[BPDG Drafts]
EFF comments on MPAA/5C Table A criteria proposal

Below are the EFF (and co-signers') comments on the MPAA/5C Table A Criteria proposal, 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: Comments on MPAA/5C Table A proposal

>* Authorization of a given technology will generally require the
>inclusion of "Associated Obligations" in Table A, which will
>pertain to the use of that technology by a Covered Product to
>protect Unscreened Content or Marked Content against unauthorized
>redistribution (including unauthorized Internet redistribution).

It is insufficient, in light of the potential for approved technologies and methods to pass revocation messages that will damage or render useless lawfully acquired end-user equipment, to note merely that there are Associated Obligations included with approved technologies and methods.

The terms of the Associated Obligations must be set out now, such terms to require that Table A technologies do not pass or respond to revocation messages.

Further, the Associated Obligations must, as per the Philips proposal, limit the copy-prevention methods of Table A technologies and methods to the least restrictive means, and specify universal interoperability with other Table A technologies, in the interests of protecting end-user freedom to purchase technologies from multiple vendors without worrying that devices will not interoperate.

>iii) A process for ensuring that a listed technology that has
>been significantly compromised in relation to its ability to
>protect Unscreened Content and Marked Content from unauthorized
>redistribution (including unauthorized Internet redistribution)
>will not be used as a technology for "at least as effective"
>evaluation pursuant to criterion (3), below.

It is our concern that this term will confer inappropriate marketplace advantages to vendors who deploy systems that are later compromised, as such technologies are likely less expensive to deploy and more attractive in the marketplace (as an increase in security often results in an dimunition of convenience) than those that will follow them.

By permitting vendors to deploy a low-cost, highly usable technology in the market and than to deny their competitors the opportunity to deploy the same, this regimen will reward those vendors who take the least care with their products.

>iv) A standard by which a technology could be removed from the
>list where such technology has been compromised (where the level
>of "compromise" is substantially higher than the level required
>for the process contemplated in paragraph iii, above), which
>standard would take into account the protection of Unscreened
>Content and Marked Content from unauthorized redistribution
>(including from unauthorized Internet redistribution), and the

EFF/VOSN/DSP/FSF strongly objects to the broadening of the BPDG mandate to limit unspecified forms of unlawful redistribution, as opposed to the limited case of unlawful Internet-based redistribution.

>impact on content owners, consumers and manufacturers resulting
>from the continued use of such compromised technology and from
>any removal of such technology from the list. This proposal
>recommends that the Parallel Group will address a process by
>which (a) requests can be made to remove a technology from the
>list on the basis that such standard has been met; (b) interested
>parties can object to such requests for removal; and (c) a timely
>determination would be made as to whether or not such technology
>will be removed from Table A (after a reasonable grace period).

It is important to ensure that in the removal of a technology from Table A will not reduce the value or utility of lawfully acquired end-user equipment that includes technology formerly included on Table A.

It would be inappropriate, for example, for removal from Table A to include revocation messages which disable the removed technology as it is implemented in devices in the field.

It would likewise be inappropriate for removal of Table A technology to include a ban or limitation on parts and consumables associated with that technology -- i.e, if a video-cassette technology is removed, the removal must not entail a ban on new video-cassettes for that technology; likewise, if an authorized output is removed, such removal must not entail withdrawal from the market of connectors and cables and other technologies associated with that output. In both cases, removal must not involve withdrawal from the market of replacement parts and tools for the repair and maintenance of these technologies.

>A technology may be added to Table A by meeting any one of the
>following criteria:
>
>(1) 3 Major Studios and/or Major Television Broadcast Groups (of
>which at least 2 must be Major Studios) use or approve the
>technology;
>
>(2) 10 Major Device Manufacturers (including software vendors)
>have licensed the technology and 2 Major Studios use or approve
>the technology.

Both of the above criteria lack any objective standard by which a new technology may be brought to market. It is inappropriate for this group to place a veto on new technologies in the hands of the Major Studios and Broadcast Groups.

Further, it is inappropriate to require 10 (or indeed, any number) of Major Device Manufacturers to adopt a technology in order to secure approval for that technology. This would establish a cartel that will effectively limit the ability of small, entrepreneurial companies to compete fairly in the marketplace.

>(3) The technology is at least as effective at protecting
>Unscreened Content and Marked Content against unauthorized
>redistribution (including unauthorized Internet redistribution)
>as is any one of the technologies then listed on Table A (other
>than technologies then deemed to be "significantly compromised"
>pursuant to the process contemplated in clause (iii) in the note
>above). A determination of whether a technology is "at least as
>effective" requires consideration of the effectiveness of both
>the technology and any applicable license terms relating to
>security (i.e., output and recording controls), enforcement and
>Change Management(2)

This is a wholly inadequate substitute for an objective criterion. As with the previous two criteria, this criterion makes it impossible for an innovator to establish a priori whether his invention will be legal in the marketplace, as it requires a subjective assessment of the equivalence of two technologies.

It is EFF/VOSN/DSP/FSF's belief that this will lead to a regimen where innovators far *exceed* the copy-prevention measures in extant Table A technologies to establish a margin-of-error, which will create an ever-spiraling diminution of end-user freedom to copy and redistribute in non-infringing ways.

>(4) The technology (together with its license terms) includes
>output and recording controls that protect against unauthorized
>redistribution of audiovisual content (including unauthorized
>Internet redistribution) and such technology was expressly named

EFF/VOSN/DSP/FSF renews its objection to the broadening of the scope of the BPDG task to include unlawful redistribution in media other than the Internet.

Respectfully yours,

Cory Doctorow
Electronic Frontier Foundation

Pieter Hulshoff
Vereniging Open Source Nederland

Jonathan Watterson
Free Software Foundation/Digital Speech Project