14 June 2010

Ofcom - Disgraceful and Pointless

I say that primarily because they've announced that they're happy to give the BBC the power to control which devices you can watch their transmissions on and even to delegate that decision to an unaccountable trade body.

This is going to be a significantly longer post then normal, but I think it's worthwhile given the issues involved. In January, Ofcom published a consultation in response to the BBC's application to amend their licence so that they could apply content management technology to their HD transmissions, which would allow them to restrict the ability to receive those transmissions to devices which had received their approval and which would follow their instructions with regard to copying and re-use of the material. Disgracefully, Ofcom has agreed to this.

Of course, the fact that a regulatory body has done something which I personally disagree with doesn't make it a disgraceful decision in itself. In this case, the two things which I think do make it a disgraceful decision are:
  1. The scheme completely violates the basis on which the BBC operates. The fact that the BBC is funded by a compulsory levy has been partly justified by the fact that it provides an unconstrained, free to air services. For broadcasts using future technologies, it seems that principle is being thrown out of the window. In spite of my generally market liberal principles, I've generally been relatively tolerant of the BBC, on the basis that, in a democracy, both electorate and elected need information and having a state broadcaster, in the area of news, at least, can serve a valuable purpose by supplying that information to a predefined editorial standard. However, if were moving to a situation where the BBC is no longer meaningfully free to air, I see no justification for it's continued existence in its current form. A BBC which wants to operate this way should not be licence fee funded. If the news aspect is capable of existing in an unencrypted form, then I think there is an argument for separating it and enabling it to do so, but the rest of the corporation should be privatised and left to fend for itself.
  2. In spite of the vast majority (running into hundreds) of responses being overwhelming negative, the response by Ofcom was almost wholly dismissive of any criticism of the BBC's proposed approach, in such a way that it looks like nothing more than one arm of the state doing what is wanted of it by another arm of the state, irrespective of what any of its obligations to the private individual may be.
With regard to the second point there were two aspects of Ofcom's detailed response that stood out, on the first skim through, as being particularly outrageous. The first related to the fact that proposed system would make it difficult or even impossible for people to exercise "fair dealing" exemptions to copyright:
Whilst we recognise that viewers may wish to record or copy material within the confines of the provisions of the CDPA, that legislation does not grant rights to copy material to viewers. Rather, it provides a defence to any action for copyright infringement. Viewers do not therefore have any right to copy any material broadcast on the HD DTT platform. In this context, it would not be appropriate for Ofcom to refuse to allow copy management on the basis of such a right.
This is, of course, an idiotic argument. By the same token, the law doesn't grant a specific right to watch the BBC, so using the same line of reasoning, Ofcom would have granted them the right to completely block transmissions as and when they felt like it, if that's what they'd asked for.

The point is not that people have a right to copy for fair dealing purposes, it is that they are currently able to copy for fair dealing purposes. In removing that ability, the proposal creates a negative impact on the viewer. Given that the basis on which Ofcom claimed to be carrying out the assessment was:
Our aim in assessing the BBC's proposed licence amendment has been to determine whether this change would deliver net benefits to citizens and consumers by ensuring they have access to the widest possible range of HD television content on DTT, whilst not unduly restricting their ability to make use of content or the range of receiver equipment available in the DTT receiver market.
In refusing to consider a negative impact on the consumer, they have put themselves in a position where they can't claim to have, in any meaningful way, calculated whether or not there is a net benefit.

The second aspect of the response which stood out as being outrageous was the response to this section:
Along with a small number of individual respondents, the RNIB opposed the BBC's proposal on the grounds that it would have a detrimental impact on partially sighted viewers. The RNIB asserted that a large number of receivers with special functionality for the partially sighted (for example audio description set top boxes) are produced as a result of innovations made by open source developers. The RNIB argued that the proposed licence amendment would restrict the use of open source software and therefore constrain innovation in this area. Additionally, the RNIB was concerned that small niche manufacturers that produce specialist equipment for the partially sighted may not be able to absorb the licensing costs associated with content management technology. The RNIB contended that this would result in a reduction in the availability of receivers with audio description functionality.
I agree with RNIB's point. In fact, I was one of that "small number of individual respondents" who Ofcom refer to. It is a serious concern. When there is a regulatory barrier introduced, it would be reasonable to expect it to impact most heavily on those benefiting least from economies of scale, chief amongst which would be those manufacturing equipment aimed specifically at those with disabilities.

Ofcom's response to that point, tacked on at the end of a comment about open source software, is so dismissive as to be offensive.
As discussed in the previous section, the evidence we have reviewed indicates that DTLA licensing does not preclude manufacturers from including open source software within products, although we recognise that manufacturers are required to prevent users from easily modifying or re-configuring the equipment such that the content management is circumvented (and that this will generally be achieved through the inclusion of proprietary elements within the receiver). We expect that the availability of these proprietary solutions based on open source software could allow the development of niche products, such as those of interest to the RNIB. We also note that audio description capability will be required to be included in all HD Freeview receiver products, which was not the case for standard definition receivers.
The comment about open source software is technically irrelevant to the significant issue regarding open source software, which is that the ability to amend the software will be significantly constrained. In terms of technology which is useful to those with disabilities, this is significant. On a computer running free and open source software and capable of receiving TV signals, the software can be amended to suit the specific needs of the end user. With the locked-down nature of the system approved by Ofcom, where the output must by definition be strictly controlled, that will not be possible. The end user will be constrained to use a device which works as defined by the manufacturer, which will in turn have to ensure the device works only in ways authorised by the BBC. The final comment about audio description is nothing more than an insulting attempt to patronise, by pointing out that a small amount of what is being taken away is being offered back.

Below, I've attached my original submission to Ofcom, should anybody be interested in my more detailed arguments, but the significant thing I've taken from this process is that neither Ofcom, nor the BBC, are fit to serve their claimed purpose.

MY RESPONSES

Question 1: Do you agree that copy management would broaden the range of HD content available on DTT and help secure its long term viability as a platform? :
No, in fact the opposite is more likely to be the case.

On the supply side, I see no evidence that copy management would broaden the range of content available. In the US, a similar proposal was made to mandate the use of a "broadcast flag" which would have enabled copy management, a proposal driven by claims made by content producers that without it, they would cease to supply content. The proposal was rejected, but that decision appears to have had no tangible negative impact. While it is to be expected that producers might like to have copy management in place, the idea that they would no longer supply content without it appears to have been a bluff. The principle would appear to apply even more strongly in the UK. The idea that producers would refuse to provide content to the largest broadcasting corporation in the world, solely because it didn't employ copy protection which would, in any case, be useless at stopping those determined to produce copies, is simply not credible.

On the demand side, previous evidence shows that whenever copy management is applied to a platform, it tends to drive people to other, less restrictive media. If the same content is available without copy management, either in an authorised or unauthorised form, which it almost certainly will, people will tend to prefer it to the unencumbered format.

As has been shown with failed attempts at imposing DRM on music, it is the removal of copy management which opens up the possibility of a platform becoming viable, not the imposition of it.
Question 2: Do you agree that the BBC's proposed multiplex licence amendment represents the most appropriate means for securing an effective content management system on HD DTT? :
No. There is an implication in the consultation that encrypting the EPG is somehow materially different to encrypting the whole stream and that the BBC's proposal somehow qualifies as being free-to-air, whereas encryption of the whole stream doesn't. I see no basis for this implication. The objective and the end result for both approaches is the same and as such, they deserve to be viewed as being equally bad.
Question 3: Do you agree with the proposed change to Condition 6 in the Multiplex B Licence? :
No.
Question 4: Do you agree that Multiplexes C and D should be granted a similar amendment to their Licences as Multiplex B?. :
No.
Question 5: Do you agree that the BBC's proposed approach for implementing content management would safeguard citizens and consumers legitimate use of HD content, and if not, what additional guarantees would be appropriate? :
No. Content management will impinge on fair dealing rights and no safeguards, no matter how strong or well intentioned, will prevent that. Of particular concern is the impact on the disabled. By creating a "locked-down" environment, where the only receivers available will be those created by approved manufacturers, under non-disclosure terms and incorporating consumer resistant features sufficient to make circumvention of the content management technology sufficiently onerous, it will become much harder for those with sensory or physical difficulties to adapt either their hardware or software to make it better suited to their needs, which could otherwise be achieved either by incorporating improved software or using non-standard devices combined with a receiver.
Question 6: Do you agree that the BBC's proposed choice of content management technologies will have only a negligible impact on the cost of HD DTT receivers and their interoperability with other HD consumer equipment? . :
No. By its very definition, the purpose of content management is to impede interoperability, so that content cannot be transferred to devices not produced by a manufacturer approved by the producer. This is also likely to stifle innovation.

The cost impact is debatable. It may end up being negligible, but it is also possible that receivers could become significantly more expensive if, for example, the uptake of receivers is reduced as a result of them being less attractive due to the incorporation of content management.

Where the impact is much more likely to be severe is in more specialist areas, such as, as addressed in the response to question 5, devices aimed at those with disabilities. The smaller market for such devices would make it much more likely that the cost of compliance with the content management requirements would be felt much more severely in their manufacture, resulting in such devices either becoming more expensive, or perhaps not manufactured at all. That situation would be made even worse by the fact that incorporating content management would make ordinary devices less easily adapted to the needs of users.
Question 7: Do stakeholders agree that the BBC's proposed Huffman Code licensing arrangements would have a negligible effect on the market for HD DTT receivers? :
No, they could potentially have a very severe impact. The need for a licence would inherently require non-disclosure of the look-up tables. The compliance issues surrounding such a requirement would present a barrier to entry into the market, impeding new entrants to the market and limiting the amount of competition which could occur.

Particularly noteworthy is the assertion that the licensing arrangements for the look-up tables would be on a non-discriminatory basis, which would almost certainly not be the case in practice. Almost certainly, large electronics manufacturers would be granted licences, but I would be astonished if the BBC were prepared to grant a licence to a lone electronics enthusiast looking to build his or her own receiver. The very nature of this kind of proposal is "security through obscurity" which relies on the information being available to as few people as possible. Non-discriminatory access terms would make the look-up tables available to anybody prepared to agree to the disclosure and use terms, which could result in them being so widely available as to be effectively useless.

If Ofcom wishes to answer this question effectively, it needs to demand that the BBC discloses the exact licensing terms that it would wish to use, so that everybody can see what "a royalty-free basis and on fair, reasonable and non-discriminatory terms" actually means and comment accordingly.
Question 8: Do the BBC's proposed content management states and their permitted use for different categories of HD content meet the requirements of other HD broadcasters on DTT? . :
I don't believe that the broadcasters have requirements in the sense implied by the question. I would not be surprised if some broadcasters wished to have a content management system, but that does not amount to a need for one, as evidenced by the existence of television for decades without such a system.
Question 9: Are there any issues that you consider Ofcom should take into account in assessing the BBC's proposal, that have not been addressed by this consultation?:
I have seen no evidence that HD content is materially any different to standard definition content, in terms of being reproduced and redistributed, yet the BBC's entire case seems to be based on an assumption that HD content inherently needs more restrictive technology attached to it. This makes little sense. HD content, which consists of more data, will take up much more memory space and bandwidth if redistributed over the internet than SD and will tend to be viewed on hardware which is less well suited to getting the full benefit of HD. If anything, SD broadcasts are much more vulnerable to illicit copying and redistribution, yet the absence of content management on the BBC's SD broadcasts has not resulted in its demise, which makes me very sceptical of the BBC's claimed benefits of content management on HD.

This proposal appears to be an opportunistic attempt to bypass the BBC's PSB and FTA principles under the cloak of a relatively minor shift in technology and I believe it should be rejected.

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