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.

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.

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.

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.

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."

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.

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...

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

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.

Indeed, many of BPDG's representatives did testify that they would have reached an agreement on their restrictive, legally mandated Digital TV standard by May 17. But those of us on the BPDG's mailing-list saw a different story.

On April 24th, Philips released a stirring proposal for the inclusion of new technologies on Table A, the master list of approved outputs and recording methods. The Philips proposal goes farther than any of its previous assays, moving away from Hollywood's stated plan to only approve those technologies that they license ("We don't know what we'll approve, but we'll know it when we see it."

The (current) April 14 discussion draft of the BPDG's Compliance and Robustness Rules is now available.

We've published it in PDF format; the original is a Microsoft Word document. Section X.2, which identifies which devices are "Covered Products" and required to comply with the BPDG's rules, is still undefined. We've even heard the peculiar claim that the BPDG rules are still a "voluntary standard" because the mandate language hasn't been written yet!

Explaining the origin of the problem:

Thus, unlike prerecorded encrypted digital media such as DVD, or premium digital cable and satellite video transmissions delivered via conditional access, there is no technical or legal authorization necessary to receive the signals and no licensing ``hook'' (i.e., no technology license is needed to decrypt content) present to impose conditions for the secure handling of such content. Consequently, this unprotected DTV content can be redistributed (e.g., over the Internet) without authorization from the copyright holders.

The draft also notes that the ATSC standards organization has included the "RC descriptor" (which is the broadcast flag) in the ATSC standard "as of April 2, 2002".

The draft identifies four remaining areas where consensus is missing. These are:

• Table A
• Whether and how compliant devices may output video other than by using methods on Table A
• The Philips proposal on consumer DVD recording of TV broadcasts
• The controversy about whether and how ATSC modulators will be regulated

Of course, EFF has raised objections other than these. Typically, our concerns have either been ignored or categorized as "policy issues" which will only arise when the attempt is made to turn the BPDG rules into actual legislation.

A Covered Product shall not record or cause the recording of Marked Content in digital form unless such recording is made using one of the following methods: [a method that uses an encryption protocol, or other means at least as effective, to uniquely associate such recording with a single Covered Product so that such recording cannot be accessed in usable form by another product except where such recording (or a copy thereof) is passed to another product as permitted under this Section [a method that uses an Authorized Recording Method for Removable Media technology, or other means at least as effective, to uniquely associate such recording with a single Covered Product so that such recording cannot be played on another product and that no further usable copies may be made thereof except by such Covered Product] or an Authorized Recording Method, in accordance with any obligations set out in Table A applicable to such Authorized Recording Method [(provided that for recordings made on removable media, only Authorized Recording Methods expressly identified on Table A...

We've added the March 14 discussion draft of BPDG Compliance and Robustness Rules. Don't let the dry prose throw you off, this is gripping stuff -- and it may be your future:

Covered Products shall be manufactured in a manner that is clearly designed to effectively frustrate attempts to discover or reveal any secret keys or secret algorithms used to meet the requirements set forth...

Robustness: Data Paths. Within a Covered Product, neither Unscreened Content nor Marked Content shall be present on any User Accessible Bus in unencrypted, compressed form.

[Note to reader: The instrument promulgating these requirements could also address the issues raised in Section 2.2 of the Robustness Rules for DTCP (alerting manufacturers that the robustness requirements may be modified in the future to require the protection of uncompressed data on a User Accessible Bus, when it is technically feasible and commercially reasonable to do so.)]