I am at the Computers Freedom and Privacy conference, and listening to an interesting panel on the topic of government mandates imposing copyright filtering. Brad Biddle, Lead Counsel, Systems Technology Lab, Intel Corp., has posted a slide listing all of the reasons why government mandates for copyright filtering should be avoided, which I largely quote/paraphrase below:
(1) Invades privacy through surveillance and tracking of online behavior.
(2) Inhibits free speech and other rights because it is inevitably over-inclusive.
(3) Leads to increased demands for technology-based policing (broader filtering of trademark, trade secrets, hate speech and slander, and device-level filtering).
(4) Ineffective (or worse) as can be defeated through encryption, leads to “darknets” and difficult for legitimate law enforcement efforts.
(5) Inconsistent with existing laws like DMCA, EU E-commerce Directive, Wiretap Act, ECPA, privacy and copyright laws.
(6) Costs without benefits, given implementation costs that will be passed on to consumers.
(7) Liability risk through claims from consumers if over-inclusive and content owners if under-inclusive.
(8) Stifles innovation by inhibiting new technologies and services (place shifting, network storage).
This is a fascinating debate that naturally pits the content industry against some, but not all, ISPs, as well as privacy advocates and many proponents of the commons.
The last point made by Biddle is particularly interesting, as it raises the specter that filtering becomes a mechanism by which place shifting (i.e, watching television through the Internet) — as compared to time shifting (i.e., watching television at a different time slot than when originally aired) — and other innovative technologies become threatened. Betamax, the subject of Sony v. Universal (colloquially known as the “Betamax case”), did not survive, although there were many reasons for its demise. Does copyright filtering represent a leading-edge extension of that concern?
