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.

Dan Gillmor of the San Jose Mercury News writes in favor of consumers' rights.

In the world of electronic devices, digital entertainment and software, customers are routinely subjected to restrictions that forbid modification of products they've already purchased.

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.

The Federal Communications Commission will consider, on August 8, a Notice of Proposed Rulemaking which appears to relate to the broadcast flag in some way.

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.

Rep. Tauzin's round-table group is reconvening Monday, July 15, for further discussions. We'll provide more details when we have them.

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.

The MPAA published a FAQ on the broadcast flag. Our detailed comments below.