A recent report from the Pew Internet and American Life Project says U.S. broadband deployment is proceeding at a reasonable pace, and broadband users are finding a wide variety of uses for their Internet connections:

[H]ome broadband adoption rates [are] on par with the adoption of other popular technologies, such as the personal computer and the compact disc player, and faster than color TV and the VCR.

Some have raised the concern that a lack of compelling online content, particularly in the entertainment arena, has dampened consumer uptake of broadband. Our research suggests that most early broadband adopters find plenty to do with their fast connections, especially when it comes to creating online content and performing information searches.

[...]

Broadband connections are changing people's lifestyles. The Internet is the "go to" tool for a variety of functions -- paying a bill, updating photos on the family Web page, listening to music, sharing files with co-workers, or getting news. For these users, the Internet replaces multiple tools, such as the telephone, TV, stereo, newspaper, fax machine, or pen, to carry out tasks.

[...]

Several broadband users, responding to the Pew Internet online query, complained that downloading movies is extremely time-consuming even with a broadband connection, with one calling it "a sheer waste of time."

A strange silence has descended over the Policy Group's mailing list (hosted at LMI), after members of the press were removed on the basis of a purported policy against journalists. It turned out that the policy in question was a CPTWG policy -- not a Policy Group policy -- but no explanation has been forthcoming and the members of the press have yet to be invited back.

Art Allison of the NAB, a long-time opponent of journalists' participation in CPTWG and Policy Group discussions who repeatedly threatened to boycott meetings if journalists were admitted, prompted the most recent expulsion of a journalist (on June 12). Allison asked whether there had been a "policy change" permitting journalists. Another participant wondered in reply whether, in fact, the Policy Group had ever actually created a rule forbidding journalists. (EFF asked the same question -- twice.)

Remarkably, there has been no reply to this question -- nor discussion of any other topic on the policyg mailing list for at least two weeks.

Katherine R. Lewis of Bloomberg (who was earlier expelled from the BPDG's mailing lists and conference call) has published an article (this link may not be permanent) about the recent round-table meeting convened by Rep. Tauzin.

``We have a sound game plan in place designed to produce an agreement on many of the contentious issues,'' Johnson said. ``We asked them for ideas. We'll write the legislation.''

[...]

Philips is ``pretty much isolated in their position,'' News Corp. lobbyist Rick Lane said. ``The consumer benefits will be tremendous. Consumers will be able to receive high-value, quality content from broadcast television.''

The article doesn't play up opposition to technology mandates in general -- perhaps because mandate opponents have been oddly quiet recently, with many taking a wait-and-see approach. Unfortunately, it's easy to interpret reticence as nonexistence.

Why are technology companies backing government-mandated content protection for digital television? In other words, why are so many going along with BPDG, when each and every one would prefer a world without government technology mandates?

Because they are being held up by the Hollywood cartel.

Major motion picture studios have made it clear that they will not license their movies for DTV broadcast until their tech mandate demands have been met.

Call their bluff, I say.

Hollywood has a miserable record as a cartel. They have tried this before. In the late 1950s, at the dawn of color television, the Hollywood cartel refused to license movies for color TV broadcast. Who broke ranks first? None other than Walt Disney himself, when he licensed "The Wonderful World of Color" to NBC for color broadcast. The cartel fell apart.

Same story with video cassettes. In 1976, the major motion picture studios, several of whom were trying to sue the VCR out of existence, refused to sell pre-recorded video cassettes of their films. Once again, one of their members broke ranks (20th Century Fox, this time; in the words of Fox exec Steven Roberts, "I took the position that I never wanted to see our company let a new technology come along and bury its head in the sand") and the cartel collapsed.

Already, there are signs that the cartel will not be able to hold the line on DTV. NBC, for one, is not going to wait around for BPDG mandates before getting in on DTV. NBC recently announced plans to broadcast its prime time line up in high-definition DTV. A new generation of producers like HDNet have also committed to DTV, without waiting for technology mandates.

It will be a hard thing to maintain a cartel in the face of new DTV opportunities. I don't think the Hollywood studios have the moxie, any more than they did in the face of color TV or the VCR.

Rather than hobbling DTV innovation with technology mandates, perhaps we should call their bluff and let the market forces take over?

Now that Rep. Billy Tauzin has heard from the BPDG and seen firsthand the nonexistant "consensus" that emerged from the six months of BPDG discussions, it's time for round two.

Philips CEO Lawrence J. Blanford (who earlier made some very brave remarks to Congress lambasting the BPDG) has issued a new statement, in which he calls for an open "Public Policy Forum" in Congress to determine how best to encourage the American public to switch to digital television.

In the new statement, Blanford ennumerates Philips's problems with the BPDG process to date, echoing many of the concerns EFF raised in its own report.

Rep. Tauzin has hand-picked a small number of parties to produce documents between now and July 15th to establish a new set of recommendations. It's not clear how groups like EFF and the Free Software Foundation (whose GNU Radio technology would be illegal under the terms of the current mandate) are to participate in this new process, beyond submitting an alternative proposal for adding new technologies to Table A (the list of approved technologies).

The problem is that framing new objections to BPDG in the context of the approval of new technologies exempts the possibility of not having to approve technologies at all. Under the Betamax doctrine, the test for legality of new technologies is whether they have "substantial non-infringing uses," not whether Hollywood deems them appropriate for use in the marketplace.

More disturbing is that Rep. Tauzin's proposal makes no room for objections to the "robustness requirements" that would outlaw free and open source software from use in digital TV contexts because they are not "tamper-resistant." Given the clear legal precedent that establishes software code as speech, this is clearly unconstitutional, violating the First Amendment.

We'll be looking into this most carefully and reporting in this space as we learn more.

The parent group of the BPDG, the Copy Protection Technical Working Group (CPTWG), will hold its next meeting in Los Angeles on July 19, 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!

[A]n engineer, one Richard J. Stumpf, [...] had conceived a system that could render a Betamax incapable of recording a program unless the broadcaster -- presumably on the copyright holder's say-so -- chose to let it be recorded. The system relied on a simple jamming device at a cost, Stumpf was prepared to testify, of less than fifteen dollars a machine. Expert or no expert, Stumpf could not persuade [Universal v. Sony trial] Judge Ferguson that such a thing was workable -- or relevant. If he were to order Sony to install a jamming device, "as sure as you or I are sitting in this courtroom today," Ferguson said, "some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly."

(James Lardner, Fast Forward: Hollywood, the Japanese, and the VCR Wars)

(The broadcast flag proposal of the 1980s!)

EFF has received a copy of a memo distributed by House Commerce Committee staff counsel on behalf of Rep. Tauzin, providing "assignments" and deadlines for participants in yesterday's roundtable meeting.

The memo is included below.

A Reuters article reports that Rep. Tauzin set a July 15 deadline for some parties (BPDG participants?) to reach agreement.

Johnson said last week that Congress would mandate a solution if the parties could not agree on their own, but on Tuesday he declined to say whether Tauzin would introduce a bill if private industry could not agree by then.

EFF's letter to Tauzin is mentioned in the last paragraph of the Reuters article.

A Bloomberg piece (is it on the web anywhere?) reports MPAA emphasizing that there were "only 14 dissenters out of about 70 organizations". Jack Valenti has said repeatedly that there was "substantial agreement" on the broadcast flag -- including broad support for government action to ban products which don't conform to the Compliance and Robustness Rules.

By contrast, dissenters (like EFF) have painted a very different picture. Some reporters have been left scratching their heads, wondering whether there is or isn't a consensus. An article from Variety is a good example of the contrasting perspectives:

"I didn't say there was unanimity, but this shows you can get all these groups together in good-faith discussions," Valenti said. "I think it's fair to say that there is broad, multi-industry consensus on the core aspects of a technology called a broadcast flag."

Critics are harsher in their assessments, however. "There is no consensus on any significant point," Philips senior researcher Michael Epstein said.

Several CPTWG participants indicated at CPTWG's June 5 meeting that the "parallel group" or "policy group" is "not a sub-group of CPTWG" or "not part of CPTWG". In a May 8 message, however, BPDG co-chair Bob Perry directed that two journalists (Bloomberg's Katherine R. Lewis and National Journal's Drew Clark) be removed from both the BPDG mailing list and the "policy group" mailing list because of a CPTWG policy against participation by members of the press.

LMI, which operates both mailing lists, complied with that request, so that journalists have continued to be excluded from discussions of both groups.

We've sought clarification on why CPTWG policies would apply to the "policy group" if the "policy group" is no part of CPTWG.

We heard today that Rep. Tauzin had insisted that industry participants in BPDG reach an agreement on the "broadcast flag" by Monday, July 15. More information will be posted as it becomes available.

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.

Philips made further criticisms of BPDG in a press release issued today. The criticisms focus on the BPDG process and include charges of self-interest on the part of BPDG participants.

These criticisms seem particularly significant to us -- many of the rules were written by organizations with a direct financial interest in technologies under consideration. Therefore, as we're suggested before, their conclusions should be viewed with particular skepticism.

Philips repeated its call for a government-chartered forum with a proper process and a more broadly representative membership. Hollywood studios are likely to resist that proposal, because it might reveal the true diversity of opinion which exists among those with an interest in digital TV. In addition, end-users of digital TV might actually be represented somehow!

We're still waiting to hear about the work of the "parallel group" -- a mysterious entity which is supposedly "not part of CPTWG" and "not a sub-group of CPTWG" but which is meant to address "policy issues" and "enforcement issues" related to the broadcast flag proposal.

We understand that some members of BPDG were invited by Rep. Billy Tauzin to talk about digital TV issues; EFF was not invited to that meeting, but we hope to have substantive information about it available soon.

In the meantime, those who follow digital copyright and television broadcast might be interested in a new EFF court case, Newmark v. Turner, in which five users of the ReplayTV personal video recorder are seeking declaratory judgment that their use of that product (including commercial-skipping) is legal. The Newmark case doesn't have a direct connection with the broadcast flag, but readers may find a number of common themes.

Amy Harmon's article on BPDG (New York Times, free registration required) suggests that the results were quite unfavorable to the studios:

Hollywood studios seeking to impose electronic controls on digital television broadcasts suffered a setback yesterday as a coalition of technology and consumer electronics companies supporting their efforts crumbled in a cross-industry power struggle.

A long-awaited report that the studios hoped would provide the consensus necessary for anti-piracy legislation -- and that members of Congress hoped would jump-start the stalled rollout of digital television -- instead disclosed a host of dissenting opinions.

[...]

"May I say quickly that there is no consensus embodied in that report," said Tom Patton, vice president for government relations at Royal Philips Electronics. "None."

The BPDG final report is now available from the EFF web site. (This version should not be considered "official", because we have reformatted it and converted document formats. However, the contents are identical to the final report as filed by co-chair Michael Ripley.)

EFF comments appear in Tab N. Philips comments appear in Tab P.

If changes are subsequently made to the report, we will post them as well.

Jack Valenti claims that BPDG found an inter-industry consensus on the Broadcast Flag. (It didn't look that way to us.)

Some recent press coverage of BPDG refers to the BPDG proposal as recommending a "watermark" in digital TV broadcasts. This is a misperception of the nature of the broadcast flag. (There is a distinct proposal called the "broadcast watermark" which was not discussed extensively within BPDG and is not part of the BPDG's published recommendations.)

A watermark is commingled directly with the signal it marks, and thereby alters the signal (ideally, in an imperceptible way). By contrast, the broadcast flag exists side-by-side with video content it marks.

If you're looking for terms to describe the broadcast flag, rather than "watermark", you might try "bit", "indicator", "flag", "descriptor", "tag", "header field", or "notice". But using "watermark" is sure to sow confusion, especially because watermark proposals distinct from BPDG do exist. Watermarking is likely to be a big issue soon in a public forum near you -- but not as a part of BPDG's proposal.

This CCIA release is sharply critical of the BPDG recommendations.

They'd even have a place for people who dared to use products that didn't follow their rules, or tried to go around the anti-copying technology: It's called prison.

It's a good time to remind our readers of tomorrow's CPTWG meeting in Los Angeles, where the new BPDG report is sure to be a subject of discussion.

EFF expects to attend.

BPDG's final report was released this evening. There are a large number of "tabs", or appendices, and some are still in the process of being released.

EFF has published a brief summary of our objections to the BPDG report. You can download it in PDF format or read the text, included in the body of this article.

Will Rodger, Public Policy Director at the Computer and Communications Industry Association, filed CCIA's BPDG comments last week:

The Computer & Communications Industry Association has been monitoring the BPDG process for several months. During that time we have been keenly aware of the difficulties of creating a digital rights management system that could protect high-definition content while at the same time protecting fair use for consumers and future innovators alike.

The co-chairs report purports to do so, but falls far short, in part because of the open-ended veto power it has given content owners over technologies that could be used to infringe their copyrights. Philips Electronics, among others, has already outlined the conflict that has resulted from this arrangement.

Such difficulties are a real concern: intellectual property, after all, is a cornerstone of our industry and something without which we and our members would have no business at all.

But intellectual property in the United States is and always has been a balance between owner and consumer of that property. Part of that balance includes building technology and business models that account for the interests of other industries and consumers themselves. History tells us that juke box owners, piano-roll makers, broadcast music and cable TV didn't just bring new media to consumers, but changed the way established media did business, often with the help of the legal system.

We see no such evolution in the BPDG. Instead of a process that embraces new technology, we see one that attempts to keep it at bay.

Worse, we fear the BPDG approach to intellectual property will ultimately bring all of IP into ill repute. Maximalist approaches that treat consumers not as partners but as parties from which to extract only profits will breed contempt for law as surely as Prohibition ever did, and thereby encourage the piracy this effort is suppoed to prevent.

The BPDG approach has been marred by repeated and credible claims of back-room dealing by a small number of parties who have excluded most participants from real decision making. Such closed-door talks raise not only issues of fairness and copyright, but competition law as well.

Over the years, CCIA has participated in numerous standards-setting bodies. Each has included numerous affected participants, all of whom worked towards making systems more interoperable, not less. We call on all BPDG participants to include more companies, more consumer advocates, and to write strict sunshine rules so that all parties are included in all negotiations.

We also call on participants to look to the market first -- and the government last -- to protect the legitimate interests of all stakeholders.

A Washington Post article by Mike Musgrove says the BPDG's final report has been a subject of great controversy.

"Everybody except chicken farmers and professional wrestlers submitted comments," said [co-chair Robert] Perry.

Although there was a tremendous amount of last-minute activity, we hope the skeptical comments of organizations such as EFF, FSF, CCIA, Philips, Thomson, Zenith, and Sharp did not come as a sudden surprise. We at EFF, for instance, have been saying for quite some time that technology mandates threaten fair use, innovation, free software, and the right to tinker.