[Politech] Analysis of FCC's broadcast flag rules, from Ethan Ackerman

From: Declan McCullagh (declan@private)
Date: Wed Nov 05 2003 - 08:18:59 PST

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    [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
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