[BPDG Drafts]
EFF comments on the BPDG process

Below are the EFF (and co-signers') comments on the BPDG consensus and timeline, as submitted to the BPDG mailing list tonight:

To: BPDG members and co-chairs

From: Electronic Frontier Foundation, Vereniging Open Source Nederland, Digital Speech Project and Free Software Foundation

Re: The BPDG "consensus"

The BPDG's self-selected task is to create a consensus standard, a document representing the accord of the participants in the BPDG process. No document should be labeled as "the consensus standard" until it has actually been ratified by consensus at a physical BPDG meeting. At such a meeting there must be enough time and personal interaction for inconsistencies, disagreements, dissenting proposals, and other issues to be resolved. Until they are resolved, we have not reached consensus. The public and the press should clearly be invited into this process, to verify for themselves whether real consensus has occurred.

Perhaps most important, there can be no "consensus" until consumers and their representatives have had an opportunity to review and digest the proposal. The deliberate exclusion of the press from BPDG meetings has hampered this, but that is no excuse for declaring a consensus before all interested parties, including the public, consumer groups, video hobbyists, and others have been able to review the proposals.

The co-chairs should certainly be involved in leading the group toward consensus, but they cannot, by their own unilateral (or trilateral) actions, decide "what the consensus is," or represent that their opinion is the group's consensus. And if their drafting efforts fail to produce a document that gains the consensus of the BPDG membership, other members and other drafting committees should also attempt to draft positions which could evolve into consensus.

Authors of proposed consensus documents should seek to write only those principles that all parties to the process can wholeheartedly endorse, spelling out to the US Congress, the world public, and all of our customers, those elements that are genuinely agreed to by all parties.

EFF/VOSN/DSP/FSF has noticed a lack of consensus from various members regarding the drafts and schedules proposed by the co-chairs. Recent messages from Philips, Sharp and Zenith are good examples.

Without a criteria for determining when a consensus is reached, it is difficult to know how near or far we are to a final document. We note, however, that several important groups in the BPDG process continue to have strong reservations about the current draft documents. Clearly a majority vote does not determine a consensus. Quaker consensus differs from IETF consensus, which in turn differs from other definitions. Consensus in choosing a restaurant for dinner, for example, means to me that the whole initial group ultimately ends up in the same place. If a subgroup splits off and eats in a different restaurant, the diners did not reach consensus.

IETF determines that consensus exists when there is large majority, without strong dissent. If strong dissent exists, it breaks consensus, unless the majority has a strong consensus that the dissenters' objections are marginal rather than substantive. These things are seldom determined by voting, though straw polls can give early indications of where there is consensus, and where more issues and work remain. They're more often done by "humming" agreement or disagreement; if disagreement is audible then it gets explored.

If, for example, a significant 10% of BPDG did not consent to a proposal, and objected to it, that would indicate a lack of consensus to us.

EFF/VOSN/DSP/FSF has had some substantive disagreements with previous drafts, which we will summarize in a future message. As well, we have included our disagreements with the proposals for Table A and requirements, which you will find in a following document. But we wish first to resolve the process and scheduling of how the group -- not just the co-chairs -- will determine when the Discussion Group has reached consensus. We believe that the schedule which seeks to find and document consensus by May 17 is too optimistic.

Respectfully yours,

Cory Doctorow
Electronic Frontier Foundation

Pieter Hulshoff
Vereniging Open Source Nederland

Jonathan Watterson
Free Software Foundation/Digital Speech Project