[News]
EFF letter to Rep. Tauzin

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.

June 11, 2002

The Hon. Billy Tauzin
2183 Rayburn House Office Building
Washington, DC 20515-1803
BY FAX (202) 225-0563

Dear Representative Tauzin:

I am writing today about the digital television (DTV) roundtable you are holding today, where I understand that the Final Report of the Broadcast Protection Discussion Group (BPDG) will be discussed. I would like to draw your attention to the unfortunate lack of consumer input in the BPDG process.

The Electronic Frontier Foundation (EFF) has attended and participated in every BPDG meeting and has consistently decried the lack of transparency that has marked the process from the outset. As you may know, the EFF is a membership-supported nonprofit organization devoted to protecting innovation, free speech, and civil liberties in the digital age. We are quite concerned that the “broadcast flag” technology mandate that may ultimately emerge from the BPDG process will harm consumer interests and slow DTV adoption.

The attached document addresses the lack of consumer participation in the process, and what we feel are the resulting flaws in the Final Report. I hope our views may be of assistance to you in your efforts to oversee the DTV transition.

Please feel free to contact me if I can be of further assistance to you or your staff on this matter.

Sincerely,

Fred von Lohmann
Senior Intellectual Property Attorney
(415) 436-9333 x123
fred@eff.org

enc.

Consumer Concerns regarding the Final Report of the BPDG

The Broadcast Protection Discussion Group (“BPDG”) was convened to afford “affected industries” the opportunity to discuss the issue of unauthorized Internet redistribution of unencrypted digital television broadcasts (“DTV”). The Electronic Frontier Foundation (“EFF”) has attended the meetings of the BPDG and participated in the BPDG process from its inception.

Based on our participation in BPDG, EFF believes that the interests of consumers have been inadequately represented in the BPDG process, leading to serious flaws in the draft “broadcast flag” standard (the “BPDG Standard”) proposed in the June 3, 2002, Co-Chairs' Final Report.

Inadequate Representation

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 highly technical nature of the discussions also posed barriers. The BPDG organizers failed to make any efforts to brief interested groups regarding the details of the technologies being considered, nor their potential impact on consumer interests. The exclusion of journalists further exacerbated the problem.

Although the EFF was able to participate despite these barriers, many important consumer voices were underrepresented in the process. Many of the shortcomings of the Final Report reflect this failing of the BPDG process.

A Threat to Fair Use

The BPDG Standard in its present form frustrates the legitimate fair use expectations of the public. For example, today, a father who spots his son in the local news college sports highlights can record the relevant video clip and attach it to an email message. The BPDG Standard would make this impossible.

The BPDG Standard will also stunt the future evolution of fair use. Under the Standard, technology innovators will not be able to introduce new DTV technologies unless they first implement one of the “Hollywood-approved” protection schemes (see “Table A” in the BPDG Standard). So, for example, if a company was interested in developing a system that would permit you to “stream” DVDs that you own from your living room to your vacation home (such “space-shifting” of media you own has been recognized as a fair use), the BPDG would make it impossible.

The upshot is simple: unlike in every other area of digital media technology, in the DTV arena new fair uses will be contingent on the prior consent of Hollywood. If this had been the rule in 1976, when Hollywood movie studios sued to ban the Betamax VCR, the Supreme Court would never have been able to add “time-shifting” to the lexicon of fair uses. If the BPDG Standard is adopted, consumers will never know what future fair uses will never see the light of day.

Proprietary Standards Harm Consumers

The BPDG Standard also harms consumers by stunting innovation and competition, thereby denying them the benefits of a vibrant marketplace of new DTV technology. Rather than embracing open technology standards, the draft BPDG Standard privileges proprietary technologies, controlled by the “4C” and “5C” companies, in the DTV marketplace.

The BPDG Standard restricts DTV innovation by limiting technology companies to a selected list of “approved” technologies (see “Table A” in the Standard). In effect, the BPDG Standard tells DTV technologists that “innovation will only be tolerated only inside the lines we've drawn for you.”

What's worse, throughout the BPDG process, it has been made clear that the list of “approved” technologies would be dominated by proprietary technologies such as DTCP and HDMI. The use of these technologies is conditioned on agreement to a private licensing regime, a regime that includes a variety of additional restrictions and conditions that have nothing to do with the goals of the BPDG.

Furthermore, since the terms of these private licenses are often confidential and subject to change at the whim of the licensors, both technology companies and consumers are essentially held hostage to the self-interested decisions of the “4C” and “5C” companies.

Bad for DTV Adoption

Because it neglects consumer interests, the BPDG Standard will serve to delay DTV adoption in the marketplace.

The BPDG process has neglected the interests and concerns of the most important part of the DTV transitionÑthe consumers. Unless consumers find a compelling reason to embrace DTV, the transition will be stillborn.

Until the BPDG process takes the interests of consumers into account, it will be a foe, rather than a friend, to the DTV transition.

For further information, contact:

Fred von Lohmann
The Electronic Frontier Foundation
Senior Intellectual Property Attorney
+1-415-436-9333 x123
fred@eff.org