EFFector, Vol. 15, No. 13, May 10, 2002

EFFector Vol. 15, No. 13, May 10th, 2002 editors@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 213th Issue of EFFector:

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EFF Drafts BPDG Report

Asks co-chairs to adopt as final findings on digital television

The Broadcast Protection Discussion Group (BPDG) is a self-appointed group of technologists and entertainment companies that is setting out the standard for all new digital television technology, including consumer PC components. Theoretically, they're going to come to a consensus on what any device that can interact with a digital television signal must and must not do, and then Congress will give the FCC the power to force all technologists to comply with their "standard." The "consensus" is drawing to a close, and the three co-chairs of the BPDG have announced that they will prepare their final report by May 17, regardless of how much disagreement persists in the group.

They're purporting to represent a consensus of everyone who matters in the future of digital television tech -- computer users, entertainers, device manufacturers, and so on -- but they've refused to incorporate any of the substantial dissent into their report or their standard. Instead, the co-chairs have offered a sop to those of us who disagree with the idea that film studios should be granted a veto over all future digital television technology and that open source digital television technology should be illegal, telling us that we can attach "minority dissents" to the end of their "consensus."

If you haven't heard about this, you're not alone. The BPDG has locked the press out of its meetings and kicked journalists off its "public" mailing lists, it has not Web site and no press-contact. It is a *private* public group -- or at least it was, until EFF tipped over the rock it was hiding under and let the world see what had been festering there, exposing the BPDG's proposed standard on our BPDG Weblog, "Consensus at Lawyerpoint." A cursory glance reveals this process for what it is: A conspiratorial cartel that will usher in a regime indistinguishable from the reviled Hollings Bill, in the guise of an "inter-industry consensus."

The co-chairs are hell-bent for consensus at any cost, and so we decided to give them a little assist: EFF has drafted the co-chairs' report for them, and asked them to adopt it, including such minor revisions as they feel they need to. The studios and anyone else on the minority side of this debate can, of course, write up little documents and attach them as afterthoughts to this document, but the co-chairs can go right ahead and submit this document, which reflects the broad consensus of nearly everyone who cares about the future of digital television technology.

EFF has 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.

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:

It is the finding of the co-chairs and the substantive consensus of the BPDG that digital television is beneficial and desirable, for reasons listed below:

Digital television will provide an open platform upon which many new and creative uses will be built. The protean flexibility of a digital stream affords the digital television audience many opportunities to innovate; repurposing, remixing, archiving, sharing and tinkering with the over-the-air television signals that travel on the airwaves that the public has made available to broadcasters so that broadcasters may make pleasing and socially beneficial use of them.

End-users of digital television will acquire and produce tools that will allow them to actively participate in the production of new and worthwhile forms of expression, sharing the fruits of their imagination over a multiplicity of media, from modulated ATSC streams flowing over the wire, over the air and over satellites, to various digital video formats over the public Internet, to shared and widely duplicated removable media.

Digital television will carry forward the traditional role of television in our free society of acting as a tool of accountability. The public will record, archive and share digital campaign promises from our elected officials, newscasts covering controversial events, and the spectrum of other noteworthy cultural and political events that define us as a nation. The very malleability of natively digital television makes it ideally suited to the preservation for posterity of our collective memory.

As technologists turn their formidable imaginations to the opportunities inherent in treating video as a bytestream to be diced, spliced, mixed, tweaked, copied and customized like any other, they will certainly produce entire new categories of devices, software and transports.

These devices, shaped by the forces of the market -- in the case of commercial ventures -- and by the idiosyncratic agendas of technologists -- in the case of free/open projects -- will build upon one another, extending the range of devices vertically and horizontally. New technologies will interoperate, extending one-another's capabilities, just as the television gave rise to the VCR which gave rise to the camcorder, which gave rise to Apple's iMovie video editing package.

The economic potential of digital television is vast. These new technologies, built for the purpose of tuning, demodulating, remodulating, storing, distributing and manipulating ATSC streams, will return substantial revenues to the commercial technologists who build and sell them, and to those who make accessories, from consumables such as removable media to accessories such as hubs and other after-market add-ons.

Flexible, high-resolution, high-quality, interoperable, low-cost, wide-spread digital television technology will provide artists (filmmakers, animators, actors, writers, visual artists, musicians and interactive artists) with a highly expressive canvas upon which they may realize their imaginings.

As our cherished creators produce works for the digital screen that intrigue our minds and stir our emotions, they will uncover new means of promoting their artistic visions and realizing compensation for their works. The freer the rein we give to our artists and the more media we provide them to express themselves in, the more means they will discover for securing financial and artistic reward.

As with every other substantial technological innovation in media history -- piano rolls, radio, motion pictures, television, computers, VCRs, DVDs -- digital television will extend the reach and hence the profitability of the entertainment industry.

The entertainment industry relishes the opportunity to take maximum advantage of digital television's high-quality video and audio reproduction as a means of providing more compelling experiences to its audience.

The entertainment industry looks forward to new opportunities to collaborate with its audience, and to discovering new business models and opportunities made possible by an innovative marketplace delivering ever-increasing capabilities to consumers.

The precision with which digital television signals can be broadcast will free up spectrum that today lies fallow as a consequence of the inefficiencies of analog broadcasting technology. This spectrum can be reclaimed and reused for new and innovate applications that have been shut out by spectrum scarcity.

It is the finding of the co-chairs and the substantive consensus of the BPDG that digital television is far from inevitable, for reasons listed below:

The attractiveness of digital television will grow as an exponential function of the number of digital television devices in the market. More devices will create an incentive for more programming; they will lower the cost of devices, they will attract more tinkerers and inventors to extend their capabilities.

Digital television will only come into existence if a certain critical mass of end-users can be persuaded to purchase and use digital television devices.

It is fruitless for any group to set a "standard" that mandates which features must and must not be included in digital television devices. It is not the place of the government nor of a private cartel to require that the market utilize this technology and eschew that one.

That is the place of the market itself, which will engage in an unmannered, chaotic process of unfettered development and deployment that will produce a rich variety of technologies that the general public will efficiently winnow down to a few marketplace winners by voting with their wallets.

Mandates are only necessary to require those features that the public does *not* wish to see in its devices. Features that are desirable to the public will be included by vendors, or those vendors will be supplanted by competitors who deliver these features. The inclusion of undesirable features in digital television technologies will slow uptake of digital television in the market.

Thus we have concluded that if features are required or forbidden in digital television devices, that it will have the effect of reducing the quality of those devices, and so weaken the chance that digital television will achieve critical mass in the marketplace.

c) Programming will come to digital television only if there are people watching it

It is pointless to fret about which programming is available on digital television before there is a substantial audience for digital television. It is likewise pointless to fret about whether programming will be available once the public adopts digital television.

The powerful lesson of the Internet is that a new medium abhors a vacuum. On the Internet, new players sprang into existence to provide compelling information and entertainment that increased the value of the network. The tremendous pressure and heat generated by tens (then hundreds) of millions of users of the network transformed talented amateurs into household names and coalesced new entertainment giants out of the ether.

Already, a new generation of entrepreneurs is creating and distributing digital television programming, rather than waiting for the government to shape the market to their liking, they are embracing the opoprtnunintes an open digital television marketplace affords.

No list of all circumstances under which redistribution is lawful can ever be produced, Consequently, no redistribution control technology can ever be designed to prohibit nothing but unlawful redistribution.

Fortunately, copyright law, as written by Congress and refined by our courts, provides substantial and sufficient remedies for those whose works are unlawfully redistributed.

In considering what should be done to protect valid copyright interests, we must also be sensitive to protecting the legitimate rights of the public, including fair use, free expression, and the freedom to understand and explore the technologies that they lawfully acquire.

Some approaches to redistribution control such as the pursuit and arrest of those who flagrantly violate copyright laws are well-tailored to attaching the problem without causing collateral damage to public freedoms.

It is the finding of the co-chairs and the substantive consensus of the BPDG that digital television must be Assisted by Congress and by the BPDG stakeholders, by means listed below:

While broadcasters, as privileged consumers of the public's airwaves, may be regulated by the public and its government, no such regulation is necessary or desirable for technologists.

In order for digital television to be broadly adopted, technologists must be free to build any digital television device that they believe will be accepted in the market. There is no substitute for the absolute freedom of each player to choose which standards he or she will adopt or eschew in a new device.

Congress must safeguard the right of technologists to freely innovate by ensuring that no body creates mandatory standards for digital television technology.

While some technologists may seek to secure a short-term marketplace advantage through the deployment of proprietary technologies, it is only through reverse-engineering of marketplace successes that interoperability and competition can be assured. Without interoperability and competition, the value of each device is reduced.

It is crucial that Congress promote the right of technologists and end-users to tinker with and innovate upon those devices in the market.

The public will not adopt digital television technology if there is a widespread perception that the technical capabilities of these devices have been curtailed by means of a mandate or a back-room conspiracy among various players to eschew certain useful features.

Congress must take action to quash anticompetitive conspiracies, no matter that they operate in the guise of an inter-industry consensus body. This will assure the public that no self-interested cartel will be able to constrain the capabilities of digital television technologies.

We hope that our discussions have been illuminating to the general public, to the FCC, to the Congress of the United States, and to other interested parties.

Electronic Frontier Foundation Media Release

Judge Rejects Challenge to eBook Case

Rules Digital Copyright Law Trumps Free Speech

For Immediate Release: Wednesday, May 8, 2002

San Jose, CA - A federal judge today denied a Russian software vendor's request to dismiss criminal charges against the company for violations of the Digital Millennium Copyright Act (DMCA).

Judge Ronald Whyte of the Federal District Court for the Northern District of California ruled that Elcomsoft, a company that markets eBook formatter software, must face criminal charges. Rejecting two legal challenges, the judge ruled that the DMCA's ban on copyright circumvention tools is constitutional even if the circumvention tools are used for legal purposes.

"It's as if the judge ruled that Congress can ban the sale of printing presses, because the First Amendment right to publish speech was not attacked directly and quills and ink are still available," noted Electronic Frontier Foundation (EFF) Legal Director Cindy Cohn. "What good are the public's rights if the tools needed to make fair use or access works in the public domain are illegal?"

Despite acknowledging a lack of clarity in the Congressional record surrounding the adoption of the DMCA, Judge Whyte ruled that due process was not violated. He said the plain meaning of the DMCA statute was to ban circumvention tools completely because Congress had assumed that "most uses" of the tools would be for unlawful infringement rather than fair or noninfringing uses.

On Elcomsoft's First Amendment argument, Judge Whyte ruled that the computer program qualifies as speech, rejecting the government's argument that software is not speech. The court then ruled that the First Amendment was satisfied because the government's purpose was to control the "function" of the software rather than its "content," and that the statute did not ban more speech than necessary to meet its goal of preventing piracy and promoting electronic commerce.

"Although disappointed by Judge Whyte's unwillingness to dismiss the charges against Elcomsoft on constitutional grounds, we are pleased that he agreed that software is protected speech under the First Amendment," said EFF Intellectual Property Attorney Robin Gross. "Courts must now take the next step and give people the same rights to express themselves with software as they enjoy for traditional speech."

The court has scheduled a hearing for May 20, 2002, to set the trial date in the case.

Elcomsoft is the employer of Russian programmer Dmitry Skylarov, who was also originally charged with criminal violations of the DMCA.

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About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to websites in the world:
http://www.eff.org/

Contacts:

Cindy Cohn, Legal Director
cindy@eff.org
+1 415-436-9333 x108 +1 415 823-2148 (cell)

EFF Thanks Covington and Burling

EFF thanks the law firm of Covington & Burling and its law librarians for the donation of
the legal treatise, McCarthy on Trademark and Unfair Competition. Covington is a leading
international law firm, with over 500 lawyers practicing in Washington, New York, San Francisco,
London, and Brussels.

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