Q: What is an example of secondary liability?

Burger: A very simple example is, I come to your house and I say, "Here's how you make a copy of all this stuff online." I don't touch anything. I haven't done anything. I'm not the human who made the copy, you did. But I have contributed to your liability.

So, for example, the Napster case is, I guess, the pre-eminent example of secondary liability.... But just assume that it's somebody who in some way assists or has control over somebody and knows that they're doing the wrong thing....

The grandmother case is the Sony Betamax case, where the studios tried to put Sony out of the business of selling video recorders, saying people were copying copyrighted television shows. And indeed they were. The only problem with that argument is that under the copyright law, it's a fair use under certain circumstances for a user to make copies of television shows. And the Supreme Court said, well, that's not what everybody is using it for. Yes, people are using it to violate the Copyright Act. The device is neutral, and as long as the manufacturer of the device, under the Sony case, makes a device that has substantial non-infringing uses -- even the possibility of substantial non-infringing uses -- that manufacturer is not guilty of second liability.

The Grokster case refined that further, saying, if on the other hand, you the manufacturer induce people to violate copyright even though your software is capable of non-infringing use, the fact that you induced people, you convinced them, in your advertisements, in your dealings with consumers, you aided them, or influenced them to violate copyright -- you're guilty of secondary liability.

Q: What impact would result from not including, as you mentioned in your letter, very specific language in regard to the "safe harbor" provisions detailed in the DMCA?

Burger: It would mean that there would be liability throughout the world for ISPs. That's a problem without them being able to do much. Here's the difficulty: We hear, "Oh, we should do filtering," which is to look for files that shouldn't be on the Internet. There's a whole complicated question of what should or shouldn't be there, but let's assume you know the difference. The study that the French record industry funded in France showed that light encryption on the files makes it impossible to even tell if it's peer-to-peer traffic, let alone having the content examined, because you can't see that if it's encrypted also.

So, if you impose filtering, you're talking about imposing huge expense on ISPs, for what good? Plus, there's also the very serious privacy concern -- looking in people's mail that they're sending. There's all these problems if you don't have the balance that was set forth in 512, which says there's a notice and take-down provision, and there's also a provision that says if they're a mere conduit -- in other words, they don't host the content, all they do is connect you to the Internet -- that they don't have liability for what flows over the Internet.

Q: If they do adopt somewhat unclear language in ACTA, what are the implications, then, for Intel?

Burger: Here's, I think, where all IT manufacturers are concerned at the end of the day: We know that these technological measures and this liability aren't going to stop file-sharing. We've been at the technology game a long time, and we know that if there isn't a good business proposition behind the protection and all you're doing is trying to stop people from doing something, as opposed to offering them a good alternative in the market, it's a game of "whack-a-mole."... For every 100 really good programmers any of us put on the problem, there are 10,000 hackers out there who just love to make their name by breaking whatever it is you've done. So just doing protection doesn't work....

And what happens then is you start to go, Well, where's the next place we can look to put this magic technological bullet? Well, it's down at the equipment level. And we've had a lot of discussions between industries on that, and we've basically tried to explain why that won't work....

First of all, [we're] directly concerned if there's any change to the secondary liability rules. That's clearly of concern to our industry. As Gary Shapiro of the Consumer Electronics Association said, the Sony case is the Magna Carta for the industry. Those are rules that have worked very well, we believe, over the years, and should not be lightly changed. In fact, we think that they ought to be included in ACTA and that it ought to be an international standard so we all know what the rules of the game are of doing business.

So this is our concern, that all of this will ultimately flow downhill, and at the bottom of that very important consumer electronics-information technology food chain are companies like Intel -- there are many more -- but companies who are providing the pieces-parts to build what's been a terribly successful industry.

Q: What do you think ACTA should contain?

Burger: I think it should focus on the hard-goods piracy problem. That problem's been around for a long time. I hope it's not intractable, but if you're talking about the organized commercial-level scale piracy, willful infringement, people who are going out there and distributing optical discs with pirated movies on them, I think that's something ACTA ought to really work on....

I just think you need to not conflate commercial-level piracy and individual infringement. As I said, they're both wrong. I'm not trying to justify either of them. The question is not whether they're right or wrong, because they are wrong, it's how do you deal with it. And I think they're two different problems. One is clearly a problem of enforcement. The second is, I think, more a marketplace failure that needs to be addressed.

And by the way, I'm not painting the content industry with a black brush. I think there are things going on that are very important, moving that direction. For example... the Digital Entertainment Content Ecosystem... a recently made public effort by Sony Pictures to give consumers what, I think, they really want with their digital content, which is, essentially, you buy a movie once and you can watch it on any of your devices anywhere. That's been sort of the problem with digital content, a kind of Balkanization of DRM [Digital Rights Management], so you get something that only plays on your DVD player on optical media, yet you want to put it on a portable player or your laptop.... I think that sort of reaching out, and looking at the marketplace, is what we ought to be considering first before we start thinking about how do we change international norms -- at least in the United States -- that have worked well for us.

Q: The Electronic Frontier Foundation and Public Knowledge recently filed a lawsuit asking the USTR to turn over more information about negotiations. Is this something that Intel would consider joining?

Burger: I don't believe so. Here's the problem. I think this is a structural problem, which is, generally speaking trade agreements have to do with trade of goods, and that's why, again, the hard-goods piracy thing belongs in ACTA, and when you're dealing with those kinds of agreements... those really do need to be negotiated in secret, and that's the USTR process under the law that has to be secret.

The difficulty is, international IP agreements have traditionally been negotiated in open, international bodies such as the World Intellectual Property Organization. I don't know why we're not there. [Stanford McCoy, assistant U.S. Trade Representative for Intellectual Property and Innovation], who I have tremendous respect for, explained it [at the briefing], but it didn't quite resonate with me. This is the kind of thing, according to everything that has been said -- the goal here is to establish international norms. It seems to me that the best place to go do that is at an international body.

Correction: This story has been updated to clarify Burger's affiliation; he is an attorney with Dow Lohnes PLLC.