[Rants]
Gillmor on consumer rights

Dan Gillmor of the San Jose Mercury News writes in favor of consumers' rights.

In the world of electronic devices, digital entertainment and software, customers are routinely subjected to restrictions that forbid modification of products they've already purchased.

[Rants]
Policy Group remains silent

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.

[Rants]
Tech Mandates or No DTV? Calling the Cartel's Bluff

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?

[Rants]
"Like jelly"

[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!)

[Rants]
A long time ago, in an industry far, far away

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.

[Rants]
Were approved technologies determined in advance?

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.)

[Rants]
Apologies to Dr. Seuss (humor)

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!

MORE...

[Rants]
Piracy: The Big Lie

Why is a content protection system necessary for digital over-the-air television?

Hollywood representatives have, from the beginning, given one answer: a protection system is needed to prevent "Internet piracy," or even "Napster-ization."

There's one problem with this rationale: it's not true.

Don't be fooled. The BPDG standard is not about stopping "piracy." It's about Hollywood regaining some measure of control over what you can and can't do with television. It's about cramming the VCR genie back in the bottle, and giving Hollywood the power to bring new technologies to heel before they can deliver new capabilities to consumers.

The proposed BPDG standard will have no meaningful impact on unauthorized copying or distribution of televised content. Here's why.

Right now, there's a plentitude of unauthorized video content sloshing around the Internet. Virtually all of it has been digitized from DVDs and analog television broadcasts. What's more, almost all of it has been compressed in order to cram it into the relatively skimpy "broadband" connections used by most DSL and cable modem subscribers (if you're using a 56k modem, video is probably beyond your patience). This means that the quality has already been compromised.

Now consider DTV broadcasts. Compared to analog broadcasts, receiving a DTV signal is like drinking from a firehose of data (2.2 Gb/sec 19.4Mb/sec (thanks Wes!)). Consumers (at least outside of the high-speed university setting) don't have the bandwidth to swap uncompressed DV files, and they won't be getting it any time soon. Of course, enterprising members of the public could compress DTV signals in order shrink them for Internet distribution. If they did so, however, the resulting files would be no better than those currently culled from DVD and analog broadcasts.

So locking down DTV devices with BPDG's content protections will do nothing to stem unauthorized Internet distribution, at least not so long as there are DVDs and unprotected analog television broadcasts anywhere in the world. But it will finally give Hollywood some control over the development of new technologies, a power that copyright law alone has never afforded them.

But claiming it's about piracy is an easier sell than admitting it's about installing a panel of movies studio executives to reign over our nation's technology innovators.

[Rants]
Stunting Our Video Future

So what do we all stand to lose in the digital video future as dictated by BPDG?

Well, here’s one thing on the chopping block: affordable 100-inch high-def video screens in your living room within a year or two. (OK, OK, I mean “affordable” as compared to today’s “big screens”.) This stuff is on the horizon, and will be arriving at stores near you quite soon.

That is, unless BPDG has its way and imposes a whole lot of pointless engineering hurdles in the path of the enterprising video innovators who want to bring it to you.

For a glimpse of the future (ignore the sticker shock for a moment; prices do nothing but fall in the electronics world), check out the video projector built by the American high-end electronics company, Madrigal. MORE...

[Rants]
Fox reps enjoy fair use
A moment of delicious irony from yesterday's BPDG meeting. The Fox reps sitting next to me spent the morning pillorying the suggestion that a standard should reflect technical criteria, not the whim of the studios ("It's our content, we should decide what criteria we use when evaluating new technologies that we may entrust it to!").

When they came back after supper, they were passing around a photocopied printout of the Doonesbury series on Napster, in which Mike Doonesbury and his daughter Alex argue both sides of the file-sharing debate.

They got quite a chuckle out of it, but seemed not to appreciate the irony -- copy-prevention flags at the browser, printer or copier would have given cartoonist Garry Trudeau the ability to restrict the very use they were making of his strips.

[Rants]
Choice MPAA member quotes
Some gems from yesterday's BPDG meeting:

"We'll know it when we see it"
(Studio reps, discussing the criteria for adding technologies to the whitelist of permitted digital TV outputs and recording devices)

"Writing abstract compliance rules dampens innovation"
(On why the studios don't want to draft actual technical specifications for permitted technologies. Alternate explanation: Detailed compliance rules would reveal the ridiculousness of the MPAA's technophobic pipe-dream of a world where all customers are treated like criminals)

"Lockpicks and credit-card-swipe capturers are cool but not socially viable. We want a well-mannered marketplace."
(A revealing look into the MPAA's fundamental misunderstandings of: a) capitalism, and b) lock-picking)

[Rants]
"We'll know it when we see it"
The studios say that laying out technical criteria for inclusion on Table A will stifle innovation. They say it with a straight face. What on earth could they mean?

Well, it's a puzzler. The engineer in the Fox entourage at yesterday's BPDG meeting elaborated a little:

It's our content. The criteria for a technology that we entrust it to are a complex matrix, involving pricing, security and ease-of-use. By the time we laid out the requirements for such a technology, we'd have a stack of paper an inch thick. How can we dream up all the criteria for as-yet uninvented technologies? Who could have predicted DES [an encryption alogrithm]? That was a singularity -- how could we lay out terms for inclusion that takes into account things that haven't been thought of yet?

Good question. Just the sort of question that makes the whole BPDG shennanigan so suspect -- how can this semi-secret gang of studio and technology people presume to lay out all the specifications for digital television technologies that have yet to come?

It's pretty revolting to watch the organization that tried to ban the VCR talk about its commitment to innovation. Clearly, it upset Philips, whose reps kept pressing on the issue:

How can a company build a product if it won't know until it's done whether or not it's legal?

The MPAA's response:

We can't tell you what we're looking for, but we'll know it when we see it.

Maybe that's how you run a film-studio, but it sure ain't how you make a law.

[Rants]
What is the BPDG?
In the year 2006 all over-the-air television will be digital. This is pretty hot stuff: crystal-clear pictures, ear-popping audio and interactive features for days. But as the technologists give, the studios take away.

The Broadcast Protection Discussion Group is an obscure group of Hollywood studios and technology companies that are negotiating a "consensus" for any gadget or code that can touch the studios' product. Once they're done, they want to go to Washington and ask Congress and/or the FCC to give their "standard" the force of law.

So what? Well, this is a radical departure from the way it's usually done. Usually, bright nerds invent something cool and the entertainment industry has a nervous breakdown and runs around telling everyone that the sky is falling (Marconi got sued over the radio, Sony got sued over the VCR, and it took a near miracle to get movies out of the studios' vaults and onto television). People pick up on the tech and all the interesting ways that it can be used as a creative tool, and gradually the entertainment industry realizes that a new day has dawned and gets its act together, starts shipping product for the new media, and takes home yet another squillion dollars.

This time around, the entertainment industry wants to take away all that sloppy, inefficient fooling around where technology companies try out lots of different approaches, where garage inventors go from obscurity to posterity under a hail of customers, where you and I get to invent amazing new uses for our stuff that a bunch of engineers in a board-room never would've thought of in a million years. This time around, everything not forbidden is mandatory. MORE...