief explains how encryption methods like HDCP enable consumers to have access to digital content without concern for compatibility between devices or media, and how content would be vulnerable to infringement if technological protections were not supplemented by the legal protections of the DMCA. The brief also explains how the content industry responded positively to the DMCA by producing and distributing a wealth of digital content.
Because HDCP protects nearly all digital video content, its commercial decryption would subject all content to infringing copying. Once the content is copied and unprotected, there is no way to reverse the damage to content creators. The result would be a substantial reduction in the value of existing copyrighted content and a corresponding reduction in incentives to create new content.
Intel hopes its perspective will help the Court see the value of the DMCA’s protections and the danger to creators, consumers, and the American public if the current laws are not enforced.