To: BPDG Members and Co-Chairs

From: Electronic Frontier Foundation

Re: Draft report of the Co-Chairs

EFF have taken the liberty of drafting the following, which we
respectfully request that the co-chairs adopt as their final
report, accepting dissenting opinions from other BPDG members for
attachment to this document as minority opinions. 

We would be interested in participating in a process to make such
minor revisions to this document as will be required for the
co-chairs to put their names to it, certifying that this document
is representative of the substantial consensus of the BPDG
members and participants.

Thank you.

--

Final Report of the Co-Chairs of the Broadcast Protection
Discussion Group

Having met at some length with many of the stakeholders in the
coming digital television revolution, the co-chairs are pleased
to announce that there is broad and substantial consensus among
film studios, consumer electronics companies, computer and
computer component vendors, software firms, representatives of
the free software and open source communities, civil liberties
and consumer rights groups, and broadcasters, satellite
television and cable companies on the following principles:

1. Digital Television is Beneficial and Desirable

It is the finding of the co-chairs and the substantive consensus
of the BPDG that digital television is beneficial and desirable,
for reasons listed below:

a) Digital television benefits the public

Digital television will provide an open platform upon which many
new and creative uses will be built. The protean flexibility of a
digital stream affords the digital television audience many
opportunities to innovate; repurposing, remixing, archiving,
sharing and tinkering with the over-the-air television signals
that travel on the airwaves that the public has made available to
broadcasters so that broadcasters may make pleasing and socially
beneficial use of them.

End-users of digital television will acquire and produce tools
that will allow them to actively participate in the production of
new and worthwhile forms of expression, sharing the fruits of
their imagination over a multiplicity of media, from modulated
ATSC streams flowing over the wire, over the air and over
satellites, to various digital video formats over the public
Internet, to shared and widely duplicated removable media. 

Digital television will carry forward the traditional role of
television in our free society of acting as a tool of
accountability. The public will record, archive and share digital
 campaign promises from our elected officials, newscasts covering
controversial events, and the spectrum of other noteworthy
cultural and political events that define us as a nation. The
very malleability of natively digital television makes it ideally
suited to the preservation for posterity of our collective
memory.

b) Digital television benefits technologists

As technologists turn their formidable imaginations to the
opportunities inherent in treating video as a bytestream to be
diced, spliced, mixed, tweaked, copied and customized like any
other, they will certainly produce entire new categories of
devices, software and transports. 

These devices, shaped by the forces of the market -- in the case
of commercial ventures -- and by the idiosyncratic agendas of
technologists -- in the case of free/open projects -- will build
upon one another, extending the range of devices vertically and
horizontally.  New technologies will interoperate, extending
one-another's capabilities, just as the television gave rise to
the VCR which gave rise to the camcorder, which gave rise to
Apple's iMovie video editing package. 

The economic potential of digital television is vast. These new
technologies, built for the purpose of tuning, demodulating,
remodulating, storing, distributing and manipulating ATSC
streams, will return substantial revenues to the commercial
technologists who build and sell them, and to those who make
accessories, from consumables such as removable media to
accessories such as hubs and other after-market add-ons.

c) Digital television benefits creators

Flexible, high-resolution, high-quality, interoperable, low-cost,
wide-spread digital television technology will provide artists
(filmmakers, animators, actors, writers, visual artists,
musicians and interactive artists) with a highly expressive
canvas upon which they may realize their imaginings.

As our cherished creators produce works for the digital screen
that intrigue our minds and stir our emotions, they will uncover
new means of promoting their artistic visions and realizing
compensation for their works. The freer the rein we give to our
artists and the more media we provide them to express themselves
in, the more means they will discover for securing financial and
artistic reward. 

d) Digital television benefits the entertainment industry

As with every other substantial technological innovation in media
history -- piano rolls, radio, motion pictures, television,
computers, VCRs, DVDs -- digital television will extend the reach
and hence the profitability of the entertainment industry.

The entertainment industry relishes the opportunity to take
maximum advantage of digital television's high-quality video and
audio reproduction as a means of providing more compelling
experiences to its audience.

The entertainment industry looks forward to new opportunities to
collaborate with its audience, and to discovering new business
models and opportunities made possible by an innovative
marketplace delivering ever-increasing capabilities to consumers.

e) Digital television benefits the public interest of the United
States

The precision with which digital television signals can be
broadcast will free up spectrum that today lies fallow as a
consequence of the inefficiencies of analog broadcasting
technology. This spectrum can be reclaimed and reused for new and
innovate applications that have been shut out by spectrum
scarcity.

2. Digital Television is Not Inevitable

It is the finding of the co-chairs and the substantive consensus
of the BPDG that digital television is far from inevitable, for
reasons listed below:

a) Digital television will obey Metcalfe's Law

The attractiveness of digital television will grow as an
exponential function of the number of digital television devices
in the market. More devices will create an incentive for more
programming; they will lower the cost of devices, they will
attract more tinkerers and inventors to extend their
capabilities. 

Digital television will only come into existence if a certain
critical mass of end-users can be persuaded to purchase and use
digital television devices.

b) Digital television must include those features that users want

It is fruitless for any group to set a "standard" that mandates
which features must and must not be included in digital
television devices. It is not the place of the government nor of
a private cartel to require that the market utilize this
technology and eschew that one.

That is the place of the market itself, which will engage in an
unmannered, chaotic process of unfettered development and
deployment that will produce a rich variety of technologies that
the general public will efficiently winnow down to a few
marketplace winners by voting with their wallets.

Mandates are only necessary to require those features that the
public does *not* wish to see in its devices. Features that are
desirable to the public will be included by vendors, or those
vendors will be supplanted by competitors who deliver these
features. The inclusion of undesirable features in digital
television technologies will slow uptake of digital television in
the market. 

Thus we have concluded that if features are required or forbidden
in digital television devices, that it will have the effect of
reducing the quality of those devices, and so weaken the chance
that digital television will achieve critical mass in the
marketplace.

c) Programming will come to digital television only if there are
people watching it

It is pointless to fret about which programming is available on
digital television before there is a substantial audience for
digital television. It is likewise pointless to fret about
whether programming will be available once the public adopts
digital television.

The powerful lesson of the Internet is that a new medium abhors a
vacuum. On the Internet, new players sprang into existence to
provide compelling information and entertainment that increased
the value of the network. The tremendous pressure and heat
generated by tens (then hundreds) of millions of users of the
network transformed talented amateurs into household names and
coalesced new entertainment giants out of the ether. 

Already, a new generation of entrepreneurs is creating and
distributing digital television programming, rather than waiting
for the government to shape the market to their liking, they are
embracing the opoprtnunintes an open digital television
marketplace affords.

3. Redistribution Control Technology is Unnecessary

a) Copyright law is sufficient

No list of all circumstances under which redistribution is lawful
can ever be produced, Consequently, no redistribution control
technology can ever be designed to prohibit nothing but unlawful
redistribution.

Fortunately, copyright law, as written by Congress and refined by
our courts, provides substantial and sufficient remedies for
those whose works are unlawfully redistributed. 

b) Redistribution control punishes the innocent

In considering what should be done to protect valid copyright
interests, we must also be sensitive to protecting the legitimate
rights of the public, including fair use, free expression, and
the freedom to understand and explore the technologies that they
lawfully acquire. 

Some approaches to redistribution control such as the pursuit and
arrest of those who flagrantly violate copyright laws are
well-tailored to attaching the problem without causing collateral
damage to public freedoms. 

4. Digital Television Must Be Assisted

It is the finding of the co-chairs and the substantive consensus
of the BPDG that digital television must be Assisted by Congress
and by the BPDG stakeholders, by means listed below:

a) No technology mandate must be permitted

While broadcasters, as privileged consumers of the public's
airwaves, may be regulated by the public and its government, no
such regulation is necessary or desirable for technologists.

In order for digital television to be broadly adopted,
technologists must be free to build any digital television device
that they believe will be accepted in the market. There is no
substitute for the absolute freedom of each player to choose
which standards he or she will adopt or eschew in a new device.

Congress must safeguard the right of technologists to freely
innovate by ensuring that no body creates mandatory standards for
digital television technology.

b) Tinkering must be encouraged

While some technologists may seek to secure a short-term
marketplace advantage through the deployment of proprietary
technologies, it is only through reverse-engineering of
marketplace successes that interoperability and competition can
be assured. Without interoperability and competition, the value
of each device is reduced.

It is crucial that Congress promote the right of technologists
and end-users to tinker with and innovate upon those devices in
the market. 

c) The public interest must be served

The public will not adopt digital television technology if there
is a widespread perception that the technical capabilities of
these devices have been curtailed by means of a mandate or a
back-room conspiracy among various players to eschew certain
useful features.

Congress must take action to quash anticompetitive conspiracies,
no matter that they operate in the guise of an inter-industry
consensus body. This will assure the public that no
self-interested cartel will be able to constrain the capabilities
of digital television technologies.

We hope that our discussions have been illuminating to the
general public, to the FCC, to the Congress of the United States,
and to other interested parties.

The Co-Chairs of the Broadcast Protection Discussion Group