Shame on Ofcom, Double Shame on the BBC

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Readers with good memories may recall a little kerfuffle over an Ofcom consultation to slap DRM on the BBC's HD service:

if this scheme is adopted it is highly unlikely free software projects will be able to obtain the appropriate keys, for the simple reason that they are not structured in a way that allows them to enter into the appropriate legal agreements (not least because they couldn't keep them). Of course, it will probably be pretty trivial for people to crack the encryption scheme, thus ensuring that the law-abiding free software users are penalised, while those prepared to break the law are hardly bothered at all.

Rather interestingly, this “consultation” closed almost as soon as it opened: it was hard to resist the impression that it was being railroaded through. Fortunately, due in part to the prompt actions of Computerworld UK readers in submitting critical responses, Ofcom was forced to extend the consultation period, and then carry out a completely new consultation.

I was part of a small group that met up with some people from Ofcom to discuss our concerns. On the basis of that meeting, I am entirely unsurprised by the “results” of that “consultation”, announced today:

Based on consultation responses and our own assessment of the evidence Ofcom has decided to grant the BBC multiplex licence amendment to allow it to broadcast EPG data in a restricted format, subject to the two following conditions:

That the licence required by manufacturers to access broadcast programme data in their equipment is provided by the BBC on a charge free basis (as per the BBC proposal).

That the BBC is only able to restrict the availability of broadcast programme data using the licence amendment for the purposes of securing an effective content management framework on the HD Freeview platform.

Adding insult to injury is the following:

A large number of individual responses to the Consultation highlighted that 'open source' software developers would be unable to develop receivers that access HD EPG data if they had to take a licence from the BBC in order to access it. We do not fully share this view. The BBC proposals do not prohibit the use of open source software in receivers, but we recognise the proposal may introduce some restrictions on how it is used. We anticipate that any such restrictions will have a negligible impact on the mass market for HD Freeview receivers as many manufacturers do not use open source software and in cases where they do can opt for an open source licence which is compatible with the BBC's proposed licensing arrangements.

Eagle-eyed readers will of course spotted the contradiction in terms between “open source” and “the proposal may introduce some restrictions on how it is used”, which Ofcom either does not understand or simply doesn't care about – despite the “large number of individual responses” it received on the subject.

Just as bad is Ofcom's primary reason for letting BBC go against everything it has stood for as a public broadcaster:

In response to the Consultation the BBC, ITV and Channel 4 provided confidential details on the acquired HD content that would be affected if an effective content management framework was not provided on the DTT platform, including the need to 'blank out' some HD content. This evidence was supported by the views expressed by representatives of rights holders. Based on this information, and the increasing use of content management on other digital TV platforms, we have concluded that the BBC's proposal would widen the range of HD content available on the DTT platform, in particular high value film and drama content, and that this would bring positive benefits to citizens and consumers and also help ensure that the DTT platform is able to compete on similar terms with other digital TV platforms for HD content rights.

This is just extraordinary at so many levels. First, we have *secret* information – what on earth are they hiding? Secondly, that “secret” information is effectively just blackmail: the content companies would have us believe that without the blessing of the sacred DRM, they wouldn't provide any content – all that “high value film and drama content”. Except that as Cory Doctorow has pointed out, they made that same threat years ago, even using the same words:

you should have heard the copyright cartel! How they rattled their sabers and promised a boycott of HD that would destroy America's chances for an analogue switchoff. For example, the MPAA's CTO, Fritz Attaway, said that "high-value content will migrate away" from telly without DRM.

Viacom added: "[i]f a broadcast flag is not implemented and enforced by Summer 2003, Viacom's CBS Television Network will not provide any programming in high definition for the 2003-2004 television season."

One by one, the big entertainment companies – and sporting giants like the baseball and American football leagues – promised that without the Broadcast Flag, they would take their balls and go home.

So what happened? Did they make good on their threats? Did they go to their shareholders and explain that the reason they weren't broadcasting anything this year is because the government wouldn't let them control TVs?

No. They broadcast. They continue to broadcast today, with no DRM.

They were full of it. They did not make good on their threats. They didn't boycott.

They caved.

But this time it was Ofcom that caved. If the decision is not overturned (and I fear it won't be), it will give the content industry control over what people can do with the content they watch on the BBC. Shame on Oftel – and double shame on the BBC for betraying in this way the audience that has faithfully funded it for all these years.

Follow me @glynmoody on Twitter or identi.ca.

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