[Ethan is an attorney in Washington. --Declan] --- From: "Ethan Ackerman" <eackerma@private> To: "Declan McCullagh" <declan@private> Subject: RE: "broadcast flag" - the details Date: Wed, 5 Nov 2003 11:09:56 -0500 [[Feel free to attribute to me, this is just my 2 cents, and is not attributable to any past, present or future employers.]] Declan, This is a final order from the FCC - effectively the law of the land unless a court overturns it. A few big-picture thinkers with some foresight (Jamie Love at the Consumer Project on Technology) recognize that this is roughly the DMCA-ization of over the air digital broadcast, and are struggling against similar efforts right now as they are pushed at WIPO and other international treaty processes. Summary: What this Order means is that after June 2005 EVERY device that can receive over the air Digital Television (DTV) broadcasts OR is designed to handle DTV streams from a tuner must be capable of recognizing the "broadcast flag" and following FCC's rules for content protection. The FCC in the order says they mean "EVERY DTV device", and explicitly includes PCs with tuner cards, etc. The details: -The Order identifies the ATSC DTV flag stand as the official "broadcast flag," a bit of code at the beginning of the digital bit stream that signals the stream is protected. (See http://www.atsc.org/document_map/psip.htm for nitty-gritty.) IMPORTANTLY, the FCC doesn't REQUIRE broadcasters to flag every DTV broadcast, it just say IF flagged, this particular ATSC flag must be used. (i.e. any broadcaster , from your local PBS station to NBC's nightly news stream to FOX's special broadcast of the Matrix, COULD still broadcast unflagged DTV.) -This issues is mostly separate from the copy protections on cable TV and satellite, which have had some type of protections for a while. This Order applies to over the air digital television equipment (including e.g. HDTV) -The Order requires all covered devices manufactured after July 1, 2005 accept the broadcast flag and follow a set of rules for handling DTV content with the flag. (This is not a retroactive rule, manufactures can make whatever they want before then, and consumers don't "have" to go out and buy new equipment on July 1, but see comments below on how this will effectively "force" consumers to buy new equipment.) -The FCC Order requires that every covered device can only handle the protected content in "7 ways," (roughly: unrestricted conversion or transmission to analog, digital output to a few legacy low-end digital displays, or digital format or output ONLY with some type of "approved copy protection.") -The Order requires that every covered device that passes content to another covered device do so only in certain "Robustly" protected ways, to prevent unauthorized distribution. The FCC roughly defines "Robust" as not accessible to the average consumer, with several specific examples: PCMCIA busses, SmartCards, PCI cards are all declared NOT Robust, as is anything that can be overcome with decompilers, debuggers, EEPROM readers, screwdrivers, jumpers, or a soldering iron. CPU and memory busses are all declared "Robust." -The FCC indicated in their ruling that the formal process for approving each "copy protection scheme" will be decided in a subsequent rulemaking, but also enacted interim standards. -The interim standards allow anyone who believes they have a good standard to "certify" to the FCC that it is good, and disclose several aspects of it. After 20 days of public comment (and 10 each for rebuttal and counter-rebuttal, if necessary) the FCC will look at all comments and either approve or deny each submitted standard. Manufactures will be able to comply with any of the approved standards, so if the FCC approves more than one, they can pick and choose. ---------------------------------------------------- ---------------------------------------------------- my comments & observations: - The FCC makes a BIG point of claiming this is to prevent "Internet redistribution" and NOT to restrict individual consumer copying or uses. ("consumers' ability to make digital copies will not be affected; the broadcast flag seeks only to prevent mass distribution over the Internet." is the quote from FCC summary at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-240759A1.pdf) This is NOT TRUE, and rather deceptive of the FCC. Consumers' ability to make digital copies WILL BE affected. The text of the order basically only allows flagged content to be copied or transmitted to devices that have "approved copy protection." The FCC requirements for an "approved copy protection" are a 4-part standard, one part of which WEIGHS the "extent to which the digital output protection technology or recording method accommodates consumers' use and enjoyment," but NO part of which requires the continued availability of any consumer copying. I emphasize WEIGHS because it is not determinative, the FCC can consider it if it wants to. The FCC TECHNICALLY might not be preventing consumers from making digital copies itself, but they ARE requiring adoption of a technology that is inherently designed to restrict or prevent consumer copying. -While the FCC also makes a BIG point of claiming this ruling does not cover most consumer electronic devices, this is again rather deceptive. ("digital VCRs, DVD players and personal computers that are not built with digital tuners installed are not required to comply with the new rule." is the quote from the same summary.) AGAIN, rather deceptive, in two ways. The Order has its own special category and regulations for devices where the tuner/demodulator is separate from the signal processor, but they are designed to work together. An example would be a PC card with a DTV tuner built in, and separate hardware/software for handling the signal. Another example could be a digital tuner as part of a stereo component system, linked to other stereo components. In most such cases, the tuner would have to meet special FCC "Robustness" requirements in how it passed the signal to other components. The second way the FCC's claims are deceptive is the more troubling of the two, and that is the compatibility problem I spoke of above. Arguably right now a TiVO or a DVD recorder with no tuner might not be covered, but after 2005, that same TiVO or DVD probably won't be compatible with the new FCC-governed DTV television set. ***THIS is the REAL problem. Whiles the FCC says the device is not covered, after 2005, in many cases it just won't work. *** The new FCC compliant DTV tuner, with its outputs restricted to analog or some copy-protected digital output, won't be able to transmit freely copiable digital output, but only a NEW copy-protected digital stream standard. So while the rule technically doesn't cover most consumer electronic devices, it mandates an important category of them (tuners) adopt a new technology that will surely cause compatibility problems with other devices. (The FCC acknowledges one example of the potential for significant incompatibility in footnote 47 on pg. 10 of its 72 page order, but keeps right on representing otherwise in press releases.) -The Order recognizes not all tuners are sold to consumers as a finished product, and so the FCC has also initiated a new regulatory reporting and compliance regime for intermediate sellers. The Order requires any tuner component manufacturer that sells a tuner demodulator (i.e. the actual receiver, even if not yet attached to a television tube, or PC card, or circuit board for a combo TV/VCR, etc.) OR certain downstream products designed to handle DTV content to get a WRITTEN promise from the buyer that the buyer will comply with the "approved copy protection" standards, and the buyer must file that written promise with the FCC. If the buyer doesn't comply, it is an FCC violation. - Black Market activity and criminalization of common consumer behavior are likely problems. Importation of non-compliant devices after 2005 is an FCC offense, and no exception exists for individual consumer importation. Live in Seattle, cross over to Victoria, BC to take advantage of the strong American dollar? Don't buy just any TV set there after next July. The FCC is a little inconsistent on this point, though, it does allow US manufacture after 2005 of non-compliant devices FOR EXPORT. (Quote from order: "The requirements of this subpart do not apply to Demodulators, Covered Demodulator Products or Peripheral TSP Products manufactured in the United States solely for export.) ------------------------------------- -Ethan Ackerman _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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