EFFector, Vol. 15, No. 24; August 9, 2002

EFFector
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EFFector Vol. 15, No. 24 August 9, 2002 ren@eff.org

A Publication of the Electronic Frontier Foundation ISSN 1062-9424

In the 224th Issue of EFFector:

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EFF Submits Letter to FCC Chairman Regarding BPDG Proposal

The Honorable Michael K. Powell
Chairman
Federal Communications Commission
445 12th Street, S.W.
Suite 8C453
Washington, DC 20554

I am writing to you today in regards to the digital television Broadcast Flag; specifically, I write in response to Sen. Hollings' and Representatives Dingell and Tauzin's letters of July 19, which urged you to mandate the Broadcast Flag proposal outlined in the final report of the Broadcast Protection Discussion Group.

The Electronic Frontier Foundation (EFF) is a donor-supported non-profit organization that works to uphold civil liberties interests in technology policy and law. EFF has played a critical role in safeguarding crucial freedoms related to computers, the Internet and consumer electronics devices, defeating the restriction on strong cryptography exports; securing the legal principle that Internet wiretaps must only proceed in conjunction with a warrant; and defending academics, researchers and commercial interests against DMCA-related prosecution.

EFF was an active participant in the Broadcast Protection Discussion Group. We attended the group's meetings and conference calls and participated in the group's policy and technical mailing-lists. EFF also maintains a web-site that was and is the only public source of information on the Broadcast Flag negotiations and proposal. The site can be found at http://bpdg.blogs.eff.org. EFF devoted thousands of staff-hours to publicizing the existence and nature of the BPDG to the public, to civil liberties and consumer-advocacy groups, and to entrepreneurial companies and software authors whose products were threatened by the proceedings.

When you and I met at Esther Dyson's PC Forum last March, we spoke briefly about the civil liberties interests that would be undermined by the Broadcast Protection Discussion Group's mandate. The BPDG proposal will have grave consequences for innovation, free expression, competition and consumer interests. Worst of all, it will add unnecessary complexity and expense to the DTV transition, compromising DTV adoption itself.

As you are aware, technologists have traditionally manufactured those devices they believed would be successful in the market, often in spite of the misgivings of rights-holders. From the piano roll to the PVR, technologists have enjoyed the freedom to ship whatever products they believe the public will pay for; what's more, innovation has always thrived best where there were the fewest regulatory hurdles. NTSC tuners and devices are governed by precious few regulations, and consequently we see a rich field of products that interact with them, from the VCR Plus to tuner-cards for PCs to the PVR. The Broadcast Flag proposal would limit technologists to shipping those products that met with the approval of MPAA member companies. No entrepreneur or software author will know, a priori, whether his innovative DTV product will be legal in the market until he has gone to the expense of building it and taking it around to the Hollywood studios for review.

Consumers and industry alike have benefitted greatly from the "Open Source" or "Free Software" movement, in which technologies are distributed in a form that encourages end-user modification. From server-software like the web-wide success-story apache, to operating systems like GNU/Linux, to consumer applications like the Mozilla browser, Free Software is a powerful force for innovation, consumer benefit and commercial activity. The BPDG proposal implicitly bans Free Software DTV applications -- such as the DScaler de-interlacer and the GNU Radio software-defined radio program -- as these applications are built to be modified by end-users, something that is banned under the BPDG proposal. The tamper-resistance component of the BPDG's "Robustness Requirements" will create and entire class of illegal software applications, abridging the traditional First Amendment freedom enjoyed by software authors who create expressive speech in code form under one of several Free Software/Open Source licenses.

The BPDG nominally set out to create an objective standard, a bright line that technologists could hew to in order to avoid liability when deploying their products. However, the end product of the BPDG was a "standard" that contained no objective criteria for legal technology; rather, the standard required that new technologies be approved by MPAA member companies. Not uncoincidentally, the only technologies that were approved by the MPAA -- and hence the only legal technologies -- were those produced by the 4C and 5C consortia, a group of technology companies that acted as the MPAA's allies throughout the BPDG process. This is an harbinger of the sort of regime that the BPDG standard will usher in: technology companies will be able to shut their competitors out of the marketplace by allying themselves with Hollywood, brokering deals to allow certain technologies and outlaw others.

The marketplace is a proven mechanism for rapidly and efficiently producing products that increase the value and desirability of new technologies, such as DTV. A BPDG mandate would subvert the market for DTV innovation. Competing companies with lower-cost DTV technology alternatives would be restrained from bringing these to market if they failed to assuage the MPAA's concerns about unauthorized redistribution. Furthermore, the universe of unauthorized-but-lawful uses for DTV programming will be shrunk down to the much smaller space of explicitly authorized uses. The ability of the public to make unauthorized-but-lawful uses of television programming has been an historical force for increasing the value of broadcast programming, from the VCR to the PVR.

Ironically, the inevitable damage that a Broadcast Flag mandate would do to innovation, competition and consumer interests can only slow down DTV adoption, by driving up the cost of DTV devices while reducing the number of desirable features that an open market would create. If the public is offered less functionality for more money, they will not flock to DTV.

The most disheartening thing about the Broadcast Flag is that there is neither a strong case that the Broadcast Flag is a necessary tool for protecting copyright, nor that the Broadcast Flag would be effective in that role. The existing practice of Internet infringement of broadcast programming -- analog captures from devices that satisfy the requirements of the BPDG proposal -- would not be stopped by the presence of a Broadcast Flag. Higher-resolution DTV signals will likewise present no challenge to determined infringers, who can capture full-quality analog signal from DTV devices and then re-digitize them, suffering only a single generation's worth of loss-of-quality before the programming enters the Internet.

Meanwhile, the underlying rubric for a Broadcast Flag -- that infringement will undermine Hollywood's business to the point that movies will no longer be available to the public, reducing the value of DTV -- is no more than superstition. No credible study or analysis, undertaken by a neutral party, has ever been presented to Congress, the FCC, the CPTWG or the BPDG supporting this notion. The public is being asked to sacrifice its rights in copyright; industry is being asked to place its right to innovation in the hands of entertainers; the US government is being asked to mandate extraordinary, unprecedented regulation of the $600 billion technology sector -- all on the uncorroborated opinions of a few studio executives.

EFF welcomes the FCC's oversight of the Broadcast Flag issue. The BPDG proceedings took place behind a shroud of secrecy, in a looking-glass "public process" where only those participants the organizers wanted to hear from were made privy to its existence, where the co-chairs invented rules and processes on the fly to suit the needs of the entertainment interests and the technology companies that had privately secured a promise of a legal monopoly for their products, where the press was banned.

The FCC has an admirable tradition of seeking and weighing public opinion in its proceedings. As the FCC considers the Broadcast Flag, EFF hopes that it will start anew, setting aside the findings of the BPDG in light of the concerns raised by Microsoft, Philips, Sharp, Thomson, and Zenith, as well as non-profit organizations including EFF, Consumers Union, Consumer Federation of America, the Free Software Foundation, Public Knowledge, digitalconsumer.org, the Center for Democracy in Technology, and the Computer and Communications Industry Association.

Thank you for attention in this matter. Please let me know if we can be of any further assistance to you.

Links:

Update on Intel Corp. v. Hamidi

Intel Corp. v. Hamidi is now on appeal to the California Supreme Court. EFF filed an amicus brief in support of Ken Hamidi on Aug. 6, 2002. The facts are simple: Over about two years, Hamidi on six occasions sent e-mail critical of Intel's employment practices to between 8,000 and 35,000 Intel employees. Intel demanded that Hamidi stop, but he refused. Intel obtained an injunction barring Hamidi from e-mailing Intel employees at their Intel e-mail addresses, based on the common-law tort of "trespass to chattels." ("Chattel" is a legal term that refers to personal property, as opposed to property in land.)

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DeCSS Author Johansen's Trial Rescheduled

The trial of Norwegian teen Jon Johansen, who created the controversial DeCSS software, has been pushed back again. It is now scheduled to be heard on December 9, 2002, in Oslo, Norway. In the fall of 1999, Johansen and his team reverse-engineered the content scrambling system (CSS) software used to encrypt DVDs in an effort to build a DVD player for the Linux operating system. In January of 2002, the Norwegian Economic Crime Unit (OKOKRIM) charged Johansen with a violation of Norwegian Criminal Code Section 145.2, which outlaws breaking into a third-party's property in order to steal data that one is not entitled to. This prosecution marks the first time the law will be used to prosecute a person for accessing his own property (his own DVD). Johansen faces two years in prison if convicted. The prosecution is based on a formal complaint filed by the Motion Picture Association. The trial had originally been scheduled to take place in June of 2002 but was rescheduled when the court could not find any qualified judges to hear Johansen's case. Now the case is scheduled to be heard by a three-judge panel. Help Jon in his battle against Hollywood movie studios, donate to his legal defense fund at: http://www.eff.org/support/jonfund.html

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Bunnie Presents Paper on XBox Reverse Engineering

Paper Explains Flaw in Videogame Security System

Researcher Escapes Chilling Effect of Digital Copyright Law

Electronic Frontier Foundation Media Advisory

For Immediate Release: Thursday, August 8, 2002

San Francisco - The Electronic Frontier Foundation (EFF) is pleased to announce that former MIT doctoral student Andrew "Bunnie" Huang will present a paper explaining a security flaw in the Microsoft Xbox (TM) videogame system.

Huang will present his paper, "Keeping Secrets in Hardware: the Microsoft X-BOX Case Study," at 5:25 p.m. PDT on August 13, 2002, at the 2002 Workshop on Cryptographic Hardware and Embedded Systems (CHES 2002) in Redwood City, California (Aug. 13-15, 2002).

The Xbox security system is intended to allow people to play only videogames authorized by Microsoft. Huang's paper "shows how a person could defeat that system with a small hardware investment," said MIT Professor Hal Abelson, one of Huang's advisors. "More importantly, the paper relates the security vulnerability to a general design flaw shared by other high-profile security systems such as the government's Clipper Chip and the movie industry's Contents Scrambling System (CSS) for DVD players."

Huang contacted EFF in March after his advisors told him that his preliminary findings raised potentially significant legal questions. With the help of Boston College law professor Joe Liu, EFF worked with Huang, Abelson, and MIT administrators to analyze the legal issues and draft letters notifying Microsoft of Huang's research findings and intended publication, one of the steps encouraged by Digital Millennium Copyright Act (DMCA).

Microsoft told Huang and Abelson that while it might prefer that the paper not be published, it would be inappropriate to ask MIT to withhold the paper.

"Microsoft deserves praise for making no attempt to control publication," said Abelson. "Their response shows that they value academic freedom, and that they appreciate the critical role of unfettered research and publication in advancing technology."

Other companies have reacted otherwise, using the DMCA to threaten researchers. The Recording Industry Association of America last year warned Princeton Professor Edward Felten after his research team exposed weaknesses in digital music security technologies. Last month, Hewlett Packard (HP) threatened research collective SnoSoft over exposing a security vulnerability in HP's Tru64 Unix operating system. Soon after, HP clarified that it would not use the DMCA to stifle research or impede the flow of information that would improve computer security.

Huang said that while he is glad he can openly present his paper, "The DMCA clearly had a chilling effect on my work. I was afraid to submit my research for peer review until after the EFF's efforts to clear potential legal restraints."

"Researchers should be analyzing security, not worrying about getting sued," said EFF Senior Staff Attorney Lee Tien.

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EFF Thanks Defcon

EFF thanks The Dark Tangent and other organizers of the DEF CON X convention for their generous donation of exhibition space at DEF CON (http://www.defcon.org/). DEF CON is an "underground" computer security conference held each summer in Las Vegas.

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EFF Booth at LinuxWorld

Come visit EFF at booth #488 at Linuxworld next week. We'll be passing out information, good cheer, and a slew of new stickers.

Where: Booth #5
      Moscone Center
      747 Howard Street
      San Francisco, CA 94103

Links:

Baen Books expands fair-use-friendly e-book program

Baen Books will bind a CD-ROM into the October 2002 hardcover edition of *War of Honor,* the latest volume in David Weber's epic Honor Harrington space-opera. The CD will contain at least 22 complete novels, all in open formats like html and RTF, with the fair-use-friendly admonishment "This disk and its contents may be copied and shared but NOT sold." Included on the disk are the entire Honor Harrington series to date, as well as other titles from the Baen line, including Keith Laumer's *Retief!* and Larry Niven and Jerry Pournelle's *Fallen Angels*.

Baen has been a banner-carrier for fair-use in electronic publishing, shipping text and html files that can be played on a multitude of devices. Other publishers have chosen to publish their material in copy-controlled formats that make it impossible to legally loan or resell the titles you purchase, are locked to a specific device, can't play on every operating system, and occasionally lock out assistive technology like the screen-readers employed by the blind.

Dmitry Skylarov, a Russian scientist, was arrested in July 2001, for demonstrating how end-users could defeat the copy-prevention employed by Adobe's e-book technology. Adobe asked the FBI to arrest Skylarov for violating the Digital Millennium Copyright Act (DMCA), which makes it a crime to describe techniques for circumventing copy-prevention technology. Though Skylarov was later released, his employer, ElcomSoft, is still facing charges in the USA, and the Russian government has issued an advisory warning Russian scientists to steer clear of American technical conferences until the DMCA is repealed.

You are about to start playing with a CD-ROM that has fairly extraordinary content. As of this writing it includes twenty-two UNENCRYPTED novels in several formats, the ten Honor Harrington Novels, 3 Honor Harrington Anthologies and 9 novels by friends of Honor, and by the time of distribution it may well contain more. (More than twenty novels for free, and with no stupid codes to work around. Think of that.) The reason for the plethora of formats is to try to please the people who want to read the novels on their Palm Pilots or other text-specialized palm-sized devices.

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