We are going to bleed and bleed and hemorrhage, unless this Congress at least protects one industry that is able to retrieve a surplus balance of trade and whose total future depends on its protection from the savagery and the ravages of this machine.

The year is 1982. The inimitable Jack Valenti, president of the MPAA, is before a House panel on "Home Recording of Copyrighted Works". What does he tell them? New technology threatens to destroy the movie industry. Congress must act now!

The machine? The videocassette recorder.

For the first time ever, Valenti's historic testimony, in which he called the VCR a "Boston strangler" (as well as an "avalanche" and a "tidal wave"), is on-line in its entirety. (Thanks to Cryptome for scanning and publishing it, and to hard-working paralegals, who know who they are, for tracking down the original.)

Reading the 1982 testimony side-by-side with recent Valenti testimony and interviews is an invaluable source of historical context. It's an essential supplement to the Betamax case; Valenti's remarks came in between the 9th Circuit decision in favor of the movie studios and the subsequent Supreme Court decision in favor of Sony.

Astute copyright history fans will also note that Bruce Lehman was present at this hearing. Lehman went on to do as much as anyone else to return to copyright holders the sort of control the Supreme Court denied them in the Betamax case. Today, he's President of the International Intellectual Property Institute.

The EFF has submitted its comments on the co-chairs' final report; got it in last night at two minutes to midnight! If you or your organization would like to sign on to this, email Seth and he'll hook you up.

Comments on the Final Report of the
Broadcast Protection Discussion Group
May 29, 2002

Abstract

Below, please find the comments of the Electronic Frontier Foundation and its co-signatories in response to the report of the co-chairs of the Copy Protection Technical Working Group's Broadcast Protection Discussion Group (BPDG).

The Electronic Frontier Foundation (EFF) is the foremost technology-oriented civil liberties group in the world. It is in this light that EFF has taken a keen interest in the proceedings of the BPDG, which present a threat to civil liberties. The BPDG's objective is to write a legally mandatory "standard" that will undermine public policy interests, fair use, First Amendment rights, and the innovation that is the sweetest fruit of a competitive marketplace.

We hope that readers of the Co-Chair's Report will find in this briefing, compelling evidence of the dangers presented by the BPDG recommendations and will recognize them as the self-interested aspirations of a small, partisan group seeking to write an anti-competitive law that protects its commercial interests at the public's expense.

The BPDG "process" has been rife with acrimony, arbitrariness and confusion, to an extent that cannot be fully ascribed to mere haste. EFF believes that the failings of the BPDG process stem directly from BPDG's efforts to cloak a inter-industry horse-trading exercise in the trappings of a public undertaking, with nominal participation from all "affected industries." In reality, the representatives were hand-picked by the conveners of the BPDG to minimize any dissent, as is evidenced by the high degree of similarity between the original proposal brought to the group by its conveners and the final report that the co-chairs unilaterally present herein as the group's findings.

Throughout the process, the absence of any formal charter or process afforded the co-chairs the opportunity to manipulate the rules of the group to suit their true purpose while maintaining its illusory openness, as when the scope of the group's discussions was summarily expanded to encompass all unauthorized redistribution of feature films, as opposed to unauthorized redistribution over the Internet.

MORE...

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 call tomorrow has the following dial-in details:

Date:           Thursday 5/23 U.S. / Friday 5/24 Japan
Time:           4:00pm PDT / 7:00pm EDT / 8:00am Japan
Duration:       2 hours
Dial:           1-617-801-9781
Passcode:       4919980

Since there are a limited number of dial-in lines, all participants from an organization have been asked to dial from a single location. In addition, each organization is asked to designate a single spokesperson. Participants are also asked to keep their telephones muted when not speaking. Note that members of the press are, by CPTWG policy, explicitly not invited to participate.

We've just published the three drafts circulated by the co-chairs yesterday evening, all dated May 21:

• BPDG Final Report
• BPDG Compliance and Robustness Rules
• BPDG Table A

A draft of Table A -- showing the MPAA's views on each proposed technology -- is the newest addition to the set of documents.

The discussion draft used here is based on the "Tri-Group"'s position (which was negotiated privately outside of the BPDG's meetings). The co-chairs are proposing to base BPDG's final report on the documents indicated above.

The MPAA has proposed a "special conference call" for BPDG members to discuss two last-minute proposals (on regulations on consumer ATSC modulators, and on recording of Unscreened Content). Both of these proposals were made by the MPAA, and might be the subject of considerable debate. Several consumer electronics companies, at least, appeared uneasy about the regulation of modulators.

The call would be held Wednesday or Thursday late afternoon PT. (Both times are inconvenient for EFF, but we will try to participate.)

A draft of the BPDG Final Report has been circulated for comment by the BPDG Co-chairs. We are working on what we have to say about it.

The National Journal (whose reporter Drew Clark has been following BPDG, and was earlier expelled from BPDG's mailing list) is hosting a debate, or forum on BPDG and "Silicon Valley vs. Hollywood".

The star-studded panel includes EFF's own Sr. Attorney (and Consensus at Lawyerpoint co-author) Fred von Lohmann.

Other panelists are BSA's Emery Simon, Disney's Preston Padden, Philips's Michael Epstein, Seyfarth and Shaw's John Mitchell, Vivendi Universal's Matt Gerson, and Al Mottur of the Office of Sen. Fritz Hollings.

The event will be held on June 4 at 8:30a at the Watergate Hotel in Washington, D.C. It's free to National Journal's Technology Daily subscribers, and $300 for the public; reservations in advance have been requested.

Drew Clark will moderate.

Why are technology companies participating in the BPDG? After all, the studios are using the group to restrict what technologists can do, and create a world where new digital TV technologies have to be approved by Hollywood or a Hollywood-designed procedure.

It appears that many of the technology companies which joined the group did so with the understanding that their technologies would be on the list of approved technologies, right out of the gate.

If the BPDG mandate is enacted into law, it will be illegal (or terribly risky) to manufacture a digital television device with outputs or recording methods making use of other than "Approved" technology. All approved technologies are listed in an appendix to the BPDG rules, called Table A.

Table A has all the Approved Outputs and Recording Methods on it -- all the ways your digital television device will be able to record programming and move it to other devices. Several months ago, the co-chairs circulated a draft standard that had four technologies placed on Table A -- four technologies that were devised and licensed by the 5C and 4C companies, two groups of highly enthusiastic participants in the BPDG process.

Philips immediately objected: How did those four technologies end up on the list, months before the criteria for adding technologies to the list were established or even discussed? No explanation was offered, but the 4C and 5C technologies were (temporarily) removed.

Recently, there were six formal proposals for the inclusion of particular technologies on Table A. Four of these were the technologies which had appeared on Table A in the earlier draft; two were new "outsider" submissions from Philips and Microsoft. The MPAA promptly rejected (asserting that it had authority by itself to reject) the two new submissions, making no comment at all on the four existing technologies.

This history suggests again that the four original technologies were "shoe-ins" -- that, despite the objections of several parties, there was never any question whether they would be permitted. At the same time, both new technologies from outside the original short list have been rejected.

We've posted the MPAA's decisions on the two new technologies, so you can decide for yourself whether the MPAA is applying "technical criteria" or whether the studios decided in advance which products should be legal and which illegal.

(I invite any MPAA attorney or member studio attorney to write a guest editorial about the selection process. We will be happy to post it verbatim, with or without attribution.)

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.)

We have just published the following three documents which MPAA issued on May 15:

• Latest MPAA comments on the BPDG Discussion Draft
• MPAA rejection of Philips Table A proposal
• MPAA rejection of Microsoft Table A proposal

The MPAA comments on the recent draft reflect the MPAA's view that the proposed mandate does not go far enough. MPAA repeatedly calls for qualifications and limitations -- including restrictions on the scope of the proposal -- to be deleted, on the grounds that they are irrelevant or undermine the security of the proposal.

We're sure manufacturers will be far from pleased to behold this "mission creep".

The MPAA's rejection of the two "outsider" Table A proposals is discussed elsewhere.

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.

Joe Kraus of DigitalConsumer.org has updated his organization's proposal for a fair use provision in the BPDG document.

The new proposal suggests the following statement on users' fair use rights:

"The requirements imposed in this document, and in Sections 1201 - 1205 of the Copyright Act as applied to an Authorized Digital Output Protection Technology and an Authorized Recording Method, shall not be construed to preclude or limit a User's right and ability to make a fair use (as defined in Section 107 of the Copyright Act and construed by courts) of Unencrypted Digital Terrestrial Broadcast Content."

There is also a proposal for Table A criteria:

In addition, we would like to see the following added to the criteria for inclusion on Table A.

"The technology must, if technically possible, permit a User to make fair use of Unencrypted Digital Terrestrial Broadcast Content without the need to circumvent the technical protection, including without limitation encryption, placed upon such content by such technology."

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.

I do not like BPDG.
I don't want them in my TV.
I do not need them for HD;
I want the right to do RE.
I cannot see that I agree
with Hollings (Sen., D. of S.C.).
I cannot feel that it is just
to force demod to be robust.

I did not like 1201(k).
I wish that it would go away!
I do not see how they can say
that further mandates are O.K.
They do not even know a way --
a way they'd put on Table A --
devised by the DTLA,
or Sony, Sharp, or RCA,
to let Joe Kraus e-mail today
to his wife (she is far away)
a TV clip his son is on.
See how Joe's fair-use rights are gone!

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.

The May 10 discussion draft of the BPDG compliance and robustness rules has been posted. This draft incorporated some changes based on some parties' comments, but apparently none based on EFF's, VOSN's, FSF's, or DSP's comments.

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.

From: Electronic Frontier Foundation

Re: Draft report of the Co-Chairs

EFF have taken the liberty of drafting the following, which we respectfully request that the co-chairs adopt as their final report, accepting dissenting opinions from other BPDG members for attachment to this document as minority opinions.

We would be interested in participating in a process to make such minor revisions to this document as will be required for the co-chairs to put their names to it, certifying that this document is representative of the substantial consensus of the BPDG members and participants.

Thank you.

--

Final Report of the Co-Chairs of the Broadcast Protection Discussion Group

Having met at some length with many of the stakeholders in the coming digital television revolution, the co-chairs are pleased to announce that there is broad and substantial consensus among film studios, consumer electronics companies, computer and computer component vendors, software firms, representatives of the free software and open source communities, civil liberties and consumer rights groups, and broadcasters, satellite television and cable companies on the following principles: MORE...

The parent group of the BPDG, the Copy Protection Technical Working Group (CPTWG), will hold its next meeting in Los Angeles on June 5, 2002.

$100 gets you a seat at the table and a chance to eat a hearty catered lunch. What's more, you can make a presentation to the CPTWG just by emailing Maryann Nicoletti. In times gone by, the EFF has brought down the GNU Radio people to demonstrate the futility of the BPDG; we'd love to get your suggestions for future speakers to bring to the meeting (anyone friends with any tony anti-trust attorneys, open source video hackers, ASIC engineers, fair use advocates, or capture-card vendors who'd like to present on the technical feasibility of the BPDG mandate?)

The meeting's at the Renaissance Hotel, 9620 Airport Blvd., LA CA 90045, 310.337.2800, and it gets going at 8:30, and wraps at 4PM.

You can get a $89 hotel room next door at the Four Points Sheraton, too. See you there!

To: BPDG Members and Co-Chairs
From: DigitalConsumer.org
Re: Draft report of the Co-Chairs

The stated goal of the BPDG group is to prevent the unauthorized retranmission on the Internet of over-the-air digital broadcast television. However, the desire to prevent unauthorized commercial retransmission needs to be balanced with preserving a consumer's legal fair-use rights. Unfortunately, the current document and proposed technologies do the opposite. In an effort to prevent commercial retransmission, they eliminate many consumer rights entirely and prevent many perfectly legal consumer behaviors.

Therefore, in order to ensure that consumer's fair-use rights are adequately protected in the BPDG Co-Chair report, DigitalConsumer.org respectfully requests that the following language be added:

"For all purposes within this document, 'unauthorized retransmission' shall not refer to or include in its definition copying or transmission, within a local area network or a wide area network, of any content whose copying, manipulation, editing, or other use constitutes Fair Use by the owner of legally acquired media."

In addition, in section 12 outlining Table A guidelines, we request the following addition:

"No technology implemented under the guidelines shall be accepted and placed in Table A of approved technologies if its implementation or use impedes in the transmission of, or infringes upon the Fair Use rights of, the lawful owners of digital content."

Thank you very much.

Joe Kraus
Co-Founder, DigitalConsumer.org

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.

Below are the EFF (and co-signers') comments on the MPAA/5C proposed revisions to Compliance/Robustness Requirements, 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 Requirements Revision proposal

>"Authorized Digital Output Protection Technology" means a
>technology listed on Table A, as such list may be amended from
>time to time pursuant to Section [] [anticipates section (to be
>discussed by the parallel group in accordance with the "Notes" to
>the "Proposal to BPDG for Table A Criteria") that would specify
>how technologies would be added to and removed from the list of
>Authorized Digital Output Protection Technologies].

>"Authorized Recording Method" means a recording method listed on
>Table A, as such list may be amended from time to time pursuant
>to Section [] [anticipates section (to be discussed by the
>parallel group in accordance with the "Notes" to the "Proposal to
>BPDG for Table A Criteria") that would specify how recording
>methods would be added to and removed from the list of Authorized
>Recording Methods].

As per EFF/VOSN/DSP/FSF's remarks to the MPAA/5C joint-proposal on Table A, it would be unduly onerous, anticompetitive and inappropriate for the removal of Table A technologies to include any ban or marketplace withdrawal of consumables and/or replacement parts of formerly included technologies; likewise, the removal of a technology from Table A should not entail the remote deactivation of lawfully acquired devices already in the field.

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.

Below are the EFF (and co-signers') comments on the Philips 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 Philips Table A proposal

>1. Require a User to (x) acquire or build a physical device of
>sufficient complexity to be beyond the ordinary capability of a
>User to construct, in order either to defeat such technology or
>to avoid the application of such technology or (y) acquire the
>keys to an encryption system (which shall be at minimum 56 bits
>in length);

EFF/VOSN/DSP/FSF would like to strike everything in this clause between "build a physical device" and "or (y)," i.e., strike the requirement that the device be beyond the ordinary capability of a user to construct.

EFF/VOSN/DSP/FSF would like this group to safeguard the right of end-users to tinker with, modify, understand and repurpose the technology that they have lawfully acquired.

>2. Preserve the Broadcast Flag with the content or keep other
>information identifying the content as either Marked Content or
>Unscreened Content with the content during digital output and
>transmission over a digital interface, provided that if content
>is identified as Unscreened Content by such other information, it
>shall be treated as Marked Content if the Broadcast Flag is not
>preserved; and

EFF/VOSN/DSP/FSF would like to object to a legal requirement regarding the means by which devices interoperate and communicate with one another, striking this clause in its entirety.

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 BPDG is ready to draw its "consensus" to a close, no matter how little actual consensus prevails within its ranks. The co-chairs have just circulated their consensus-at-any-cost schedule:

Monday, May 6:

Deadline for any further questions/comments on proposals from 5C/CIG/MPAA (Table A criteria and compliance/robustness requirements) and Philips (Table A criteria).

Tuesday, May 7:

Deadline for proposals to include protection technologies on Table A (see summary above)

Thursday, May 9:

Deadline for any necessary parties (i.e., not you, not us -- we're not part of the "consensus") to confirm/reaffirm proposed technologies meeting indicated criteria.

Wednesday, May 15:

Deadline for comments on May 10 circulations.

Friday, May 17:

Circulation of final report

No more BPDG meetings, then -- the BPDG will present its final report to the Copy Protection Technical Working Group shortly after the 17th, and then it's off to the lawmakers, to gleefully legislate away our fair use rights and open source.

We're not giving up, though! The EFF will file comments on each stage of this, will follow this process to Congress and the FCC. We will be at the CPTWG meetings and in the press, helping our lawmakers to make the right decision.

Any interested party can file comments, you know, just by joining the BPDG mailing list.

"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.