Internetworkers: http://www.ibiblio.org/internetworkers/

[cstalberg AT internet-lab.com]

Who Controls Your Television?

How the Digital Video Broadcasting Project's DRM
Standards Jeopardize Innovation, Competition, and
Consumer Rights

<http://www.eff.org/IP/DVB/dvb_briefing_paper.php

Today, consumers can digitally record their favorite
television shows, move recordings to portable video
players, excerpt a small clip to include in a home
video, and much more. The digital television transition
promises innovation and competition in even more great
gadgets that will give consumers unparalleled control
over their media.

But an inter-industry organization that creates
television and video specifications used in Europe,
Australia, and much of Africa and Asia is laying the
foundation for a far different future -- one in which
major content providers get a veto over innovation and
consumers face draconian digital rights management (DRM)
restrictions on the use of TV content. At the behest of
American movie and television studios, the Digital Video
Broadcasting Project (DVB) is devising standards to
ensure that digital television devices obey content
providers' commands rather than consumers' desires.
These restrictions will take away consumers' rights and
abilities to use lawfully-acquired content so that each
use can be sold back to them piecemeal.

Consumers would never choose this future, so Hollywood
will try to force it on them by regulatory fiat. DVB's
imprimatur may put restrictive standards on the fast-
track to becoming legally-enforced mandates, and
existing laws already limit evasion of DRM even for
lawful purposes. In effect, private DRM standards will
trump national laws that have traditionally protected
the public's interests and carefully circumscribed
copyright holders' rights.

Hollywood has long pursued this goal in the U.S., but
its schemes in DVB have taken place behind the public's
back and outside of scrutiny by elected officials. In
this paper, we will summarize and expose Hollywood's
plan.

The Electronic Frontier Foundation (EFF) is the only
public interest group to have attended DVB's closed
technical meetings. As a condition of participation, DVB
imposed restrictions on our ability to report on these
meetings. Now, after key parts of DVB's new DRM
specification have been sent to the European standards
body and may soon be provided to other EU regulators, we
are releasing this paper to help consumer organizations
and EU regulators understand the significant public
policy implications of various DVB work items.
CPCM: A System to Control Innovation, Competition, and
Television Viewers

Despite record profits in recent years, American movie
and television studios have not relented in their cries
that new technologies are a mortal threat to their
industry. They sued to block the VCR and the first mass-
market Digital Video Recorder (DVR) in the U.S., and,
having failed to stamp out recording in those efforts,
they have increasingly turned to creating restrictive
technical standards backed by law.

Through DVB, the studios have taken this strategy
global. DVB's members include Hollywood studios, major
pay TV providers, free TV broadcasters, and some of the
largest technology companies in the world. The
consortium was founded in 1993 for the specific purpose
of crafting technical rules for receiving digital
television. Currently, DVB standards are limited to
getting TV signals to your house, but they do not limit
what you do with those signals after they've entered the
privacy of your home. Moreover, they do not require
technology developers to pass a user-restriction litmus
test before building new devices.

But that may soon change. Principally 1 at the studios'
behest, DVB has been working since 2003 on an elaborate
television DRM scheme called Content Protection and Copy
Management (CPCM). Its unparalleled restrictions
include:


  * Enforcing severe home recording and copying
    limitations. CPCM will allow content providers to
    apply copy restriction labels to broadcast streams.
    For example, a program could be marked as "Copy
    Never." In turn, your DVRs and others devices
    receiving the signal will have to obey and forbid
    copying even for home use. A content provider could
    opt to allow recording but still enforce a multitude
    of restrictions on copying to other devices.

  * Imposing controls on where you watch a program.
    Even if you are given permission to move a program
    to your laptop or other portable devices, "geography
    controls" may kick in and stop playback once you
    leave home or a particular locale. These
    restrictions may be enforced using tamper-proof GPS
    receivers built in to your devices. CPCM can also be
    used to block sending video to yourself over your
    own home network or the Internet, among other
    things.

  * Dictating how you get to share shows with your own
    family. CPCM can be used to examine, for instance,
    the frequency with which devices are connected to a
    personal network and determine whether your sharing
    is within an "Authorized Domain" Absurdly, DVB spent
    significant time arguing over what happens to a
    digital video in case of a divorce!

  * Breaking compatibility with your devices. You may
    have already invested in new high definition
    displays and receivers that rely on component analog
    connections or unrestricted digital outputs, but
    CPCM will allow the studios to arbitrarily block
    these connections. In other words, individual
    copyright holders can turn your gadgets into
    oversized paperweights. CPCM- restricted media will
    also be able to carry blacklists and revoke
    compatibility with particular devices that don't
    enforce Hollywood's restrictions sufficiently.

None of these restrictions need to be revealed in
advance--you won't even know ahead of time whether and
how you will be able to record and make use of
particular programs or devices. The restrictions can be
changed at the whim of the rights holder. It may be that
today you can record your favorite program and transfer
it to DVDs for long-term storage. But next week, you
could be prevented from recording or archiving to DVD.

Hollywood bills the intent of CPCM as "protect[ing]" and
"enab[ling] business models," but, more precisely, they
want to be able to curtail personal uses of television
content that may disrupt their current business models.
They also want to make you pay again and again to make
legitimate uses of lawfully-acquired digital television
content. For example, you've already paid for your cable
subscription, but instead of being able to "time-shift"
your favorite show to watch it later on the device of
your choice, content providers want the power to force
you to buy that show again on DVD or through another
delivery mechanism.

What about stopping "Internet piracy"? CPCM has nothing
to do with that -- it will fail to stop or even slow
mass unauthorized online distribution of copyrighted
content. No matter how elaborate the DRM, popular
content will inevitably be decrypted by some percentage
of users and then placed online, making it readily-
available to everyone else. 2 CPCM's uniquely fine-
grained restrictions are simply intended to make it more
capable of arbitrarily stopping legitimate personal
uses.

CPCM won't just harm consumers by limiting what they can
do with TV content. It will also choke off innovation
and competition by limiting who can enter the device
market. Innovators won't be able to implement a publicly
available specification to create a CPCM-compliant
device. Instead, they'll be forced to beg permission
from a CPCM licensing authority. Any novel technical
designs and features will have to be cleared through
this authority before they can be introduced in the
marketplace.

Large incumbents -- particularly those who participated
in DVB and could shape the compliance process -- might
be able to handle the transaction costs of clearing this
licensing authority. But for small firms and start-up
innovators, those costs might be a prohibitive barrier
to entry.

Open source tools will by definition be shut out of the
market. The success of software like the GNU/Linux
operating system and the Mozilla Firefox browsers
demonstrate how open source software can provide
benefits to users and meaningful competition in the
market. Yet, because DVB's standards demand that
manufacturers design their technologies to resist end-
user modification, open source innovation for digital
television will be blocked.

Beyond DVB: DRM Backed by Law

Hollywood also likes to say that CPCM is meant to
protect its legal rights. But national laws have never
given content providers such comprehensive control over
users and innovation.

The studios have a plan to effectively change that, too,
patterned explicitly after previous actions in the U.S.
DVB is developing technical standards that are intended
to serve as the basis for legal regulations that will
mandate device manufacturers to use CPCM. These
standards will up-end the current innovation environment
and require innovators to first seek permission from a
compliance body in order to create compatible devices.

DVB is currently revising the Common Interface (CI)
standard, which devices can rely on to receive pay TV
from many different providers. Today, CI makes sure that
consumers cannot get TV they haven't paid for, but it
places no restrictions on use after lawful, authorized
reception; by design, consumers can choose any device
they prefer, with whatever recording features they like
best. In contrast, CI version 2 will force devices to
respond to CPCM, and these devices will not be
compatible with tools that rely on CI version 1.

Once the revision is complete, DVB will likely seek
regulatory approval from the European Telecommunications
Standards Institute (ETSI). ETSI's approval process is
supposed to be a substantive examination, but because of
the deference given to DVB on technical issues, DVB-
proposed standards are generally approved as standards
with nothing more than a cosmetic review. Formal
adoption by ETSI will give DVB's anti-consumer standards
a patina of public legitimacy undeserved by its private
drafting process. The new CI standard could also become
the basis for an EU directive. 3

Meanwhile, free over-the-air TV is currently broadcast
unencrypted, but DVB is designing a way for it to be
encrypted by devices at the point of reception.
Broadcasts will include a DRM "flag" -- a set of data
that rides alongside the broadcasted video and can
signal whether content should be CPCM encrypted with a
set of standard restrictions. The default will be to
turn certain CPCM restrictions on.

Device manufacturers have no obligation to detect this
broadcast flag, so Hollywood may soon go to regulators
pushing for a mandate that bans non-compliant devices.
The United Nations' World Intellectual Property
Organization (WIPO) is currently presiding over
negotiations for a Broadcasting Treaty, which could
provide the legal framework for national technology
mandate laws. 4 Hollywood could also seek broadcast flag
mandates by lobbying individual Member States within the
EU. 5

Finally, anti-circumvention laws hamper any technology
creator or user from getting around DRM restrictions.
These laws make it illegal to manufacture or use tools
to circumvent the DRM without the copyright holders'
authorization, even if the circumvention allows a user
to exercise her legal rights. Thanks to two 1996 WIPO
treaties and American media companies' lobbying, these
laws already exist in many countries throughout the
world.

In combination, these laws, regulations, and standards
will expand copyright holders' control over the rights
that innovators and users have traditionally held under
national laws. To serve public policy purposes, every
copyright system contains limitations and exceptions to
the exclusive rights of authors and performers. Once DRM
is in place and backed by law, however, technology
creators and consumers will be hard pressed to exercise
those rights.

Conclusion: Public Interest, Consumer Rights Advocates
Must Fight Back

DVB bills itself as an "open" consortium, but it was set
up to do its work in secrecy and to preclude
participation from all relevant stakeholders interested
in consumers' rights or the public interest. First, the
DVB Steering Board asserts exclusive control over how
participants can publicly report on DVB committee
deliberations. Second, participation is incredibly
costly, requiring an annual 10,000 Euro membership fee
and then funding to attend meetings in different cities
around the world every month. Considering that a single
standard takes years to complete Ð CPCM has been in the
works for over seven years Ð the total cost of
participation in DVB can run to hundreds of thousands of
Euros. EFF was the lone public interest group in a room
full of large, established companies. 6

American studios' efforts at the regulatory level will
pose a grave danger to the public interest, yet they may
also provide an important opportunity. Public interest
and consumer rights advocates may get a critical chance
to have their voices heard and to convince policymakers
to resist Hollywood's demands.

Public officials are likely to hear Hollywood threaten
to withhold its content from national markets unless DRM
is in place. Similar arguments were made when color
television and VCRs were perceived as threats to
American studios' business models. Despite the concerns
expressed at the time, history has shown that the
industry is able to adapt and thrive by engaging with
new technology without additional government regulatory
intervention.

The risk of a Hollywood boycott of digital television is
highly speculative, but DVB's standards are a very real
threat to consumers and technology creators. If and when
American studios press for special regulatory protection
for DVB's DRM standards, public officials must be urged
to protect consumers' rights, sustain vibrant
competition and innovation, and call Hollywood's bluff.

For more information about DVB, contact us at
dvb AT eff.org and visit http://www.eff.org/IP/DVB.

The Electronic Frontier Foundation is an international
non-governmental organization with offices in Brussels,
Washington, Toronto, and San Francisco. Founded in 1990,
EFF is dedicated to defending consumer rights, freedom
of expression, privacy, and innovation. EFF has hundreds
of European donors and thousands of constituents
throughout Europe.

1 Other major content providers also are interested in
elements of CPCM, but the studios are the main driving
force behind devising DVB's DRM schemes.

2 For a further explication of this point, see Fred von
Lohmann, "Measuring the Digital Millennium Copyright Act
Against the Darknet: Implications for the Regulation of
Technological Protection Measures", 24 Loyola of Los
Angeles Entertainment Law Review 635 (2004), available
at
http://www.eff.org/IP/DMCA/DMCA_against_the_darknet.pdf.

3 Without changing CI or achieving further regulations,
Hollywood could choose to only license content to
providers who implement post-reception DRM. However, CI
currently has significant inertia in the market --
because many providers and users rely on it, Hollywood
would like to avoid this path. Certain European
Commission rules also require manufacturers to implement
CI, and thus altering this standard could speed along
the intrusion of DRM into pay TV devices. The US
equivalent in this domain is Hollywood's intrusion into
the creation of the 'plug and play' standards for
digital cable compatibility. With the Federal
Communication Commission's blessings, the CableCARD
system was allowed to include post- reception DRM. See
http://www.eff.org/IP/pnp.

4 See Protecting Digital Broadcast Content From
Unauthorized Redistribution Ð An Issue For All
Broadcasters, Presentation to the DVB World, Dublin,
Ireland, March 2005, by Spencer Stephens, North American
Broadcasters Association,
http://www.iab.ch/dvbworld2005.htm and
http://www.iab.ch/dvbworld2005/NABA%20DVB%20World%20Pres
entation.ppt Slide 19 explaining need for Broadcasting
Treaty TPM provisions.

5 EFF helped a coalition of groups mount a successful
legal challenge to an extremely similar mandate in the
US, see http://www.eff.org/IP/broadcastflag. Hollywood
continues to press for that mandate to be reinstated.

6 Our participation was made possible by a generous
grant from the MacArthur Foundation.