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EFFector - Volume 15, Issue 13 - EFF Drafts BPDG Report

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:

    * EFF Drafts BPDG Report
    * Judge Rejects Challenge to eBook Case

EFF Thanks Covington and Burling

For more information on EFF activities & alerts: http://www.eff.org/

To join EFF or make an additional donation:
  http://www.eff.org/support/

EFF is a member-supported nonprofit. Please sign up as a member today!
EFF Drafts BPDG Report
Asks co-chairs to adopt as final findings on digital television

Introduction

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.

The Consensus

To: BPDG Members and Co-Chairs

From: Electronic Frontier Foundation

Re: Draft report of the Co-Chairs

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.

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:

1. Digital Television is Beneficial and Desirable

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:

a) Digital television benefits the public

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.

b) Digital television benefits technologists

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.

c) Digital television benefits creators

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.

d) Digital television benefits the entertainment industry

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.

e) Digital television benefits the public interest of the United States

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.

2. Digital Television is Not Inevitable

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:

a) Digital television will obey Metcalfe's Law

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.

b) Digital television must include those features that users want

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.

3. Redistribution Control Technology is Unnecessary

a) Copyright law is sufficient

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.

b) Redistribution control punishes the innocent

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.

4. Digital Television Must Be Assisted

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:

a) No technology mandate must be permitted

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.

b) Tinkering must be encouraged

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.

c) The public interest must be served

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.

The Co-Chairs of the Broadcast Protection Discussion Group

Links:

"Consensus at Lawyerpoint," EFF weblog about the BPDG:
http://bpdg.blogs.eff.org

"Hollywood wants a stranglehold on your digital technology," San Jose Mercury
News
http://www.siliconvalley.com/mld/siliconvalley/business/columnists/guest_comm
entary/3218127.htm

EFF alert: Thank Philips for Standing up to Hollywood
http://www.eff.org/alerts/20020503_eff_thanks_philips.html

"Piracy": The Big Lie
http://bpdg.blogs.eff.org/archives/000056.html#000056

Mark Cuban: Ignore Hollywood
http://bpdg.blogs.eff.org/archives/000053.html

How to Join the BPDG Mailing-Lists:
http://bpdg.blogs.eff.org/archives/000005.html#000005

For more information on the future of digital television, see:
http://www.eff.org/IP/Video/HDTV/

Full text of CBDTPA (bill S. 2048):
http://www.eff.org/IP/SSSCA_CBDTPA/20020321_s2048_cbdtpa_bill.pdf

For more information about CBDTPA (and its older "parent", SSSCA), see:
http://www.eff.org/IP/SSSCA_CBDTPA/

EFF's "Frequently Asked Questions (and Answers) About Fair Use":
http://www.eff.org/IP/eff_fair_use_faq.html

Declan McCullagh Wired News article on CBDTPA, "What Hollings' Bill Would
Do":
http://www.wired.com/news/politics/0,1283,51275,00.html

EFF alert in support of Intel's Leslie Vadasz's statements on technology
mandates:
http://www.eff.org/IP/SSSCA_CBDTPA/20020308_eff_sssca_alert.html

Quaker Guidelines for Consensus Decision-Making:
http://personal2.stthomas.edu/JFLANDSBERGE/decisions/decisions/decision.htm

Contacts:

Cory Doctorow, EFF Outreach Coordinator
cory@eff.org
+1 415 436 9333 x106

Seth Schoen, EFF Staff Technologist
schoen@eff.org
+1 415 436 9333 x107

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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.

EFF filed an amicus brief in support of Elcomsoft.

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

Judge Whyte's latest ruling in Elcomsoft case:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_dismiss_deny_order.html

Elcomsoft case archive: http://www.eff.org/IP/DMCA/US_v_Elcomsoft

For this release:
http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020508_eff_elcom_pr.html
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)

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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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