From: "Ethan Ackerman" <eackerma@u.washington.edu <mailto:eackerma@u.washington.edu>>
To: "Declan McCullagh" <declan@well.com <mailto:declan@well.com>>
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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