A draft charter for the "Analog Reconversion Discussion Group" (ARDG) has been circulated, and EFF has today opened a new blog, Cruelty to Analog, addressing attempts to control digitization technology.

The ARDG is meant to address the so-called "Analog Hole", although the use of that term by the entertainment industries seems to have been nearly abandoned now.

The FCC has extended the deadline for filing reply comments about the broadcast flag to February 18, granting in part the request of the library associations for this extension.

EFF has filed initial comments with the FCC in docket 02-230, opposing a broadcast flag mandate.

At Wednesday's CPTWG meeting, attendees heard reports from proponents of the formation of a new CPTWG sub-group, to be called the "Analog Working Group" or the "Analog Issues Discussion Group". Representatives of groups of consumer electronics, information technology, and entertainment companies briefly discussed the nature and scope of the group's work. EFF attended the CPTWG meeting and heard the presentations.

If CPTWG charters this group, it may consider technologies which can be used to control "redigitization" by means of analog-to-digital conversion. CPTWG's chairs could make that decision in the next several weeks, and meetings of the new discussion group could begin early in the new year.

Although the group would not be charged with developing legislation, it is difficult to imagine that any recommended measure to control digitization could be widely implemented voluntarily.

We've discussed the "Analog Hole" before, and noted that Hollywood studios have called for the formation of an "inter-industry" discussion forum on this topic. If the CPTWG sub-group is formed, it may turn out to be that forum. If so, it's worth your attention.

Initial comments on the broadcast flag should be filed with the FCC by tomorrow, December 6.

You can file a comment electronically using the ECFS system. You should first read the Notice of Proposed Rulemaking in this matter, and learn about filing comments with the Commission.

You can also use ECFS to view comments already filed by others; search for docket no. 02-230.

We urge you to avoid misconceptions about the proposed mandate and to consider your comments carefully.

There will be a reply comment period in which additional comments may be submitted in reply to initial comments. Reply comments will be due by January 17 and may also be filed using ECFS.

The FCC has extended the deadline for public comments in response to its earlier Notice of Proposed Rulemaking (NPRM) to December 6.

EFF met with several offices at the FCC last week to discuss our concerns about the broadcast flag mandate proposal. Thanks to the FCC staff members who took the time to meet with us.

E.E. Times has also recently run an interesting overview of the analog hole issue, including some recent developments.

The article starts off by mentioning that the public is not typically well-represented in struggles over DRM and copy controls. (Technology companies have taken up the role of proxies for the public's interest, but it's not necessarily a role to which they're always well-suited.)

The first paragraph suggests that the presence of public-interest protesters "illustrates the frustration and high stakes involved in finding a political settlement to the digital copyright feud". Unfortunately, the main body of the article doesn't address the question of public representation. The battle is always presented as one between a small number of film studios and a small number of technology manufacturers.

Still, this article is worthwhile as an analog hole update.

There are many other sources of good background information and news on current struggles over copyright and technology mandates. One such is Donna Wentworth's Copyfight.

Draft legislation by Rep. "Billy" Tauzin would require the FCC to issue rules mandating that digital TV receivers respond to the broadcast flag in some way.

We're still studying this bill, which has not been introduced. One noteworthy point: the bill contemplates eliminating analog video outputs from digital TV receivers.

Rep. Tauzin's bill will be discussed at a hearing before the Commerce Committee on Wednesday, September 25.

The DVD CCA has failed to select (as it had planned) a "Consensus Watermark" from among watermark technologies submitted by bidders.

EE Times reports on the failure to achieve an agreement.

We understand that the currently submitted bids will expire on November 2, and that there is currently no process in place to solicit or consider new bids.

The "Consensus Watermark" idea has had a significance far beyond DVD Video. Some studios had suggested that it could be the technological basis for a government mandate on watermark detectors, to address the so-called "analog hole". In addition, several existing private contracts refer to the Consensus Watermark (or related security measures) and provide that licensees would be required to detect and respond to the watermark, if and when it is "declared".

One application of the Consensus Watermark would be to control video data after it had been extracted from a CSS-encrypted DVD (perhaps by using a utility such as DeCSS) and converted into a different format. Equipment which recognized the presence of the watermark within the video data itself might be designed to refuse to play watermarked video streams if they were found "in the wild", outside of the encrypted media through which they'd originally been published.

Reports indicate that MPAA is very unhappy that the Consensus Watermark was not selected.

Drew Clark and his colleague Bara Vaida have published an excellent and thorough background article on Hollywood's struggles with technology companies. The article is freely available on-line -- follow the line above to read it -- and National Journal has given us permission to quote portions below.

This is a good introduction to contemporary issues about copyright and technology, from a political perspective.

The technical standard for the broadcast flag itself (which defines what the broadcast flag is and how it may be placed into a broadcast) is available from ATSC. The broadcast flag is called the "redistribution control descriptor" (descriptor 0xAA) by ATSC, and is defined in Amendment 3 to A/65A: Program and System Information Protocol for Terrestrial Broadcast and Cable (Revision A) (commonly known as "A/65" or "PSIP").

Amendment 3, adopted by ATSC in April of this year, can be found in the document linked above, beginning on p. 142. Readers may observe that the descriptor, by itself, doesn't do anything; it's defined to mean that "technological control of consumer redistribution is signaled", but the ATSC standards do not require any particular response to its presence.

Requiring devices to detect and respond to this flag in a particular way is the role of the Compliance and Robustness Rules discussed within the BPDG. Currently, manufacturers are producing legal (and ATSC standards-compliant) devices which do not respond to the flag at all.

Prof. Edward Felten is a long-time proponent of free expression and was represented by EFF in the Felten v. RIAA case, protecting the right to publish scientific research.

Felten is writing a book on the freedom to tinker, and also maintains a news site at freedom-to-tinker.com with updates on tinkering and reverse engineering.

This week, Felten points out that the so-called "broadcast flag" controversy is not really about the broadcast flag, but about banning technology.

Technologists normally use the term "flag" to refer to a simple label that is attached to data to indicate some attribute of the data. A recipient of the data can use the flag as one factor in deciding what to do with the data, but most flags are strictly advisory and do not compel any action by the recipient. Such a flag is simple and nonrestrictive. Who could object to it?

Hollywood doesn't need to ask for a true broadcast flag. The standards for digital television broadcasting already have a place for such a flag. No government action is needed to allow Hollywood to use a flag to indicate the broadcast status of a program.

This simple issue of terminology is significant. Reporters frequently ask us whether we support or oppose the broadcast flag. Of course, we don't support or oppose the broadcast flag itself. What we oppose is making it a crime to produce certain kinds of general-purpose video technology.

Audiorevolution.com reports that CBS will offer the majority of its prime time schedule in high-definition.

The 2002/2003 television season marks the fourth consecutive year CBS has broadcast the majority of its primetime schedule in HD, and the second season that it has offered all of its scripted entertainment series in the HD digital format.

Eighty-three of CBS' owned and affiliated stations are currently broadcasting in digital, covering reportedly 72 percent of the nation. By the end of 2002, CBS expects to be transmitting digital programming across more than 100 owned and affiliated stations, reaching over 83 percent of the country.

And all without a broadcast flag mandate!

The European Community last year proposed to the World Intellectual Property Organization a new treaty "on the protection of the rights of broadcasting organizations" (see draft treaty text). This treaty would require national law to grant to broadcasters

• "the exclusive right to authorise or prohibit the fixation of their broadcasts";
• "the exclusive right to authorise or prohibit the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts";
• "the exclusive right to authorise or prohibit the retransmission, by wire or wireless means, whether simultaneous or based on fixations, of their broadcasts";
• and other rights, including the rights to control the exhibition and distribution of fixations (recordings) of broadcasts.

In addition, signatories to this treaty would be expected "to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organisations" to secure these new rights.

This treaty would undermine many of the public's rights under the copyright laws of most countries in the world. In the U.S., for example, it would eliminate the public's rights, established by law since 1984 (though already somewhat curtailed by legislation), to make recordings of broadcasts without the permission of a broadcaster. Indeed, the treaty text is a direct attack on home recording and the public's rights in recordings of broadcast programming.

The broadcast flag, currently a somewhat exotic regulatory proposal in the U.S., would be the norm in all countries which adopted this treaty, and they would be required by law to prevent "circumvention" of broadcast flag-like measures. (Some countries have already established, in principle, a right to prevent home recording. The U.S. very definitely has not done so.)

So far, this treaty has not been adopted by WIPO. The E.C. web site says that this treaty will be considered again by WIPO at its General Assembly in September of this year.

The Federal Communications Commission (FCC) today issued a notice of proposed rulemaking (NPRM) "In the Matter of Digital Broadcast Copy Protection" (Media Bureau Docket No. 02-230).

The NPRM seeks public comment on a variety of issues related to the broadcast flag proposals, including whether the broadcast flag is necessary, whether it would be effective, whether the Commission should mandate it, and what effects it would have on various parties. EFF is preparing comments, and other parties should do so as well.

We will probably publish some advice here on "How to Comment to the FCC".

Parties who are interested in co-ordinating their comments with our own are welcome to contact us.

Comments will be due on October 30 and reply comments will be due on December 13.

At the same Commission hearing at which the FCC's broadcast flag NPRM was announced, the Commissioners also decided to implement a "digital tuner mandate", requiring TV manufacturers to include ATSC tuners in their TV sets.

This controversial regulation means that it will soon be difficult to purchase a television without ATSC support.

The digital tuner mandate is distinct from the broadcast flag mandate proposal. However, the BPDG proposal and related policy advocacy by BPDG participants suggest that "Compliance and Robustness Rules" (in practice preventing, for example, consumers from repairing or upgrading their own equipment) ought to be applied by law to any device containing an ATSC tuner.

Today's FCC action means that "any device containing an ATSC tuner" could soon include "all television sets manufactured in the U.S." -- making the impact of a possible broadcast flag mandate that much greater. If both mandates are implemented, it would be difficult to purchase a TV in the United States without legally-mandated "tamper-resistance" measures. Therefore, the stakes in the broadcast flag mandate debate have been increased significantly.

(The tuner mandate applies only to sets above a certain size, although, in earlier instances, such rules set the stage for an industry-wide redesign of all TV products.)

Included below is a press release from CDT, Consumers Union, and Public Knowledge, on their call for the FCC to consider the impact of a broadcast flag mandate on consumers. The press release makes reference to the same groups' July questions on the BPDG rules' impact and effectiveness, which were developed in consultation with EFF and a variety of technical experts.

The EFF, in a letter Wednesday to FCC Chairman Michael Powell, criticized the broadcast flag proposal. The letter advised the Chairman of some of the risks associated with that proposal, and asked the Chairman not to adopt a broadcast flag mandate.

The Federal Communications Commission decided at its meeting in Washington today to issue a Notice of Proposed Rulemaking on the broadcast flag. Public comments will be due by September 30.

We will provide the text of the NPRM as soon as it's available.

To our surprise, Rep. Tauzin has written a letter of his own to Chairman Powell, suggesting that Powell implement a broadcast flag mandate using powers granted to the FCC under 47 USC 336 (and other existing statutes). Tauzin does suggest that the FCC ought to consider the views of "consumer groups".

The letter is co-signed by Rep. John Dingell.

We have obtained a copy of the letter sent by Sen. Hollings to Chairman Powell.

Hollings urges Powell to move quickly and to implement a broadcast flag mandate now, even without additional legislation. He suggests that 47 USC 336(b)(4) and (b)(5) already give Powell the authority to impose such regulations.

Hollings says that it is "beyond dispute that the public interest would be served" by this mandate. We're confident that Chairman Powell is already aware that there's plenty of dispute.

What accounts for the timing of this letter? It's likely the result of Rep. Tauzin's round-table meeting last Monday, where, sources relate, Tauzin indicated that broadcast flag legislation would not be passed this year. Clearly broadcast flag proponents have reacted to this news by trying to make an end-run around legislation.

Below is the June update to the MPAA's Content Protection Status Report, filed with the Senate Judiciary Committee on June 26. (The original Status Report was published a few months ago.) Among other things, the update contains a suggestion that the DVD CCA "consensus watermark" could be used as an analog-hole-plugging watermark. (Several journalists have previously asked me whether there is any connection between these two watermark-development proposals. The answer had previously been "it's possible, but there is no connection which has been announced in public".)

The DVD CCA consensus watermark is supposed to be embedded in movies published on DVD so that DVD CCA-licensed equipment can continue to control the use of these movies even if a user decrypts them (e.g., using DeCSS). The DVD CCA license agreements contemplate that manufacturers could, in the future, be required by license to detect watermarks and act on them in some way. However, the DVD CCA has no power to control the activities of people who are not licensees and have no connection with it (except, perhaps, by suing them). It is possible to imagine a future in which detection of the DVD CCA watermark is mandated by law for all devices which perform analog to digital conversion. In fact, MPAA has already imagined such a future for us.

The full text of the update is included below.

EFF was advised that Sen. Ernest Hollings has written a letter to the FCC advocating immediate implementation of a broadcast flag mandate -- even without additional legislation. Hollings apparently claimed that the FCC already has, under existing statutes, the authority necessary to require that all manufacturers comply with BPDG rules.

We hope to have the text of the letter available soon.

Sen. Hollings is also the author of the "Consumer Broadband and Digital Television Promotion Act" (CBDTPA) -- often ridiculed as "Consume, But Don't Try Programming Anything". (EFF takes Disney and other entertainment companies to task for their support of such legislation.)

Declan McCullagh, now at CNET, reports that RIAA today suggested a broadcast flag mandate for digital audio (similar to the MPAA's proposal for digital video).

EFF's Robin Gross attended the meeting at which RIAA revealed this proposal, so we'll try to have a more detailed report in the near future.

Note that the BPDG broadcast flag is only applicable to ATSC and can't be used for any other purpose. However, creating new broadcast flag standards is easy enough. Requiring manufacturers to cripple their equipment, and programmers their software, is the difficult part.

An Internet.com article by Roy Mark reports on a highly-critical letter sent by the Consumer Federation of America to members of Congress.

On all counts, the efforts of the industry-dominated BPDG are off target. The BPDG seems to have started from the premise that all consumers are thieves and has set out to develop a hardwired anti-theft system that destroys consumers' abilities to make fair use of the programming that comes into their homes. [...]

In the longer term, the BPDG licensing approach will stifle innovation. It puts a handful of companies in charge of approving recording and display devises. Gatekeepers such as these inevitably protect their private corporate interests at the expense of the public interest.

We also understand that Public Knowledge, the Center for Democracy and Technology, and Consumers Union were represented at the roundtable meeting this morning, and had critical comments for the BPDG report.

The latest issue of Home Theater magazine reports on the state of major network broadcasting of popular programming in digital high-definition. In the "You Oughtta Know..." column by Chris Lewis, Home Theater reports on current network offerings. Lewis points to an on-line list of such programming, which includes

• The ABC Big Picture Show (720p)
• According to Jim (720p)
• The Agency (1080i)
• Alias (720p)
• CSI (1080i)
• Crossing Jordan (1080i)
• The District (1080i)
• The Drew Carey Show (720p)
• Everybody Loves Raymond
• Family Law (1080i)
• The Guardian (1080i)
• JAG (1080i)
• Judging Amy (1080i)
• The King of Queens (1080i)
• NYPD Blue (720p)
• The Practice (720p)
• The Tonight Show with Jay Leno (1080i)
• Touched by an Angel (1080i)
• The Wonderful World of Disney (720p)
• My Wife and Kids (720p)

and many others -- all without a broadcast flag mandate.

A recent report from the Pew Internet and American Life Project says U.S. broadband deployment is proceeding at a reasonable pace, and broadband users are finding a wide variety of uses for their Internet connections:

[H]ome broadband adoption rates [are] on par with the adoption of other popular technologies, such as the personal computer and the compact disc player, and faster than color TV and the VCR.

Some have raised the concern that a lack of compelling online content, particularly in the entertainment arena, has dampened consumer uptake of broadband. Our research suggests that most early broadband adopters find plenty to do with their fast connections, especially when it comes to creating online content and performing information searches.

[...]

Broadband connections are changing people's lifestyles. The Internet is the "go to" tool for a variety of functions -- paying a bill, updating photos on the family Web page, listening to music, sharing files with co-workers, or getting news. For these users, the Internet replaces multiple tools, such as the telephone, TV, stereo, newspaper, fax machine, or pen, to carry out tasks.

[...]

Several broadband users, responding to the Pew Internet online query, complained that downloading movies is extremely time-consuming even with a broadband connection, with one calling it "a sheer waste of time."

Katherine R. Lewis of Bloomberg (who was earlier expelled from the BPDG's mailing lists and conference call) has published an article (this link may not be permanent) about the recent round-table meeting convened by Rep. Tauzin.

``We have a sound game plan in place designed to produce an agreement on many of the contentious issues,'' Johnson said. ``We asked them for ideas. We'll write the legislation.''

[...]

Philips is ``pretty much isolated in their position,'' News Corp. lobbyist Rick Lane said. ``The consumer benefits will be tremendous. Consumers will be able to receive high-value, quality content from broadcast television.''

The article doesn't play up opposition to technology mandates in general -- perhaps because mandate opponents have been oddly quiet recently, with many taking a wait-and-see approach. Unfortunately, it's easy to interpret reticence as nonexistence.

Now that Rep. Billy Tauzin has heard from the BPDG and seen firsthand the nonexistant "consensus" that emerged from the six months of BPDG discussions, it's time for round two.

Philips CEO Lawrence J. Blanford (who earlier made some very brave remarks to Congress lambasting the BPDG) has issued a new statement, in which he calls for an open "Public Policy Forum" in Congress to determine how best to encourage the American public to switch to digital television.

In the new statement, Blanford ennumerates Philips's problems with the BPDG process to date, echoing many of the concerns EFF raised in its own report.

Rep. Tauzin has hand-picked a small number of parties to produce documents between now and July 15th to establish a new set of recommendations. It's not clear how groups like EFF and the Free Software Foundation (whose GNU Radio technology would be illegal under the terms of the current mandate) are to participate in this new process, beyond submitting an alternative proposal for adding new technologies to Table A (the list of approved technologies).

The problem is that framing new objections to BPDG in the context of the approval of new technologies exempts the possibility of not having to approve technologies at all. Under the Betamax doctrine, the test for legality of new technologies is whether they have "substantial non-infringing uses," not whether Hollywood deems them appropriate for use in the marketplace.

More disturbing is that Rep. Tauzin's proposal makes no room for objections to the "robustness requirements" that would outlaw free and open source software from use in digital TV contexts because they are not "tamper-resistant." Given the clear legal precedent that establishes software code as speech, this is clearly unconstitutional, violating the First Amendment.

We'll be looking into this most carefully and reporting in this space as we learn more.

A Reuters article reports that Rep. Tauzin set a July 15 deadline for some parties (BPDG participants?) to reach agreement.

Johnson said last week that Congress would mandate a solution if the parties could not agree on their own, but on Tuesday he declined to say whether Tauzin would introduce a bill if private industry could not agree by then.

EFF's letter to Tauzin is mentioned in the last paragraph of the Reuters article.

A Bloomberg piece (is it on the web anywhere?) reports MPAA emphasizing that there were "only 14 dissenters out of about 70 organizations". Jack Valenti has said repeatedly that there was "substantial agreement" on the broadcast flag -- including broad support for government action to ban products which don't conform to the Compliance and Robustness Rules.

By contrast, dissenters (like EFF) have painted a very different picture. Some reporters have been left scratching their heads, wondering whether there is or isn't a consensus. An article from Variety is a good example of the contrasting perspectives:

"I didn't say there was unanimity, but this shows you can get all these groups together in good-faith discussions," Valenti said. "I think it's fair to say that there is broad, multi-industry consensus on the core aspects of a technology called a broadcast flag."

Critics are harsher in their assessments, however. "There is no consensus on any significant point," Philips senior researcher Michael Epstein said.

We heard today that Rep. Tauzin had insisted that industry participants in BPDG reach an agreement on the "broadcast flag" by Monday, July 15. More information will be posted as it becomes available.

EFF today sent a letter to Rep. Billy Tauzin regarding the "broadcast flag" proposal and the threat technology mandates pose to the interests of consumers. The letter, by EFF Sr. Attorney Fred von Lohmann, notes that

the interests of consumers have been inadequately represented in the BPDG process, leading to serious flaws in the draft "broadcast flag" standard [...]

Consumer viewpoints have been excluded from the BPDG process from the outset. Although nominally "open" to all interested parties, the BPDG organizers have never made any effort to make its meetings accessible to consumer groups. EFF made numerous suggestions aimed at remedying this (all of which were rejected), including subsidizing the expenses of interested consumer groups and inviting the press.

The letter also observes that a mandate based on the BPDG Report would threaten fair use, innovation, and the digital television transition.

Philips made further criticisms of BPDG in a press release issued today. The criticisms focus on the BPDG process and include charges of self-interest on the part of BPDG participants.

These criticisms seem particularly significant to us -- many of the rules were written by organizations with a direct financial interest in technologies under consideration. Therefore, as we're suggested before, their conclusions should be viewed with particular skepticism.

Philips repeated its call for a government-chartered forum with a proper process and a more broadly representative membership. Hollywood studios are likely to resist that proposal, because it might reveal the true diversity of opinion which exists among those with an interest in digital TV. In addition, end-users of digital TV might actually be represented somehow!

We're still waiting to hear about the work of the "parallel group" -- a mysterious entity which is supposedly "not part of CPTWG" and "not a sub-group of CPTWG" but which is meant to address "policy issues" and "enforcement issues" related to the broadcast flag proposal.

We understand that some members of BPDG were invited by Rep. Billy Tauzin to talk about digital TV issues; EFF was not invited to that meeting, but we hope to have substantive information about it available soon.

In the meantime, those who follow digital copyright and television broadcast might be interested in a new EFF court case, Newmark v. Turner, in which five users of the ReplayTV personal video recorder are seeking declaratory judgment that their use of that product (including commercial-skipping) is legal. The Newmark case doesn't have a direct connection with the broadcast flag, but readers may find a number of common themes.

Amy Harmon's article on BPDG (New York Times, free registration required) suggests that the results were quite unfavorable to the studios:

Hollywood studios seeking to impose electronic controls on digital television broadcasts suffered a setback yesterday as a coalition of technology and consumer electronics companies supporting their efforts crumbled in a cross-industry power struggle.

A long-awaited report that the studios hoped would provide the consensus necessary for anti-piracy legislation -- and that members of Congress hoped would jump-start the stalled rollout of digital television -- instead disclosed a host of dissenting opinions.

[...]

"May I say quickly that there is no consensus embodied in that report," said Tom Patton, vice president for government relations at Royal Philips Electronics. "None."

The BPDG final report is now available from the EFF web site. (This version should not be considered "official", because we have reformatted it and converted document formats. However, the contents are identical to the final report as filed by co-chair Michael Ripley.)

EFF comments appear in Tab N. Philips comments appear in Tab P.

If changes are subsequently made to the report, we will post them as well.

Jack Valenti claims that BPDG found an inter-industry consensus on the Broadcast Flag. (It didn't look that way to us.)

This CCIA release is sharply critical of the BPDG recommendations.

They'd even have a place for people who dared to use products that didn't follow their rules, or tried to go around the anti-copying technology: It's called prison.

BPDG's final report was released this evening. There are a large number of "tabs", or appendices, and some are still in the process of being released.

EFF has published a brief summary of our objections to the BPDG report. You can download it in PDF format or read the text, included in the body of this article.

Will Rodger, Public Policy Director at the Computer and Communications Industry Association, filed CCIA's BPDG comments last week:

The Computer & Communications Industry Association has been monitoring the BPDG process for several months. During that time we have been keenly aware of the difficulties of creating a digital rights management system that could protect high-definition content while at the same time protecting fair use for consumers and future innovators alike.

The co-chairs report purports to do so, but falls far short, in part because of the open-ended veto power it has given content owners over technologies that could be used to infringe their copyrights. Philips Electronics, among others, has already outlined the conflict that has resulted from this arrangement.

Such difficulties are a real concern: intellectual property, after all, is a cornerstone of our industry and something without which we and our members would have no business at all.

But intellectual property in the United States is and always has been a balance between owner and consumer of that property. Part of that balance includes building technology and business models that account for the interests of other industries and consumers themselves. History tells us that juke box owners, piano-roll makers, broadcast music and cable TV didn't just bring new media to consumers, but changed the way established media did business, often with the help of the legal system.

We see no such evolution in the BPDG. Instead of a process that embraces new technology, we see one that attempts to keep it at bay.

Worse, we fear the BPDG approach to intellectual property will ultimately bring all of IP into ill repute. Maximalist approaches that treat consumers not as partners but as parties from which to extract only profits will breed contempt for law as surely as Prohibition ever did, and thereby encourage the piracy this effort is suppoed to prevent.

The BPDG approach has been marred by repeated and credible claims of back-room dealing by a small number of parties who have excluded most participants from real decision making. Such closed-door talks raise not only issues of fairness and copyright, but competition law as well.

Over the years, CCIA has participated in numerous standards-setting bodies. Each has included numerous affected participants, all of whom worked towards making systems more interoperable, not less. We call on all BPDG participants to include more companies, more consumer advocates, and to write strict sunshine rules so that all parties are included in all negotiations.

We also call on participants to look to the market first -- and the government last -- to protect the legitimate interests of all stakeholders.

A Washington Post article by Mike Musgrove says the BPDG's final report has been a subject of great controversy.

"Everybody except chicken farmers and professional wrestlers submitted comments," said [co-chair Robert] Perry.

Although there was a tremendous amount of last-minute activity, we hope the skeptical comments of organizations such as EFF, FSF, CCIA, Philips, Thomson, Zenith, and Sharp did not come as a sudden surprise. We at EFF, for instance, have been saying for quite some time that technology mandates threaten fair use, innovation, free software, and the right to tinker.

Jon Lech Johansen, EFF Pioneer Award-winning co-developer of DeCSS, has joined the BPDG's mailing lists.

EFF regrets that several hecklers have been joining the BPDG conference call this afternoon to disrupt it. This behavior has been terribly counterproductive and could jeopardize even the minimal openness which the BPDG's negotiations enjoy, driving such discussions further underground. We condemn such immature activity.

Hecklers should be aware of the risk they pose to the public's access to and awareness of news events such as the BPDG process. Since BPDG chose to exclude journalists, public participation is especially important to provide journalists with a variety of independent sources. If public access appears to result in too many disruptions, however, it could be eliminated, at the price of all first-hand accounts.

Any process which aspires to openness or wishes to enjoy the appearance of openness may be faced with difficulties maintaining order. We hope that that difficulties will never be insurmountable, and further that they will never be made unnecessarily burdensome.

The people who tried to take away your VCR are at it again. Hollywood has always dreamed of a "well-mannered marketplace" where the only technologies that you can buy are those that do not disrupt its business. Acting through legislators who dance to Hollywood's tune, the movie studios are racing to lock away the flexible, general-purpose technology that has given us a century of unparalelled prosperity and innovation.

The Motion Picture Association of America (MPAA) filed the "Content Protection Status Report" with the Senate Judiciary Committee last month, laying out its plan to remake the technology world to suit its own ends. The report calls for regulation of analog-to-digital converters (ADCs), generic computing components found in scientific, medical and entertainment devices. Under its proposal, every ADC will be controlled by a "cop-chip" that will shut it down if it is asked to assist in converting copyrighted material -- your cellphone would refuse to transmit your voice if you wandered too close to the copyrighted music coming from your stereo.

The report shows that this ADC regulation is part of a larger agenda. The first piece of that agenda, a mandate that would give Hollywood a veto over digital television technology, is weeks away from coming to fruition. Hollywood also proposes a radical redesign of the Internet to assist in controlling the distribution of copyrighted works.

This three-part agenda -- controlling digital media devices, controlling analog converters, controlling the Internet -- is a frightening peek at Hollywood's vision of the future.

The ACM, the oldest computing organization in the world, opposes the CBDTPA. We're also advised that they are following BPDG and other legislative efforts.

(Thanks to EFF intern Sarah Granger.)

The MPAA's Content Protection Status Report (published by the Senate Judiciary Committee) is a horrifying and important document. If you read nothing else about the future of technology this month, you should read this.

While the entertainment industry is marching toward an all-digital future environment where robust digital content protection measures will enable a viable market, analog connections to conventional televisions, VCRs and the like will remain for a long time to come. This presents a problem in that digital devices can capture and digitize unprotected analog signals (including formerly protected digital signals that are stripped of their protection as they pass through analog outputs) with complete disregard for current analog copy protection mechanisms, thus enabling a major source of unauthorized duplication and/or redistribution. This attribute will keep analog devices and interconnects around well past their natural extinction.

The primary means to address this issue, dubbed the "analog hole", is via embedded watermarks [...] In order to help plug the hole, watermark detectors would be required in all devices that perform analog to digital conversions. In such devices (e.g., PC video capture cards), the role of the watermark detector would be to detect the watermark and ensure that the device responds appropriately.

Dan Gillmor of the San Jose Mercury News (who has written about BPDG before) was, like other journalists, prevented from subscribing to the BPDG mailing lists.

(M)eetings of CPTWG and its sub-groups are intended to provide for open and frank discussion of technical issues. Engineers and other participants should feel free to bring up ideas, however preliminary, without concern for having statements attributed to them or their companies in the press. This consideration carries more weight than the generally public nature of CPTWG meetings, as CPTWG (and by extension BPDG) is not a formal decision-making body.

Therefore under our established rules and practices, LMI is not to add any individual of the press to the BPDG-Tech reflector. Members of the press can, of course, feel free to directly approach anybody for the purposes of an interview on the subject of CPTWG and its sub-groups (or any other subject that they feel is relevant), and are encouraged to do so.

Remember, you can sign up for the BPDG mailing lists (providing, of course, that you're not with the free press) and voice your objections as the group proceeds to neuter the technology industry, eliminate your fair-use freedoms, curtail innovation and outlaw free and open-source software.

A May 8 Business 2.0 article by Eric Hellweg discusses the ReplayTV litigation and BPDG.

Two sources who attended the meetings -- and provided me with their notes -- don't paint a pretty picture of what happened behind closed doors at the late-April BPDG meetings in Los Angeles. In one exchange, in which consumers' fair-use rights were being discussed, Andy Setos, president of engineering at Fox Broadcasting, admitted that consumers' fair-use rights (granted by Congress in the 1992 Audio Home Recording Act) would be negatively affected by the group's proposal. "One thing is for sure," he reportedly said. "There are fair uses that this document precludes." (When asked to confirm these remarks, Setos insisted that he never made them.)

That's interesting -- I remember hearing Andy Setos say that! (I think it was part of the "content protection comes first" exchange, in which Setos said several memorable things which ought to cause concern for every user of copyrighted material.) The controversy over whether he said this, though, is a fine example of why having the press at these events would be helpful. It's clear that journalists are continually missing valuable material which would improve their coverage of BPDG.

By the way, consumers' fair use rights weren't "granted by Congress in the 1992 Audio Home Recording Act" (which doesn't apply to TV broadcasts); the particular fair use rights at issue are mainly those affirmed by the Supreme Court in 1984 in the Betamax case. There are parallels between the AHRA and the currently-proposed legislation because both contain technology mandates (in fact, both mandates have been drafted by several of the same attorneys). AHRA, like most industry-negotiated legislation, is a complex issue -- about which we should have more to say in the future.

The Digimarc Corporation, a watermark vendor, has suggested that the scope of a digital television mandate is likely to expand in the future.

In a message from Digimarc VP Reed Stager, the company suggested that the broadcast flag by itself is probably technically insufficient to prevent unauthorized redistribution of digital TV broadcasts. Although there are several reasons for this conclusion, Stager presents only one: the "analog hole", or the fact that an analog video signal can easily be digitized.

Stager notes that the original proposals on which the BPDG's work is based considered both a "broadcast flag" and a "broadcast watermark". (Possibly in the interest of speed, most companies involved decided to drop the watermark proposal for the time being. Earlier submissions from watermark vendors showed that they considered this unfortunate, and hoped to reverse that decision in the future.)

Stager argues that the broadcast watermark is important and that, if it's not to be included in the BPDG's standard, a notice ought to be provided that the broadcast watermark may be standardized in the future. He proposes a new section X.12 with a notice to manufacturers that they can expect the mandate to expand:

The requirements anticipate that they may be expanded in the future to include a broadcast watermark to carry the "no redistribution" state, especially in regard to securing analog outputs, and that these requirements and the definition of Marked Content may be modified accordingly.

In general, Digimarc's submission argues that "closing the analog hole" -- identified as one of the MPAA's major legislative wish-list items -- is essential to the success of a digital TV mandate. It's presented, not as a separate issue, but as a key requirement for making what BPDG is doing work. The "broadcast watermark" would likely be implemented by a mandate that analog-to-digital convertors include circuits to detect and respond to it, so that consumer equipment couldn't digitize copyrighted broadcasts or other copyrighted video signals.

Digimarc has an obvious business interest in the adoption of a watermark mandate, but the technical arguments it presents are not without merit. Essentially, watermark vendors argue that the mandate currently being proposed is insufficiently broad and insufficiently intrusive to be genuinely technically effective. Without endorsing the conclusion that the mandate therefore ought to be far broader, we can see merit in this contention.

Indeed, we've made a parallel argument ourselves: This proposal can't even be minimally effective at preventing infringement unless all analog-to-digital conversion can be controlled. Perhaps we shouldn't be giving certain watermark vendors ideas.

The MPAA has rejected the Microsoft and Philips DRM proposals (which the latter companies had submitted as Table A candidates). It also off-handedly rejected DigitalConsumer's suggestions:

In addition, relative to certain other proposals, MPAA Member Companies note that the scope of BPDG is to define the technical requirements and mechanisms for protection of digital broadcast content, not to debate or comment on the application of fair use principles.

MPAA provided three documents with comments on the Microsoft and Philips proposals and on the Table A criteria proposed in the most recent draft. We'll publish these as soon as possible.

Two of the documents are apparently based on a technology-rejection form letter which includes the text

Unfortunately we cannot agree to include your technology at this time. As you know, evaluating technologies usually requires extensive give and take, and a decision can not made on just a few conversations, presentations, or demonstrations.

(Emphasis added.) It certainly sounds to us as though the MPAA is confident of its prerogative to decide which technologies will be legal for use with digital TV broadcast. Rather than "we cannot recommend" or "we cannot endorse" a technology, the member studios say "we cannot agree to include" it.

Jane Black at BusinessWeek has published an article on BPDG and open source (part of a larger BusinessWeek feature on Linux and open source) which criticizes BPDG and the CBDTPA. (It also discusses criticisms of the DVD CSS negotiation -- which are second nature in the Linux world, and heresy in many consumer electronics circles. The most recent BPDG negotiation showed that attitudes toward CSS are a fairly good prediction of attitudes toward a broadcast flag mandate.)

The problem is, in their zeal to dictate how hardware and software makers build their equipment, the movie and music moguls would mess with matters that are none of their business, critics say. Embedding copyright-protection mechanisms into new PCs and other digital devices would mean inserting pieces of software code that are hidden, or locked down, and couldn't be altered. That would amount to nothing less than an assault on the open-source religion, which advocates sharing, collaboration, and free access to code.

A crucial feature of the Linux operating system -- the basic software that controls a computer -- is that any part of it can be modified by its users, as long as they agree to make the modification available, for free, to the world at large. Locking down Linux could destroy this dynamic, on which plenty of corporate software developers now depend, and also bar open-source programmers from the $80 billion consumer-electronics market.

In the past two weeks, we've seen a stream of proposals for Table A technologies. There is still some debate about whether the BPDG itself ought to be recommending these technologies (rather than leaving them for approval by some future entity). This discussion conceals in the background the much more significant debate about whether the Hollywood studios should decide which technologies the public may use for home recording, which is of far greater consequence than the fight over any particular technology. Technologies may come and go, but legal precedents, cultural habits, and political patterns long outlive them.

Six entities, acquiescing at least provisionally in the suggestion that the BPDG's approval or disapproval means something, have so far submitted proposals for Table A technologies with corresponding Associated Obligations. They are the licensors of HDCP, DTCP, CPRM, D-VHS, Microsoft Windows DRM, and a new DRM system from Philips.

Philips has also challenged the submission of DTCP by DTCP's licensor, which is called the "Digital Transmission Licensing Administrator", or DTLA. (DTLA's name seems particularly unfortunate, because it implies that digital transmissions need to be licensed by somebody. It sounds like something out of a science fiction novel, perhaps John Brunner's The Shockwave Rider, which gave us the classic line "This has been an unauthorized cybernetic announcement.")

Philips argues that the DTLA's submission of DTCP is deficient in various ways, and DTLA replies that it is not. This argument is particularly strange because there is no apparent consensus on how to decide whether a particular proposal is deficient or acceptible. Clearly DTLA's submission is acceptible to its member companies and many of its licensees, and unacceptible to other companies. The result is an apparent impasse.

What seems particularly interesting to us is that earlier drafts of the BPDG rules included four technologies on Table A: HDCP, DTCP, CPRM, and D-VHS. These technologies were listed as "approved" long before anyone had even begun to discuss what would be necessary to qualify a technology as "approved", suggesting that their approval was a foregone conclusion. Philips has subsequently asked -- and we're wondering, too -- just how and why those four technologies were chosen.

If a legislative mandate does result from BPDG's work, inclusion of a technology on Table A will be a tremendous boon to that technology's licensor -- a government license potentially worth millions of dollars, and a tremendous competitive advantage over those technologies which don't appear on Table A and are consequently left in a legal limbo. This alone seems like an excellent reason to look very closely at how such decisions are made.

Jon Healey at the L.A. Times has published a skeptical article about BPDG. The focus on DVD recorders is interesting; Healey's piece suggests that DVD recorders would probably encrypt recorded TV programming using some new encryption scheme. "A likely result, critics say, is that DVD recorders will automatically scramble the programs they record from local digital channels."

But the legislation itself can't alter how DVD recorders work. The key point is that it will be illegal for manufacturers to produce certain devices which enable certain uses. That doesn't mean that manufacturers will be able to devise easy alternatives to those devices. So the default result under the current proposal is that recording to DVD is simply prohibited entirely, because there is currently no "Approved Recording Method" which uses DVD.

DVD recorders are a great example of a consumer-friendly technology which can be used with digital TV today but wouldn't work under the proposed mandate. And, again, this is not because of some particular animosity toward DVD, but because of the attitude that it's the legal responsibility of the creators of technology to control how customers can use it. It's time we started posting some more quotations from the Betamax era to highlight the great antiquity of this point of view.

Andy Setos distributed an updated schedule for BPDG's work, which pushes the existing deadlines back somewhat. The dates in the new schedule are as follows:

• Wednesday, May 15. Deadline for comments on the recent May 11 rules draft.
• Friday, May 17. A draft of the report of the co-chairs will be distributed, including proposals for Compliance and Robustness Rules, Table A recommendations, and other accompanying materials.
• Friday, May 24. Deadline for comments on the May 17 report draft.
• Friday, May 31. The final report will be distributed.

Bradley Kuhn, Executive Director of the Free Software Foundation, sent the following to the BPDG:

Dear Michael, co-chairs, and fellow BPDG members,

I am the executive director of the Free Software Foundation. I was only recently made aware of the activities of the BPDG, and thus am a late comer to the discussion. However, according to the CPTWG, this subgroup is open to all organizations who have an interest in its recommendations. Having read the relevant material, it is clear that the requirements on "Covered Products" set forth in the Revised Requirements Draft Proposal will have a direct and negative impact the work of Free Software developers, and thus a direct impact on the Free Software Foundation.

Before I discuss the details of that impact on Free Software, I will give some brief background on our organization. The Free Software Foundation is a 501(c)(3) non-profit that was founded in 1985. We promote and create software that is Free as in freedom; the user has the freedom to copy, redistribute, and modify all Free Software. In the 1980s, we started development of a completely Free Software Unix-compatible operating system, called GNU. Available today as modern GNU/Linux systems (whose name is often shortened to "Linux"), this operating system has an estimated twenty million users worldwide. GNU/Linux is widely used and redistributed by large corporations such as IBM and HP. While the system has thousands of contributors, FSF remains the largest single copyright holder of the core GNU/Linux system.

From my understanding of your requirements draft, it is likely that a GNU/Linux system and other related Free Software will eventually be considered Covered Products. Currently, many people use GNU/Linux systems to view television broadcasts; I doubt this will change as HDTV becomes more widespread. Thus, FSF is gravely concerned about what this proposal will mean for GNU/Linux as a Covered Product.

Most Free Software that can decode broadcast signals would not typically fit the requirements in Sections 3.a and 3.b of the proposal. However, even if Free Software developers did make efforts to implement those restrictions, it would be utterly impossible to adhere to most of the other requirements in the proposal---in particular, but not limited to, Sections 7.a, 7.c, 11.a, and 11.b.

Free Software is designed around the idea of sharing information and advancing human knowledge---the core principles that made the modern advent of digital technology possible. FSF and Free Software developers around the world share the source code of all Free Software programs. Free Software licenses give users the freedom to modify the software as they see fit.

Thus, requiring a software product to "frustrate" the user is in direct conflict with users' ability to modify the software to suit their needs. We have no way to tell why the user would like to modify the software---perhaps it is for the purposes of infringing copyright, but usually it is not. Most of the time, users simply wish to enhance the software to fix bugs or make it work better for the community.

Also, with Free Software, all of the generally available standard tools for analyzing software would show the user how to make modifications to the product. In fact, this is the goal; developers of Free Software are encouraged to improve it to help the community of users. Perhaps a few will "improve" it by causing it to violate Section 3 of your draft; most others will simply improve it to make it more robust, more reliable, and to provide better features.

Since everyone agrees that adoption of digital television technology is important, it seems to me that this working group should seek a consensus that allows the largest possible Free market to innovate around digital technology. The proposed draft summarily dismisses Free Software from the innovation space, and I seen no easy way to repair the draft to treat Free Software on equal footing. I suggest the adoption of an alternative draft that asserts the rights of innovators to use Free Software in Covered Products. I believe that EFF has circulated such a draft.

As it stands, FSF opposes the Revised Requirements Draft Proposal.

Sincerely,
Bradley Kuhn

Hollywood says that there will be no public acceptance of HDTV until "High Quality Content" (i.e., Hollywood movies) are available in as high-def digital TV signals -- this is the basis for setting aside innovation and the public's freedom to fair use. Flimsy as that rationale is, it doesn't even bear up to most cursory scrutiny. Entrepreneurs like Mark Cuban have been broadcasting "High Quality Content" that they're making in their own studios, without any help from the traditional studios.

Now, NBC is following suit, broadcasting more and more of primetime in digital high-def, without waiting for Hollywood to establish its comfort with new tech. Just as it should be.

Do you work for an organization which is being asked to take a position on the BPDG draft? (EFF is well aware that many organizations will be asked this week to take positions; we are among those making such requests.)

If so, would you be willing to let us know who is asking your organization to take a position, and what your organization is being told? (We will not publish your identity.) For instance, at the last in-person meeting, the CE co-chair indicated that every consumer electronics company in the United States would receive a copy of the draft proposal and asked for its opinion. Is this happening? Are industry groups issuing recommendations to their members?

We also welcome comments via anonymous remailer, if you want to be especially careful to protect your identity. Or call your favorite journalist, if you prefer, as journalists are traditionally careful to protect their sources. Help get the story out.

Dan Gillmor, of the San Jose Mercury News, has picked up on the CableWorld interview with Turner Broadcasting's Jamie Kellner, in which Kellner, asked about personal video recorders, replied

Because of the ad skips. ... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.

Gillmor thinks this is part of a larger pattern of behavior by entertainment industries.

Two reporters were removed from the BPDG's mailing lists for violating BPDG's policy against journalists. They are Drew Clark of the National Journal's Technology Daily and Katherine R. Lewis of Bloomberg. Both have been covering BPDG's work.

EFF made the following comment on this event (after which one participant suggested that we, too should be kicked off the list for redistributing BPDG drafts and discussions).

The Electronic Frontier Foundation continues to object strongly to the exclusion of members of the press from these discussions, which have been characterized as "open" since their inception.

It's vital that members of the public be aware of the existence and substance of these discussions, yet BPDG has done little to solicit public comment or to facilitate awareness of its existence by anyone other than habitual CPTWG attendees (much less undertaking to explain the details of the proposals to a lay audience).

Indeed, even today, as the co-chairs suggest that BPDG may be close to wrapping up its work, the only public web site devoted to BPDG is maintained, not by CPTWG or any of the co-chairs, but by EFF. In this case, members of the press are traditionally the single most important channel to create awareness and understanding of the proposed standard and its relevance to consumers. Continuing to exclude journalists (in the absence of publication of any minutes, drafts, summaries, abstracts, etc.) casts substantial doubt on the BPDG's enthusiasm for public scrutiny and on the openness of the process in general.

"Oops, we inadvertantly allowed that to remain an open standard!"

Back in the days of the Digital Millennium Copyright Act (DMCA), the idea was simple: publishers could seize control of proprietary formats and prevent all "unlicensed" or "unauthorized" implementations. So, if they invented a digital format or medium, you couldn't create interoperable devices without permission.

This lead to odd results: even if you knew how to make your own player for something (like RealAudio or DVD Video), you could be forbidden to. And lawsuits against independent implementors have been all too successful at suppressing them and enforcing an unprecedented "paracopyright" power. At the same time, there was no suggestion that your use of open formats could be controlled:

Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).

17 USC 1201(c)(3). (This is known as the "no mandate" provision of the DMCA. If some publisher wanted to use an open technology standard, it wasn't entitled thereby to insist on control of how others implemented that technology.)

The BPDG rules are, by contrast, meant to be part of a government mandate. This means that your use of a published open standard format -- in this case, the ATSC television standard and the 8/VSB modulation technique -- can be regulated. Though ATSC is a published, documented, and open set of technical rules, the law toward which BPDG aims closes it back up again, and reserves its use to a limited set of products. And portions of those products are to be subject to licensing rules every bit as severe as the CSS Procedural Specifications for DVD Video. That's right: Because Hollywood wants to use a open standard, technologists have to act as though it were a closed, proprietary standard, available only under license. This kind of power-grab over open standards was what 1201(c)(3) was intended to prevent, but now Hollywood complains that digital television broadcast is simply too important technology to remain openly available to the public.

Now the use of modulators -- which convert video to a radiofrequency signal -- is supposed to be regulated, too! So ATSC transmitters as well as receivers are going to be controlled by this regime. (This is the digital TV equivalent of the "RF adaptor" you might have used to connect your VCR or Nintendo to an older TV set, and now it will come with its own compliance rules.)

The proposal from Fox to include modulators as well as demodulators within the BPDG rules, and so to bring the whole of the previously open ATSC transmission standard within regulatory control, is included below.

Mayday! Mayday! This April article by Jon Healey at the L.A. Times shows the great majority of terrestrial TV stations will miss today's deadline for beginning to broadcast digitally.

Under the FCC's transition plan, stations were supposed to begin broadcasting digital programming today, but would be allowed to continue their existing analog broadcasts until 2006.

A number of stations (273, Healey reports, as of April 8) have started their digital broadcasts. But most apparently haven't made it.

A new Philips press release says Philips has "lost all confidence" in the BPDG consensus.

In essence, through their private contractual relationships, this small group of studios and companies would control digital TV technology and how people use their TVs, DVDs, and other devices in the privacy of their homes.

"The current direction," Blanford said, "is not in the interest of sound public policy, is not in the interest of the affected industries, and is certainly not in the interest of the consumer."

Philips has expressed concerns (not explained in detail in the press release) including the risk that the BPDG's rules would forbid home recording of digital TV broadcasts onto recordable DVD media.

The Philips press release is included below in its entirety. This statement makes Philips the first BPDG participant from within the consumer electronics industry to dissent broadly from the process. Who's next?

Jack Valenti of the MPAA has delivered some very impressive testimony with a tremendous amount of Valenti's trademark (or should we say copyright?) rhetoric: "thieves", "pirates", "pilfering", etc.

We'll soon post Valenti's 1982 testimony on the VCR menace -- nowhere available on-line, it uses astonishingly similar tactics and arguments! There, as here, Valenti paints the copyright industries as having a paramount importance to the American economy; there, as now, he claims they're besieged by technically-savvy criminals, against whose threat a Congress which failed to act promptly would be not only economically foolish but also morally weak. There, as now, he holds new technology itself responsible for infringement; there, as now, he makes apocalyptic forecasts about what unregulated innovation might do to his industry.

One of Mr. Valenti's considerable talents is making assertions and assumptions the refutation of which would exceed his audiences' attention spans. His recent testimony expertly deploys this approach: Valenti appears as the straightforward, direct, plain-speaking industry leader. Someone who took the time to analyze Valenti's claims in depth, however, would appear tedious, dull, and lawerly.

For instance, if the testimony should contain an inaccurate characterization of how copyright law works, it would nonetheless be a plausible-sounding mischaracterization. The would-be Valenti critic would then begin to explain carefully how Valenti had gotten the law wrong -- and would seem pedantic and tiresome by contrast.

What's the relevance of this testimony to BPDG? Only that Valenti again mentions the "broadcast flag" as a major long-term legislative goal:

In testimony before the Judiciary and Commerce Committees I have outlined a number of specific goals relative to the development and adoption of technology standards by the Information Technology (IT), consumer electronics (CE) and copyright communities. These include the adoption of a "broadcast flag" to prevent unencrypted over-the-air digital television broadcasts from being redistributed on the Internet; adoption and implementation of technology to plug the "analog hole" whereby protected content is stripped of its protection through the digital to analog, or analog to digital, conversion process, and the adoption and implementation of technology to limit the rising tide of unauthorized peer-to-peer file distribution of copyrighted works, of which I have spoken. The attainment of these goals is key to the viability of a legitimate marketplace for the online digital distribution of motion pictures, and we look forward to continuing to work with the IT and CE industries, as well as your colleagues on the Judiciary and Commerce Committees, to achieve a successful outcome on this front.

What does the broadcast flag have to do with "the viability of a legitimate marketplace for the online digital distribution of [Hollywood] motion pictures"? Is there a suggestion that legal sales aren't "viable" when they have to compete with some illegal distribution?

Look closely at this suggestion: Valenti doesn't say that we have to enforce copyright law in order to make legitimate sales viable. He says that, in order to make Hollywood feel comfortable with the Internet, we have to have not one, not two, but three government mandates on major categories of technology (digital TV receivers, video digitizers, and Internet software).

Major U.S. daily USA Today has picked up the BPDG story with a piece called "A debate on the rules of digital recording". (Thanks to Ernest Miller from LawMeme for the link.)

The article is general and addresses process issues more than technical details.

We should note that the BPDG proposal is only about terrestrial broadcasts. References to cable, satellite, and video on demand may be confusing here -- sure, major studios are attacking your fair use rights in every flavor of digital video, but BPDG's work in particular is directed only at terrestrial broadcasts (what most people call "over the air").

Mark Cuban is the Chairman of HDNet, the first all-HD, national TV network. In a speech at the NAB conference, he called on broadcasters to "just completely ignore" Hollywood in the fight over digital rights management," calling the studios' fears a "chicken little environment."

Warren's Washington Internet Daily reported on the speech, where Cuban recommended that manufacturers simply continue to ship product, and allow Hollywood to make its own decision to provde content -- "if they don't, there are thousands of content producers who would be happy to take their place."

Hardware and software don't steal content, people steal content. As a copyright owner of TV shows, movies, music, and a sports team, and the co-founder of HDNet, the only all HD TV network, and probably the only individual who has personally invested in accelerating the return of billions of dollars of spectrum to the U.S. government, I think the Hollings bill is probably the biggest single mistake that our government can make.

The party line at the BPDG is that the mandate it's devising will accelerate and facilitate the adoption of digital television. (Art Allison of the National Association of Broadcasters uses "Yours for enabling a rapid DTV transition" as his customary sign-off in his e-mail.) Why would a government-imposed mandate help the transition? The theory is:

1. DTV will be popular when Hollywood provides Hollywood movies;
2. Hollywood won't provide movies until there is "broadcast protection";
3. BPDG will provide broadcast protection;
4. Therefore, BPDG is helping make DTV popular.

Of course, there's another perspective --

1. TV stations are ready and willing to begin DTV broadcasts;
2. Hollywood is withholding movies from the TV industry in order to try to control the development of the technology;
3. This decision by Hollywood is harming the popularity of DTV;
4. BPDG's work to try to appease Hollywood is increasing the cost of DTV equipment, creating uncertainty about the future of DTV, and diminishing the capabilities of DTV hardware sold to consumers.

Presumably everyone agrees that the DTV transition is delayed or made less sure and rapid "because of copyright concerns". A basic disagreement is whether this is the fault of large copyright holders (who deliberately withhold content even as the technology and infrastructure are deployed) or whether, on the other hand, technologists are to blame for not having done what some copyright holders wanted.

An Associated Press article found by reader Alex Rose discusses the possibility that restricting customers' recording abilities could hurt the transition to DTV. We've heard that suggestion frequently. The article goes on to discuss FCC Chairman Michael Powell's plans for DTV transition, and the new HDTV advocacy group created by Dale Cripps and colleagues. It also mentions the work of the Digital Consumer project for protection of the public's fair use rights.

A new PC World article by Tom Spring gives some background on contemporary digital copyright issues and also discusses BPDG's work. It includes a quote from EFF's and Consensus At Lawyerpoint's own Fred von Lohmann.

The article also mentions the concerns of Jim Burger of the Computer Industry Group: "What happens when this technology gets hacked, as it will? Then do we spend millions more dollars coming up with another solution?"

Unfortunately, the issues seem to be so complex that journalists have to spend many column-inches just to bring their readers up to speed on background information. Then there's little space left to delve into the specifics of BPDG, what devices would be affected, how consumers and manufacturers might be harmed, etc. This is tricky material, and most readers simply haven't seen it before. And the acronyms aren't helping, either. (We're not sure about Spring's suggestion that the BPDG mandate restricts video outputs "over a TCP/IP network" yet not "via IEEE 1394" -- as far as we can tell, the distinction is phrased in more general terms and doesn't list specific technologies at that level. But since the BPDG draft is still incomplete, it's hard to be certain.)

We welcome the increased press attention to copyright issues and technology mandate controversies. Members of the press who write relevant materials are encouraged to let us know; we'll be happy to link to your work. In general, if you come across something relevant, please drop us a line.

A News Corp. press release on the CBDTPA and BPDG just came out on Declan McCullagh's Politech mailing list. The release praises almost everything we've criticized recently, but, more significantly, it lends a great deal of credibility to the idea that the CBDTPA was introduced solely for its effects in terrorem: in other words, to encourage the electronics industries to negotiate about the broadcast flag issue -- at lawyerpoint.

The release refers to the broadcast flag as a "voluntary standard"; I invite Mr. Chernin to commit himself that it should remain so. Otherwise, I encourage him to use a more accurate term like "pending legislative mandate".

The full text of the News Corp. press release is included below.

BusinessWeek On-line has an excellent article on the CBDTPA and related issues by Heather Green.

Green's article takes a broad view of Hollywood's control over the development of technology, and it even includes a mention of the CPTWG/BPDG activity:

Little by little, Hollywood is calling the shots when it comes to the Digital Age. Standardization and legislative work is going on in bits and pieces, making it difficult to fully understand how much traditional consumer rights could ultimately be infringed upon. For instance, an organization called the Copy Protection Technical Working Group currently is hard at work hammering out plans for preventing piracy with digital TV.

Remember, though, Hollywood's notion of piracy has traditionally differed from consumers'. Studios want to prevent widespread digital distribution of TV shows, as happened with music à la Napster. However, they could actually end up barring viewers altogether from recording TV programs off the air.

Some very high-stake issues are on the table right now. The problem is that between the fear mongering and the sheer technical impenetrability, it's hard to predict how much decisions made today would eventually hamper the potential of digital devices and distribution.

And that's the crux of the matter. "Hollywood's notion of piracy has traditionally differed from consumers'" -- and from of view of the courts, as well. (For instance, Hollywood maintained two decades ago that the "VCR avalanche" would make it "bleed and bleed and hemorrhage, unless ... Congress at least protects [our] industry ... from the savagery and the ravages of [the VCR]".)

So we hear a great deal of rhetoric about restricting technology "in order to keep honest people honest". But there's nothing dishonest about fair use. There's nothing dishonest about home recording. Consumers are being asked to give up their rights "to keep honest people honest". Don't believe the hype.

Forming this week at the National Association of Broadcasters convention in Las Vegas: a high-definition-TV advocacy group spearheaded by HDTV Magazine publisher Dale Cripps and editor in chief Howard Barton and communications attorney Tedson Meyers.

The group reflects the concerns of HDTV owners, many of whom are upset about the slow flow of high-definition broadcasts and the threat of new copy protection measures that could erode the usefulness of the more than 2 million expensive sets sold to date.

Early adopters "feel a little bit knifed in the back, and I don't blame them," Cripps says. The group, which expects to announce its name and plans later this week, will lobby Congress and educate consumers about HDTV's benefits.

We'd love to hear more from this group once it announces itself.

Thanks to Phil Agre's Red Rock Eater News Service for the USA Today article -- and a link to Consensus At Lawyerpoint.

But we want to narrow the focus of the bill as the legislative process moves forward. What needs to happen is we all sit down together in good-faith negotiations and come to some conclusions on how we can construct a broadcast flag (for keeping digital TV content off the Internet), on how we plug the analog hole (allowing people to record digital content off older televisions and other devices), and how we deal with the persistent and devilish problem of peer-to-peer.

(Emphasis added.)

So Valenti doesn't expect to have the Hollings mandate legislation passed as it stands; instead, he expects it to be narrowed to include the BPDG mandate and a few other issues. The connection between the BPDG and the SSSCA is clearer and clearer all the time; Valenti doesn't expect a broad mandate but does want a series of narrow mandates. MORE...

Perry talked about why consumer electronics industries are supporting "broadcast protection" initiatives...

Basically, the negotiations are working on a broadcast protection system that does not affect current product, but at some point in the future would prevent a recorded digital broadcast from be transmitted or published on the Internet. In general, the CE industry supports such a protection, since Internet rebroadcast is not a consumer "fair use" issue.

(Emphasis added.)

The ability to publish recordings in their entirety on the Internet isn't a consumer fair use issue. However, the collateral damage associated with preventing republication certainly is a consumer fair use issue. In order to prevent movies from being "rebroadcast" after they are transmitted over the air, BPDG is prepared to do some violence to home recording.

In subsequent articles, we'll talk about whether there's really a credible threat addressed by the BPDG proposal, and about why Mr. Perry is mistaken when he says "consumers' 'fair use' home recording rights are very important [and] 1394 [5C/DTCP] preserves them".

You'd think that the criteria would be technical. You'd be wrong. The studios want the criteria to be entirely subjective. They're cooking up formulae for addition to the table that work like this: "If n studios and m broadcasters are willing to use your device, you're in." The studios came for a polite deliberation of the values of n and m, and were outraged when 5C (a consortium of five companies) and Philips had the temerity to venture proposals that contained actual, technical specifications for Table A. MORE...

What an extraordinary definition of "open!" Yesterday's meeting convened at 8, burst into flames over Table A around 11, broke for lunch at noon -- and never reconvened. All the heavyweights in the room -- the Fox people, the Disney people, the Microsoft people, the Philips people, the Sony people, and so on -- caucused in the hallway from lunch until after six p.m.. Theoretically, they were hammering out a proposal for Table A inclusion to present to the whole group, but when they popped their heads back in after dinner, all they had to report was that they would have something to report on Friday.

• Global Telemann's HiPix DTV-200
• Videon Central's Foghorn
• Hauppauge's WinTV-HD

Each of these, as far as we can tell, is a PCI card for an ordinary PC which gives an end-user the ability to record digital TV broadcasts to MPEG. And therefore each one would be banned under the BPDG's rules.

Can you think of other examples?

His alternatives include a "marketplace license." This may refer to a policy change in which terrestrial broadcasts are encrypted and then TV equipment manufacturers obtain a license to the encryption technology -- which includes licensee obligations, of course.

Most alternatives rely upon a statute or regulation. If the above is corrent, then the "marketplace license" alternative relies on existing legislation, like the DMCA, and need not include any new technology mandates. Encrypting terrestrial broadcasts has been an extremely unpopular idea, and it's clear from the meetings and conference calls that the MPAA members in BPDG assume that the enforcement mechanism of choice is either an FCC regulation or legislation passed by Congress.