[FAQs]
MPAA FAQ on Broadcast Flag

The MPAA published a FAQ on the broadcast flag. Our detailed comments below.

Q: What is a broadcast flag?

MPAA answer: The broadcast flag is a sequence of digital bits embedded in a television program that signals that the program must be protected from unauthorized redistribution. It does not distort the viewed picture in any way. Implementation of this broadcast flag will permit digital TV stations to obtain high value content and assure consumers a continued source of attractive, free, over-the-air programming without limiting the consumers ability to make personal copies.

EFF comment: Digital TV stations can already obtain "high value content" -- it's only the Hollywood movie studios which are declining to license their movies for digital TV broadcast. That's the studios' choice, and that's the studios' right. EFF does not believe that the studios have to let their movies be broadcast on digital TV if they don't want to. However, the studios are asking the public, and Congress, to change the way all digital TVs work in order to make digital TV more attractive to Hollywood. That's not necessarily a good idea, especially because there are many content providers -- like HDNet and other TV networks -- who are perfectly happy with the way digital TV works right now.

Contrary to the assertion in November that "all copyright owners" want the broadcast flag to be required, only the 7 MPAA member studios have said in public that they want this to happen. Those 7 companies certainly hold many copyrights, but they're far from the only producers of movies or TV programming.

Q: Are digital TV programs any different from what I see on my TV now?

MPAA answer: Much like the difference between audio cassettes and CDs or between VHS tapes and DVDs, digital television broadcasts in conjunction with new digital television sets will provide a much higher quality of picture and sound to consumers.

Q: What is the BPDG?

MPAA answer: The Broadcast Protection Discussion Group is a working group comprised of a large number of content providers, television broadcasters, consumer electronics manufacturers, Information Technology companies, interested individuals and consumer activists. The group was formed specifically for the purpose of evaluating the suitability of the broadcast flag for protecting DTV content and to determine whether there was substantial support for the flag. The group completed its mission with the release of the BPDG Report.

EFF comment: The main body of the proposal was drafted in a private (closed and secret) negotiation between 7 Hollywood movie studios, 5 electronics companies, and 1 computer trade association. (Other entities did have input, but were not a part of the core negotiations.) This proposal was discussed by various organizations and received partial support from a few dozen other companies. It's worth noting that all consumer advocates -- and several large electronics manufacturers -- broadly dissented from the proposal. In addition, watermark vendors who participated in the discussion continued to insist that the broadcast flag mechanism was technically ineffective.

Q: Who created the "broadcast flag?"

MPAA answer: The Broadcast Flag was created by the Advanced Television Systems Committee (ATSC), which is the standards-setting organization that developed the technical specifications for digital television in the U.S.

EFF comment: The broadcast flag was created by Fox, and subsequently ratified by ATSC as an optional part of ATSC's standards. (ATSC did not create any obligation for manufacturers to respond to the broadcast flag in any way.)

Q: The Report stated that the broadcast flag received broad consensus. How can that be possible when they were so many dissents?

MPAA answer: Broad consensus was reached on the "broadcast flag" descriptor and most issues relating to compliance and robustness. There was near unanimous agreement on the broadcast flag descriptor itself. There were a few dissenting views regarding some compliance and robustness recommendations, but of some 70 organizations that participated in the BPDG, only some 14 submitted dissenting comments on one or more issues. Of these 14 dissenters, six were self-styled "consumer" groups that appear to be opposed in principle to any restraints whatsoever on the reproduction and redistribution of content.

EFF comment: Most manufacturers of "Covered Products" did not participate in the discussion, and most of the "70 organizations" do not produce "Covered Products". To put this another way, most of these 70 organizations are not the manufacturers or consumers who would be most directly affected by the BPDG's rules! (For example, most of the makers of digital TV tuner cards were not consulted, although their current products would be illegal under a government mandate based on the BPDG's rules.)

Many organizations which "participated" never made any statements of any kind during the discussions. Most of the 70 organizations did not say specifically whether they approved or disapproved of the BPDG report's conclusions.

It is true that most of the commercial participants in BPDG did not raise specific objections. Those objecting, however, include some of the largest commercial manufacturers of television equipment, and all of the consumer advocates who submitted comments.

The MPAA didn't question the bona fides of "consumer groups" when it insisted that "consumer groups" or "consumer activists" participated in the BPDG discussion. (See MPAA's answer to "What is the BPDG?".) It has been difficult so far to find any consumer advocates familiar with the BPDG report who would be prepared to endorse its content.

Consumer groups certainly do not oppose copyright protection and generally recognize that copyright can be important to the production of creative works. No participant in BPDG suggested that enforcement of copyright is wrong. However, consumer advocates participating in the BPDG do oppose efforts to force technologists to produce less-functional products, just as consumer advocates opposed the MPAA's effort to restrict the public's access to the video-cassette recorder.

Q: When will the broadcast flag be implemented?

MPAA answer: The broadcast flag will be successfully implemented once the suppliers of computer and electronics systems that receive broadcast television signals incorporate the technical requirements of the flag into their products. Full implementation is expected to require a legislative and/or regulatory mandate.

EFF comment: A government mandate would be required because manufacturers know that consumers prefer today's fully-functional digital TV equipment to the less-functional equipment which would be required under the Compliance and Robustness Rules. In addition, today's equipment is less expensive and can interoperate with a greater variety of hardware and software. Many manufacturers will only make more expensive, less useful "Compliant" equipment if they are forced to. EFF and other organizations oppose such a mandate.

Q: Are all TV programs going to be flagged?

MPAA answer: No. The broadcasters that transmit the programming will set the broadcast flag as "on or off" based on private contractual agreements with content providers. Content providers can choose, on a program-by-program basis, whether the flag will be turned on.

Q: When the broadcast flag is implemented, can I record any TV program with my existing digital player/recorder and watch it later at more convenient time?

MPAA answer: Yes. If you own an early model digital player/recorder, you will be able to record and playback time-shifted digital recordings of flagged broadcasts. These digital recordings will also play on legacy DVD players. However, when Broadcast Flag-compliant DTV receivers are introduced in the marketplace, their recordings will only play on other compliant players and not on older (legacy) devices. Of course, you can still record and playback digital programs with any existing analog videocassettes recorders/players. The broadcast flag does not affect what you have been able to do in the analog world.

EFF comment: This answer confirms that "Compliant" devices produced under the BPDG-proposed rules are less capable than current-generation devices.

The MPAA suggests that use of analog recorders is unaffected by this proposal, which is correct, but not the whole story. The MPAA has proposed broad legal restrictions on analog recorders which would limit their ability to record copyrighted works. Those restrictions are not a part of the BPDG proposal, but they are certainly a part of the MPAA's agenda.

Q: Can I record broadcast digital TV programs to my PVR (personal video recorders) such as TiVo?

MPAA answer: Yes, in dedicated PVRs with no digital outputs, such as TiVo. However, digital TV tuner cards in Personal Computers using PVR software will need to insure that any recordings of flagged TV programs on to the PCs hard drive are securely protected to prevent unauthorized redistribution to the Internet.

EFF comment: This restriction (which is not part of current-generation digital TV tuner cards) creates significant "collateral damage" to home recording rights and innovation. For example, it effectively means that digital TV content can only be viewed with "approved" software, instead of the literally hundreds of video recording, editing, and playing applications available today. It also means that open source software will not be able to record or play back "marked" digital TV broadcasts. Hollywood studios have long tried to prevent open source software from playing DVD movies, and now they are trying to apply the same restrictions to open source software for watching TV.

In addition, as the electronics company Philips pointed out, it is currently possible to record digital TV broadcasts onto a recordable DVD disc. That DVD can then be played back with an ordinary DVD player. Under the BPDG rules, this would not be possible.

Q: Can I record digital terrestrial TV programs off my satellite dish? Cable?

MPAA answer: Yes, because Satellite and cable services use a proprietary conditional access system to scramble all of their program channels, including retransmissions of digital terrestrial TV broadcasts, they may be obligated, through private rebroadcast contracts, to trigger the same protection from unauthorized redistribution for content as designated, or not, by the flag.

EFF comment: Proprietary conditional access systems can be, and often are, even more restrictive than the BPDG rules. For example, a proprietary conditional access system can potentially forbid all recording and time-shifting of any kind.

Q: Can I make a back-up copy of that program for my library?

MPAA answer: Yes.

EFF comment: Today, you can use the hardware or software of your choice to make a back-up copy. Under the BPDG proposal, you can only use hardware or software which meets criteria set by Hollywood studios, even if no such hardware or software has the features you want. You are not permitted to play back any of your recorded copies using products Hollywood studios disfavor. It might also happen that a particular product does not have "approved" recording or backup capabilities, even though that product is otherwise technically capable of making recordings and backups. (DVD recorders, mentioned above, are a good example of this -- the Hollywood studios don't want to let anybody back up digital TV broadcasts on DVD, even though this is possible today.)

Q: Does "broadcast flag" prevent digital copying?

MPAA answer: No. The broadcast flag is only used to prevent unauthorized redistribution of copyrighted content, not prohibit digital copying. But copies made by future digital recorders that comply with the broadcast flag will not be playable on legacy playback devices and consumers will still be able to tape the digital broadcasts for traditional time-shifting uses with analog recorders such as VHS

EFF comment: This answer may express the intent of the broadcast flag proposal. However, this answer largely ignores the "collateral damage" resulting from the proposal. A few examples of such "collateral damage" are discussed above, and there are many others.

Q: Some people say the motion picture and other content industries are simply trying to limit my freedom to do what I want with media I obtain over the air. Is this true?

MPAA answer: Absolutely not. The only intent of the broadcast flag is to restrict the unauthorized redistribution of broadcast content in order to insure that high value content will be made available to consumers over free TV and not confined to subscription services. The broadcast flag will in no way interfere with your personal enjoyment of television programming.

EFF comment: As above, the MPAA seem uninterested in talking about "collateral damage" or the costs to end-users which might result from the implementation of this proposal. "The broadcast flag will in no way interface" with what you want to do only if you do it with a Hollywood-approved technology -- and only if it can be done with a Hollywood-approved technology. As consumer advocate Joe Kraus observed, many things (like e-mailing a short video clip to a family member) can't be done with any Hollywood-approved technology. That limitation is "collateral damage", not necessarily a deliberate design. But it is still a very real limitation.

Q: I know people offer Buffy the Vampire Slayer and other programs on the Internet now. Is this illegal? Why?

MPAA answer: Yes, it is illegal. Current laws state that redistribution of copyrighted materials without express permission from the copyright holder is illegal. Buffy is a copyrighted program that 20^th Century Fox produces and UPN broadcasts for its audiences personal use and have not authorized the redistribution of their programming via the Internet. If unauthorized copies of programs are widely available on the Internet they cannot be sold in ancillary markets and the owners cannot cover the costs of protection.

EFF comment: The MPAA is correct that copyright infringement is illegal. It may be worth observing that it is not always easy to predict the economic effects of illegal copying in detail. For example, the MPAA predicted 20 years ago that home copying on VCRs (which studios insisted was illegal) would destroy film revenues. This prediction was supported by many MPAA studies, but turned out to be incorrect in practice.

Q: Does the broadcast flag stifle innovation in technologies like broadband?

MPAA answer: On the contrary, protecting content, broadcast or otherwise, will spur the availability of high definition content and thus spur innovation for the systems, devices and services needed to deliver and support them in a broadband environment.

EFF comment: A government mandate requiring a certain technology tends to spur investment in that particular technology, at the expense of other technologies which are forbidden. There is no doubt that the BPDG rules would result in the development of certain technologies, but other technologies would be "off-limits". The threats to innovation posed by controlling technologies which someone might use to infringe copyrights are real and well-known. (History is full of examples of useful new technology which would have been stymied if anxious copyright holders had had their way.)

One example of innovation threatened by the BPDG rules is GNU Radio, an open source software defined radio implementation which allows digital TV signals to be interpreted by software. Because this software can receive digital TV signals, it might qualify as a "Covered Product", but because it's designed to be modified by users, it isn't "Compliant".

To take another example, the components a hobbyist or experimenter would need to develop his or her own PVR or other video-recording device are sold openly today, but would probably be restricted from public sale by the BPDG's rules.

Q: Even if the motion picture and other industries come up with a system to protect this content with a broadcast flag, the security technology will just be broken into and made worthless in a very short time. Given that, whats the point?

MPAA answer: It is unfortunate that some people may attempt to illegally hack or break into this security system. However, even if a few are successful, the flag will not be worthless. Most people are honest and will not attempt to circumvent the flag. We are hopeful that the broadcast flag will enable content providers to release more of their programming in HDTV format and drive the market forward providing new options for consumers. Consumers should not lose out just because there is threat against the technology.

EFF comment: It is a myth that technological content-control systems are only about "keeping honest people honest". These systems routinely stifle legitimate, legal uses, as well as illegal uses. DVD users, for example, see that the MPAA-designed "Regional Playback Control" ("region code") system prevents them from playing legally-purchased import DVDs. There is nothing illegal about playing import DVDs, but technology deployed in the name of "protecting copyright" routinely restricts it.

Since the BPDG rules are very broad (forbidding user-serviceable TVs, for example, even if they do not ship with any recording capability), there is no reason to assume that everyone trying to "circumvent the flag" has an illegal purpose in mind.

More to the point, however, the MPAA knows that the broadcast flag is technologically an extraordinary weak measure. It's tantamount to putting the line "DO NOT REDISTRIBUTE THIS" at the top of an e-mail message (and then demanding that everyone's e-mail software honor that request). Professional computer security experts agree that the broadcast flag measure is technologically weak. The MPAA is aware of this inadequacy, because it has been pointed out repeatedly by many BPDG participants, journalists, and computer security experts.

However, the MPAA has proposed that some of the weakness of the proposal can be dealt with by subsequent legislation restricting analog recording devices. The public should be aware that this kind of "follow-on" regulation is absolutely necessary in order for the BPDG proposal to be technically effective at controlling Internet redistribution of movies broadcast on digital TV. Very few people believe that the BPDG proposal, taken in isolation, can be effective.