House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Written Evidence

Memorandum submitted by Electronic Frontier Foundation

OVERVIEW

A little-noticed standards body is crafting a new regime of restrictions that will shape the future of television. The Digital Video Broadcasting Project (DVB) is a standards-specifying body that creates standards for digital television in Europe, Australia, and much of Asia[16]. Consumers—who have not been consulted—have much to fear from behind the closed doors of DVB.

In 2003, DVB stepped outside its usual domain of specifying modulation schemes for satellite, cable, and terrestrial broadcasts, and undertook a radically different work-item: specifying a far-reaching system of use-restrictions on digital television programming.

This specification is called Content Protection Copy Management (CPCM) and it represents a grave danger to national development priorities, social concepts of the family, competition, customary public rights in copyright, and innovation.

When CPCM emerges from its DVB committees, it will be presented to the European Telecommunications Standards Institute (ETSI), the European standardisation body that turns the DVB's specifications into standards. Thereafter, each nation whose digital television system is based on DVB specifications will be encouraged with all the lobbying pressure big US entertainment companies can bring to bear to adopt regulations giving CPCM the force of law. This is because CPCM is not free-standing and capable of voluntary adoption by the private sector; it requires the force of law to be effective[17].

Every nation that mandates DVB CPCM signs away its citizens' rights, signs away the competitiveness of its technology industry, signs away its domestic artists' self-determination, and signs away its programmers' rights to innovate and publish their work.

CPCM represents an unprecedented level of control for entertainment companies over the technologies that let the public enjoy and use lawfully received television programming.

Summary

— DVB creates digital television specifications for use in Europe, Asia, Latin America and Australia.

— A DVB project called Content Protection and Copy Management (CPCM) goes beyond the customary work of setting television standards to set out specifications for restricting how television programmes are used after reception.

— CPCM represents a grave danger to nations that mandate it as part of their digital television strategies.

ABOUT DVB, DIGITAL TELEVISION, AND THE BROADCAST FLAG

DVB is a standards-specifying body for digital television (DTV). As countries around the world undertake the transition from analogue to digital television, various standards bodies are formulating schemes for encoding, transmitting, receiving and decoding DTV signals. Among other things, these bodies formulate systems for broadcast "terrestrial" DTV (DTV signals sent through the air from a traditional broadcasting tower), DTV over cable and satellite, and DTV that is optimised for reception on mobile devices, such as cellular telephones.

The transition to DTV is a policy priority through much of the world. In nations that allocate spectrum rights by auction, for instance, the electromagnetic spectrum used by analogue broadcasters is viewed as a potential source of billions for national treasuries, once it has been freed up from analogue TV transmissions and sold on for use by mobile telephony and wireless data applications. Alternatively, this spectrum could be productively given over to unlicensed spectrum users as was done with the spectrum used by WiFi devices.

But switching off analogue television transmissions is fraught with political peril. An elected lawmaker who orders analogue transmissions to cease before her constituents have purchased digital receivers will find herself facing a great deal of political unrest, as voters discover that their television sets no longer work.

In the US, this problem has severely delayed the analogue switch-off. The focus there is the attempt to lure Americans to DTV with high-definition broadcasts that provide some qualitative improvement over the old standard-definition transmissions. Thus far, this value proposition has failed to persuade a significant proportion of the American audience. This failure has been politically exploited by entertainment firms who induced to US Federal Communications Commission to adopt a regulation known as the "Broadcast Flag", nominally to spur the DTV transition.

In adopting the broadcast flag rule, the FCC agreed to dramatically limit the functionality of DTV devices—to prohibit features the motion picture studios characterized as challenging their business models—in the hopes that the studios would release feature films and other popular programming for terrestrial DTV broadcast. Though the studios drafted this regulation and achieved its adoption through their lobbying efforts, they never promised to provide any DTV programming in exchange for the regulation; rather, they threatened to withhold DTV programming if it were not adopted.

The Broadcast Flag relied on a signal that can be embedded in any DTV programme, which, when detected, triggers the use-restriction technologies that the studios wanted included in DTV receivers. This signal—a simple "on" or "off"—is possible because the US DTV standard set by the Advanced Television Standards Committee (ATSC, a rival of the DVB) reserved a place in the signal for a "redistribution control descriptor". This left a slot open for a legal mandate and then the studios convinced the FCC, as the regulator, to fill that slot.

In May 2005, the United States Court of Appeals for the District of Columbia Circuit struck down the Broadcast Flag regulation[18] on the grounds that the Commission did not have the jurisdiction to regulate what devices do after receiving a programme. In the words of the court, "In the seven decades of its existence, to FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims." [19]

The studios have responded by floating a very broad legislative proposal that will give the Commission "authority to adopt regulations governing digital television apparatus necessary to control the indiscriminate redistribution of digital television broadcast content over digital networks".[20] As of August 2005, this proposal has not been introduced in the U.S. Congress. Legislators may be sceptical of it because of public sentiment against the broadcast flag and because it could substantially expand the Commission's jurisdiction.

DVB

DVB was founded in 1993 with the understanding that it was embarking on a specific task: specifying a modern digital television standard for use in Europe and beyond. This standard would specify modulation schemes and other technical elements of DTV systems up until the point of signal reception. Once this standard was to everyone's liking, the DVB would wind down or reconstitute to address new issues[21].

However, in 2003, the DVB embarked on a very different sort of project. At the behest of the same Hollywood studios that backed the US Broadcast Flag, the DVB embarked on a project to build a system for restricting what owners of digital television sets will be able to do with TV programmes after they have received them.

This project is called Content Protection and Copy Management (CPCM), and the DVB has put it centre-stage in its plans for DVB 3.0, the forthcoming version of the DVB standard[22]. The scope of the US broadcast flag regulation was relatively narrow—the redistribution control flag could only be present or absent. DVB CPCM, by contrast, is specifying remarkably fine-grained and elaborate means by which broadcasters can control the detailed functionality of receiving devices. In effect, CPCM and its constituent specifications amount to a complicated, lengthy, and, at present, secret body of private law that describes rules and restrictions potentially applicable to all manufacturers of DTV devices. It is already clear that at least some CPCM co-authors expect—and require—the co-operation of regulators to make this scheme obligatory upon these manufacturers[23].

CPCM has taken up more and more of DVB's energies, and has been the source of much controversy in the popular press. Several Hollywood studio executives sit on the DVB steering committee. At the same time, the body's focus is shifting from drafting technical specifications to writing laws that prop up American companies' business models as practiced abroad and at home.

Government intervention in DTV standards is already ubiquitous. Governments have perceived a public interest in seeing to it that every broadcaster who makes use of the public's airwaves does so in a fashion that is robust—so that a clear, reliable signal may be received—and that follows standard formats so that those citizens who buy digital televisions can be certain that their sets will receive local transmissions. Whether or not this view of government's role in standardization is appropriate today, state adoption of a terrestrial DTV standard—and the promulgation of accompanying regulations—continues to be the international norm.

This puts DTV standards into the narrow, special class of standards that are backed by the force of law. Other standards—like HTTP, which underpins the World Wide Web; or ISO 9000, which specifies best practices for manufacturers—are voluntary. Businesses and inventors choose which standards they will employ in order to yield the highest return on investment, based on perceived marketplace demand, utility and cost of implementation.

In DTV contexts, though, the implementers of receivers, transmitters and related devices are often required to adhere to the standards set out by the national regulator. A noncompliant implementation isn't merely noncompliant—when mandated, it is illegal. The traditional telecommunications regulator's remit covers to use of the airwaves—the kinds of radio waves a device can emit Broadcast flags are a new kind of mandate: a mandate over what devices can do with radio waves after they've been received in the privacy of your own home.

This is why CPCM is more a law than a standard. It sets out to "protect business models"[24]. ATSC's more modest "redistribution control descriptor" leaves a void that might be filled with a regulation—at DVB CPCM meetings, participants are boldly writing a regulation aimed specifically at advancing one group of incumbents' business model.

Is CPCM Necessary?

Global experience with digital television and radio broadcasting suggests that CPCM is unnecessary. Digital television is not inherently risky to rights-holders. Digital redistribution of recordings of analogue television programming is already ubiquitous, and there is no element of DTV that makes it any easier to redistribute over the Internet.

Indeed, practically every single one of the current analogue TV offerings is recorded and redistributed over the Internet, suggesting that the "easy enough" point has already been reached, and no further "progress" in this field is necessary to enable more infringement or distribution—these activities are already undertaken by everyone who cares to do so. It is therefore hard to see how DTV can possibly increase the practice of sharing of recorded TV programmes.

Even though every TV programme aired is freely downloadable from the Internet, sales of classic programmes on DVD are strong and growing year on year. Ironically, switching to high-definition broadcasts may impede Internet redistribution, rather than accelerating it, since:

— It is harder to redistribute a high-definition programme over the Internet (the large file size of a high-definition programme makes it practically impossible to redistribute over today's P2P networks witout substantial massaging to "down-rez" (compress) it, a process that generally renders the file indistinguishable from one recorded from analogue transmission).

— A viewing public that is accustomed to high-resolution transmissions will be less likely to substitute a down-rezzed P2P download for an authorized, high-definition version.

Overhanging these discussions is the spectre of risk that the studios will make good on their threats not to release their material for DTV transmission without an agreement to restrict the features in DTV devices. This threat was oft-repeated during the FCC's deliberation on the Broadcast Flag, and surfaced as recently as the DVB World conference in March 2005 in Dublin[25].

The US experience shows that these threats are not very credible, however. Viacom, parent company of the USA's CBS told the FCC that it would cease to transmit DTV programming in summer 2003 unless the Broadcast Flag mandate were operational[26], yet years after the expiration of its deadline, CBS and other Viacom subsidiaries have made no move to reduce or pull DTV programming. Similarly, the studios roundly decried the BBC's move to transmit unencrypted satellite signals and promised to stop licensing to the BBC—a threat they likewise did not make good on. In fact, a quarter century ago, during the fight over the legality of video cassette recorders (1976-84)[27], the studios repeatedly promised never to release a single movie on pre-recorded cassette—again, a threat that crumbled in the face of consumer demand.

The studios are businesses and they depend on broadcast revenue to make their bottom lines. In general, with or without the ability to control entertainment technologies, the studios must license their programming for distribution if they are to preserve their sources of revenue. Stepping out of the market to attempt to control device design will never be a plausible long-term strategy for studios who need customers to survive.

Finally, even if the movie studios make good on their threat to withhold content from digital broadcast, a host of diverse new content producers wait in the wings to fill any broadcast vacuum left by obstinate studios. In the US, for example, HDNet has rapidly become one of the biggest producers of DTV programming. Mark Cuban, billionaire founder of HDNet, has repeatedly stated that he views restrictions like CPCM as unnecessary to the success of his and other new DTV ventures.

In the US, luring consumers to a digital transition via high-definition offerings has met with little success. By comparison, the UK has adopted a "Freeview" strategy through which consumers are lured to purchasing DTV receivers with the promise that these receivers will give them up to 30 free standard-definition channels on their existing sets, for life, with no subscription fees[28]. Free TV is more valuable than high-resolution TV. High-definition TV is most properly seen as the icing on the cake, a way to lure a few videophiles into the digital fold, not the core value-proposition for a switch away from analogue.

In general, Europe's digital broadcast strategy has relied more on the carrot than the stick. The UK's Digital Audio Broadcasting (DAB) system is wide open, and anyone can build a DAB receiver. There are numerous entrepreneurs, garage inventors, and mainstream companies innovating in the DAB space, with recording devices proliferating and readily available DAB support on the PC[29].

By every metric—programmes on the air, revenue to studios, rate of consumer DTV adoption—the European carrot approach beats the American stick approach. DVB CPCM as a policy proposal would thus mark a radical departure from European norms, which are based on user-friendliness, technological openness, and interoperability.

Summary

— CPCM is the DVB's answer to the failed American Broadcast Flag, an attempt to buy the studios' co-operation with the digital TV transition by offering them control over DTV devices.

— The studios have no credible new threat from DTV, nor is there any reason to believe that they will avoid DTV in the absence of a CPCM regime.

— It is crucial to keep CPCM from being mandated in national laws.

CPCM OVERVIEW

The DVB CPCM specification is being developed in closed-door meetings. Joining DVB costs 10,000 Euros per year, and membership is only open to manufacturers, broadcasters, studios, and academics. Its proceedings and intermediate work products are not widely published or publicized[30].

Most of the details of CPCM have not been publicly disclosed. The material in this section is drawn from two public presentations, one given by the Motion Picture Association of America's (MPAA) Vice-President, Jim Williams, at the DVB World Conference in Dublin in March 2005[31], the other given by DVB Content Protection Technical Group chairman Chris Hibbert to the MPAA's Copy Protection Technical Working Group in Los Angeles in January 2005[32].

CPCM is a system to "enable . . . current & future business models"[33]. To accomplish this, CPCM employs three areas of specification:

— Usage State Information (USI). This is a set of commands that can be embedded in a TV programme. These commands instruct a DTV receiver to apply particular restrictions to the programme received by the device. Elements of USI include "Copy Once" and "Copy Never", "Proximity Control" and "View No More." The level of control afforded by USI is particularly extensive and fine-grained compared to the "rights expression" in older use-restriction schemes. This more precise level of control is intentional and regarded as beneficial by its authors.

— Definitions. CPCM defines new terms, "Authorised Domain" and "Local Environment." The definitions of these terms effectively set the boundaries of what a valid family is ("Authorised Domain") and how far apart two devices are allowed to be in order to interact ("Local Environment").

— Compliance rules. This is a set of rules for DTV device manufacturers. They limit the choices manufacturers can make in developing their products, and require them to implement technological measures they might not choose to use otherwise.

CPCM is intended to form the basis of a regulatory mandate throughout Europe, Asia, Australia, Latin America and all other countries that adopt DVB specifications. As DVB Executive and time Warner VP Spencer Stephens stated at DVB World, "[CPCM] need(s) to be mandated and protected by regulation." [34]To be effective, CPCM requires that more open and capable devices be precluded from the market. Otherwise, there is a risk that consumers would not purchase the less capable CPCM compliant devices. This, in turn, requires national technology mandates, to outlaw more capable devices.

As a result, to USI, definitions and compliance regime are best viewed as proposed device regulations, not as standards for achieving compatibility. Just as the U.S. broadcast flag regulation adopted by the FCC was derived substantially from the proposal produced by the Broadcast Protection Discussion Group (the ATSC world's counterpart to DVB CPCM), the CPCM "standard" is being written with an eye to its wholesale incorporation into a statute book.

The nominal purpose of CPCM is to "enable . . . business models", but this is an incomplete account. The real purpose is to enable the business models that rightsholders conceive of and endorse, even if it means disabling the business models employed by device vendors to enrich their customers' viewing experiences.

For example, the Virtuoso MC-500[35], manufactured by Neuston, is a commercially available tool for wirelessly retransmitting SCART signals over a short range. The right to retransmit a programme within a household (rather than stringing a wire) is included in the price paid by viewers for their television subscriptions and/or the subsidy provided to broadcasters in the form of free spectrum in which to broadcast.

CPCM USI would preclude this service by allowing broadcasters to disable analogue outputs, or to control the number of screens on which a programme may be viewed.

In other words, today viewers own the value implicit in being able to move a TV signal around their homes. Device vendors have created a business-model in helping viewers realise this value.

CPCM will enable the "business model" of taking away this value from Neuston's customers, rendering Neuston's products and those like it useless, and then selling this value back to customers as a value-added service on top of any existing payment for television reception. The public as a whole, including innovative new manufacturers, loses more value than any manufacturer recoups under a CPCM scheme.

Summary

— CPCM's main areas of specification are Usage State Information (complex instructions for restricting use after reception), definitional elements such as "Authorised Domain" (a proxy for one household's worth of devices), and compliance (rules that all manufacturers are required to follow in implementing CPCM).

— CPCM is intended to form the basis of regulatory mandates in Europe, Australia and parts of Asia and Latin America.

— CPCM exists to "enable business models" for rightsholders, even if doing so means destroying the business models of some manufacturers.

CPCM AND COPYRIGHT

Copyright has never been an absolute and unlimited property right. Rather, copyright is a limited monopoly granted to creators in order to provide an incentive to engage in more creative activity.

Every copyright system contains limitations, exceptions and exemptions to the exclusive rights of authors and performers. Software programmes are copyrightable as literary works, but in most jurisdictions, software may be temporarily copied in connection with legitimate acts of reverse engineering. Some countries may grant authors exclusive rights to authorise distribution of their works, but this is limited by the first sale/exhaustion doctrine, which permits private citizens to lend their music, books and movies to one another, and donate them to schools or charities.

The copyright in a movie or TV programme is also limited in many jurisdictions that recognize a right to make private copies of these works.

In crafting a copyright policy, lawmakers take great care to balance out the public interest with the need to give incentives to authors and performers. This care is reflected in the contours of the exclusive rights and the exceptions and limitations on those rights that are reserved to the public, and the latitude afforded to reverse engineering as a means of creating interoperable products.

CPCM is often described as a system for protecting copyright, but CPCM has been designed to protect exclusive rights that are not in any copyright system. Structurally, it does not even attempt to coincide with the concepts of any nation's copyright law. Instead, it aims to maximize the range and scope of copyright holders' and broadcasters' ability to impose restrictions unilaterally, and to allow these restrictions to be as fine-grained as possible. Broadly speaking CPCM takes rights away from the public and then allows them to be sold back piecemeal.

For example, many national copyright laws contain exemptions for members of the public who make copies of works in order to add assistive information required by people with disabilities. In the audiovisual realm, fans and public-spirited individuals often add subtitles to films to help hearing-impaired people, or narrative audio to help blind people. But within CPCM, the ability to open recorded programmes in a tool used for this purpose is limited by flags (such as the USI "Export Beyond Trust" flag) which rightsholders can apply or withhold at their discretion.

Likewise, the private performance and use of copyrighted works (often including private copying) is generally allowed without special permission from rightsholders. Copyright has traditionally regulated only public uses of works. If you want to bring a recorded TV programme upstairs to watch in the bedroom, or to a friend's house to watch there, or if you want to pause a movie before leaving for work and pick it up again when you get home, that is no one's business but your own.

But CPCM is capable of restricting all of these uses. Though a member of the public may have, under the laws of her jurisdiction, every right to time-shift or space-shift or use a pause button, there is nothing in the CPCM specification that prevents a rightsholder from unilaterally imposing restrictions on one or more of these activities.

In essence, CPCM allows rightsholders to manufacture new copyrights for themselves and then impose them on the public without regard to national copyright law.

Summary

— Copyright has many limitations, exceptions and exemptions that allow the public to make "unauthorised" uses of copyrighted works.

— CPCM does not respect copyright it runs roughshod over the public's rights in the copyright bargain, allowing rightsholders to misappropriate any exemption they desire.

— Coupled with a regulatory mandate, this amounts to permission to write private laws to underpin business-models, at the public's expense.

CPCM AND COMPETITION

No DTV technology is CPCM-compliant today (it would be impossible to build a CPCM device today, given the absence of a finalised CPCM specification). For the foreseeable future, CPCM will be present in a small minority of DTV devices.

The CPCM working groups recognise this and have made plans for a system for granting permission to non-CPCM systems to interoperate with a CPCM system.

In systems like this (eg, the licensing authorities for Digital Transmission Licensing Administrator's Digital Transmission Copy Protection (DTLA DTCP) and other DRM technologies), a managing body of yet-to-be-determined composition will meet with technology vendors who wish to interoperate with CPCM systems. These vendors will make the case for their technology, demonstrating that it has similar restrictions to CPCM and that it is licensed on similar terms to CPCM.

This is how licensing systems for similar restrictions systems work—such as the DVD CSS system that is used to ensure that features aren't introduced to DVD players that disrupt the studios' business models or provide unwelcome competition for incumbent technology manufacturers.

It is instructive to examine how these other restriction systems work in the field. In general, a technology company that wants to build such a system can do so (albeit sometimes at high expense[36]). However, the only companies that are given permission to add new features to the restriction systems are those that are "in the club" of companies that run the licensing for that technology.

For example, in 10 years of operation, the DVD-Copy Control Association (which licenses new features for DVD players) permitted the inclusion of no new interfaces in DVD players, save those that were created by companies that are active in the DVD-CCA. Indeed, one competitor of these companies, Kaleidescape, is currently being sued for adding a restricted hard-drive jukebox capability to DVD players. [37]

This concentration of manufacturers, erecting barriers to entry for competitors, has grave implications for competition, but it also impacts on the freedom of companies to contract.

That is because when Alice gets permission to use her technology in Bob's devices, Bob wants to know the terms under which Alice will allow all other companies to connect to her devices. Bob wants to be sure that a license to Alice doesn't inadvertently confer a license to Charlie or David to receive content from Bob's technology.

Which means that when Alice gets a license from Bob, Alice's dealings with others become subject to pressure from Bob. If Alice does a deal with Charlie, Bob may revoke Alice's license to receive the content from Alice's devices, citing Charlie's insecurity or general unfitness. Or Bob may exercise a veto over Alice's device, demanding that the content he provides not be output to Charlie's device.

This is the norm in DRM licensing today, but today's DRM licensing bodies compete in a market where vendors can choose not to do business with them. If CPCM becomes the subject of a national legal mandate, then the CPCM licensing cartel will dramatically undermine competition in the DTV marketplace.

Summary

— CPCM's interoperability with other technologies will be limited by contracts that ensure that no disruptive entrants to the market are permitted.

— These licensing regimes limit implementers' freedom to contract with other technology vendors.

— Historically, these licensing regimes limit innovation in the industries to which they are applied.

CPCM AND CONSUMER RIGHTS

The impact of CPCM on commercial interests will indeed be grim, but far worse will be its impact on consumer rights.

Today, consumers can purchase devices knowing what those devices do, and likewise can buy media with the understanding that their media will not be orphaned by the forcible withdrawal of players from the market.

If you buy a VHS VCR, you know that it plays VHS cassettes. You know that your VHS recordings will play on VCRs for so long as VCRs exist and so long as the tape holds out. You can reasonably assume that no law will be passed requiring manufacturers to cease offering VCRs in the market, so there will be a supply of VCRs into the foreseeable future, even if mainstream companies abandon them. If the VCR enjoys a renaissance (as has the turntable with the growth of DJ culture), there will be no legal impediment to manufacturers turning out VCRs to fill it.

But CPCM and systems like it are a very different matter. Take the question of whether a CPCM system is suited to some purpose—for example, whether a CPCM-based recorder can be used to create a collection of your favourite episodes of your favourite television programme.

If the device in question were a VCR, the answer would be a simple "yes".

But because CPCM devices are manufactured to respond to any USI that is applied to a given programme, the answer is "it depends". It may be that today you can record your favourite programme and transfer it to DVDs for long-term storage. But next week, the rightsholder for that programme can change the deal and apply USI to it that prevents the act of recording and/or the archiving to DVD. [38]

USI's complexity means that there is a vast number of ways in which your USI-compliant devices and media may fail you.

No one—not a sales-clerk in a shop or a manufacturer—can tell you, at the time of purchase, whether your device will record or display the programmes you've bought it for, nor whether it will go on doing so tomorrow.

Finally, there is the question of revocation. As with comparable restriction systems in the field, CPCM contains mechanisms for revoking the authority of devices and their outputs to play back media. Media can ship with codes that allow it to identify devices, peripherals and systems that it is not to be played back on, because that device is known to have been compromised.

The DVD player/recorder you have plugged into your receiver may not work on the next receiver you buy. The DVD you bring home may not work on that player. Your recordings may not play back the next device you buy. If someone, somewhere figures out how to get your technology to do something that the rightsholder group dislikes, they retain the power to retaliate by punishing a limitless number of innocent bystanders.

Summary

— It will be impossible to know, a priori, whether a CPCM device will allow you to use it in the way you intend on using it.

— Even if a CPCM device does work "out of the box", its functionality can be constrained at a later date by disabling its features or activating USI in programming that limits a desired feature

CPCM AND FREE/OPEN SOURCE SOFTWARE

CPCM contains a "robustness requirement" that demands that manufacturers design their technologies to resist end-user modification. This is an extraordinary requirement for free-to-air television receivers and the devices that connect to them, where the general rule has been that manufacturers are merely expected to make devices that work well, not devices that stymie their owners' attempts to modify them.

This has a particularly harsh impact on Free and Open Source Software (FOSS) development. FOSS is software that is released under a license that allows end users to modify it and redistribute it with their changes. Some FOSS licenses require those who modify and distribute a programme to release their modifications under the same terms.

Many large, successful companies employ FOSS for part or all of their business. These include such DVB members as Time Warner (Netscape), Sun Microsystems (Solaris) and Intel (compilers, test suites, libraries), as well as companies such as Red Hat (Red Hat Linux) and Google (Google Code).

FOSS delivers many benefits to manufacturers, including lower development and quality-assurance costs, more robust code, and the positive marketing effect of selling technologies that users are free to modify if they have the will and the ability.

The success of the GNU/Linux operating system and the Mozilla/Firefox browsers has demonstrated the ability of FOSS to act as a countervailing force to check monopolistic practices in the market (for example, the availability of the GNU/Linux operating system has led to lower cost licenses for Microsoft's operating systems in developing nations, and competitive pressure from the Mozilla/Firefox browser has resulted in a higher level of standards-compliance and functionality in Microsoft's Internet Explorer).

Most important is the ability of FOSS to foster innovation and the creation of knowledge and expertise by inviting all interested parties to collaborate with one another, by improving on each others' works, by modifying them, and by publishing their outcomes.

This is the programmer's equivalent of the scientific method, the centuries-old practice of publishing your work for peer review and to add it to the commonly held pool of knowledge.

Scientists, engineers and educators rely on FOSS as a tool for furthering the pursuit of knowledge. Imposing CPCM on digital television shuts them out of this promising area of inquiry.

Summary

— CPCM's robustness requirement will make it impossible to implement CPCM in free and open source software (FOSS) and hence FOSS programmes will necessarily be precluded from the market if CPCM is mandated into national law.

— The right of programmers to publish their work through FOSS regimes is often equivalent to other forms of scientific publishing and is often protected under free speech laws and traditions.

— The CPCM robustness regime will therefore stifle free and open source software and the scientific inquiry that relies upon it.

THE BROADCAST FLAG, THE BROADCASTERS' TREATY AND CPCM

CPCM is part of a global strategy on the part of the Hollywood companies to create a new regulatory regime that allows them to use their limited copyright monopoly over who can copy their movies to obtain an unlimited monopoly over who can design new interoperable technologies that challenge their business models.

At the DVB World conference in March 2005, Spencer Stephens, speaking on behalf of the North American Broadcasters' Association, offered a presentation on this subject. Stephens is an executive with TimeWarner, and represents that company within DVB, where he sits on the steering board.

This presentation laid out a roadmap for stitching the US Broadcast Flag and the DVB initiative into a global system for restricting recording and distribution. The presentation went on to call for the incorporation of obligations to mandate redistribution controls into its proposed new World Intellectual Property Organisation Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations.

With the US Broadcast Flag in tatters, the Hollywood companies are engaged in the classic tactic of securing laws abroad that serve as justification for legislating an equivalent American regime (and vice versa). This transatlantic copyright ping-pong has already been used successfully by the studios to secure extensions of the term of copyright on both continents[39], each in the name of harmonising with the other, and to extend the scope of copyright well beyond its historical contours.

While DVB is often sold as a made-in-Europe solution, Stephens' presentation, coupled with the material emerging from CPCM shows that DVB's CPCM activity has been subverted to achieve American entertainment companies' goals at the expense of worldwide self-determination.

Summary

— CPCM is the latest salvo in a global campaign to restrict consumer rights that encompasses US initiatives like the Broadcast Flag and WIPO (UN) initiatives like the Broadcasters' Treaty.

— CPCM encompasses many failed US regulatory initiatives and the move to encase it in international treaty obligations will likely be used as leverage to get these initiatives reintroduced in the USA.

— CPCM compromises national self-determination by allowing US culture-exporting companies to dictate public policy.

29 September 2005

16 DVB specifications are proposed for adoption in much of the rest of the world, see http://www.dvb.org/graphics/internal/Adoption-Map_DVB-T.jpg Back

17 NABA Presentation, slide 17. Back

18 See American Library Association et al v Federal Communications Commission, (DC, Circ, May 6 2005) available at http//pacer.cadc.uscourts.gov/docs/common/opinions/200505/04-1037b.pdf Back

19 Ibid, at 2. Back

20 See http://www.corante.com/importance/archives/2005/05/12/mpaa_shopping_draft_broadcast_flag_legislation.php Back

21 See History of the DVB Project at http://www.dvb.org/index.php?id=31 and Preamble to DVB Memorandum of Understanding http://www.dvb.org/index.php?id=26 Back

22 CPTWG presentation, slide 2. Back

23 NABA Presentation, slide 17. Back

24 CPTWG presentation, slide 4. Back

25 Presentation of Robert Zitter, HBO, to DVB World conference, March 2005. Back