1. What’s this about?

The BBC has asked Ofcom for permission to scramble some of the data makes up its high-definition broadcasts. It is technically complex -- and possibly illegal -- to decode the broadcasts without descrambling this data.

As a condition of getting the BBC’s descrambling keys, anyone who wants to build a receiver will have to sign up to an offshore consortium called the Digital Transmission Licensing Agreement (DTLA). DTLA’s terms specify how devices must and must not be built, as dictated by big copyright holders.

The BBC is prohibited from scrambling its broadcasts (after all, those broadcasts are paid for with the licence fee), but it believes that it can circumvent this rule by scrambling some of the accompanying data. We don’t think the BBC should be allowed to do this.

2. Why is the BBC doing this?

The BBC says that some unspecified rightsholders have claimed that they will withhold some unspecified programmes from high-def broadcasts if they don’t get the right to design all the televisions, recorders, editing software, burners, etc, that can receive and store those programmes.

The BBC has not produced any specifics about which programmes won’t be carried on HD, nor has it shown any promises that programmes *will* be aired in HD if this comes to pass.

ORG thinks that the BBC has forgotten whose side it’s supposed to be on. As the public service broadcaster, it should be taking the public’s side in these negotiations. By acting as an agent for these nameless rightsholders, the BBC is asking Ofcom to reduce our televisions’ functionality instead of simply buying its programming from producers who support the public service remit.

3. What’s wrong with this?

The DTLA rules are not written with public service in mind. They contain numerous prohibitions on copying and reuse, and these prohibitions don’t line up with what is permitted under UK copyright laws, especially fair dealing.

More importantly, the DTLA rules prohibits one clearly lawful and important activity: namely, receiving BBC broadcasts on non-DTLA-certified equipment.

DTLA rules prohibit the creation of TV receivers (and recorders and so forth) that can be modified by their users. This means that popular free/open source DTV devices, such as those built on the powerful MythTV program, will never be certified for use with the BBC’s DTLA-restricted broadcasts. (We don’t know everything that’s restricted by DTLA, since some of its rules are bound by non-disclosure, meaning that the British public aren’t even allowed to know what rules Ofcom is proposing to put in place!)

There is a long and proud history of British inventors tinkering with receivers for public-service broadcasts, stretching right back to building a crystal set with your granddad in the shed. This technical opportunity to experiment with receivers continues today through the free/open software universe, which the BBC plans on excluding from its broadcasts in future.

The BBC has put forward a nebulous plan to convene a kind of court of appeals for people who want to re-use public TV in ways that are prohibited by DTLA, and this committee will use some unspecified procedure to grant or withhold permission for those uses.

ORG believes that this is inadequate. First, because the desire to re-use parts of a broadcast in a lawful manner doesn’t necessarily overlap with the capacity to plead your case to a BBC jury. Think for a moment of young children who want to capture programming for use in school projects -- they’re not likely to be able to take off school and travel to a hearing to plead their case, even if the class deadlines permit such a use.

Just as tinkering with hardware has helped Britain maintain its place as a nation of technical experts and innovators, the ability to tinker with creative works made Britain the centre of innovative musical, video and interactive genres. The BBC shouldn’t be taking steps to stop the next generation of young DJs, VJs, creators and producers from using licence-funded broadcasts to learn their art.

4. Don’t we need to do something about piracy?

Even if you believe that piracy is a problem for non-commercial public service broadcasters who receive funding from the licence fee, it’s clear that the BBC’s proposal won’t stop piracy.

The scrambling system that the BBC has proposed has already been broken by security researchers using publicly disclosed methods. Pirates will have no problem descrambling the BBC’s restricted signals (this is something even the BBC admits).

A similar scheme was proposed and struck down in the USA, but before it was struck down, the big broadcasters and rightsholders demanded even *more* restrictive regulations and mandates to protect the initial scrambling system. In other words, creating a weak and ineffective scrambling system only opens the door to demands to create stronger, more aggressive laws and regulations to protect it.

And of course, since the USA doesn’t have any scrambling on *it’s* broadcasts, anything that is aired first on American TV will show up on pirate sites that are perfectly accessible from Britain, meaning that pirates won’t even have to bother breaking the BBC’s scrambling system -- they’ll just get copies that come from American telly.

5. What about respecting copyright?

Copyright is the right to control copying, display, performance and re-use of your creations. It is *not* the right to design all the devices *capable* of copying and displaying your creative works. The idea that copyright includes “deviceright” -- the right to limit what devices can and can’t do -- isn’t part of copyright at all.