DECE – Watermark and Enhanced Robustness Proposal Implementation of Watermarks: DECE devices would support the Cinavia™ “audio watermark detection” (referred to below as “Watermark”; No Home Use Watermark with the DECE flag referred to below as “NHU Flag”) subject to an agreed phase in period under the following conditions and through the following steps:
Watermark Detection Parameters: The rules and parameters for watermark detection (e.g., false positive rates) shall be set such that legitimate consumers shall be minimally inconvenienced. The AACS rules may serve as a guideline.
HD Devices Only: Only Licensed HD Devices (compliant DECE HD profile Devices capable of rendering HD DECE Content downloads) will be obligated to detect the NHU Flag during playback (i.e., compliant DECE PD or SD profile Devices capable of playing non-DECE HD Content will not be obligated to detect the NHU Flag during playback). Per Section 6, a “Device” may be a closed-platform Device or a software media player.
Downloads ONLY: Licensed HD Devices will be required to respond to the NHU watermark during play back of downloaded Audiovisual Content only (i.e., there will be no requirement to respond during play back of streamed content.)
Audiovisual Content: means audiovisual content that qualifies as a “motion picture” pursuant to Section 101 of the United States Copyright Law (17 U.S.C. Section 101), as amended as of March 1, 2008 -- “audiovisual works consisting of a series of related images which, when shown in succession, impart a impression of motion, together with accompanying sounds, if any” -- whether in encrypted or unencrypted form, and that is primarily intended to be performed in a predetermined, continuous, sequential manner.
NHU Flag ONLY: Devices shall only respond to NHU Flag. For the purposes of this document, only Licensed HD Devices are bound by these obligations and are separated into one of the two following two classes:
Closed platform Devices (including, without limitation and for illustrative purposes, “closed bus”, embedded client devices with tamper-resistant hardware, such as current generation: (a) set top boxes, (b) cellular handsets, (c) Televisions, (d) DVD and Blu-ray players, and (e) games consoles). Closed platform Devices may perform the watermark detection in any manner that screens for the Watermark as set forth in the Adopters requirements below but for the avoidance of doubt may screen for the Watermark in the application licensed to play back DECE HD Content or system layer, e.g. licensed DECE HD “widget” or application running on a TV shall screen for the watermark. However, a non-DECE “widget” or application running on same TV shall not be obligated to screen for the watermark. For the avoidance of doubt, in such instance neither the DRM, or the Operating System nor the Hardware shall be responsible for detecting responding to the NHU Flag.
Software Media Players, licensed to play back DECE HD Content, functioning on open platform devices (including, without limitation, personal computers and other devices with a user-accessible bus). For the avoidance of doubt, neither the DRM, or the Operating System nor the Hardware shall be responsible for detecting responding to the NHU Flag.
Device Constraints: Licensed HD Devices qualify for exceptions to the Watermark detection as follows:
Licensed HD Devices for which Watermark detection would impose an undue burden due to computing or power resource limitations [TBD] shall be subject to a grandfathered exemption from the Watermark detection requirement for Licensed HD Devices produced less than 18 months after the Detection Date. If the undue burden related to computing or power resource limitations remains at the end of such exemption period, then a further extension of a reasonable exemption period shall be requested from the MC Content Providers and such request shall not be unreasonably denied.
Devices with an internal screen of  inches or less that has no HD video outputs (“Portable/Mobile Devices”) shall be subject to the following exceptions to the watermark detection requirement:
Portable/Mobile Devices which only render HD DECE content in Standard Definition are not required to screen for the Watermark.
Portable/Mobile Devices can render HD content without screening for the Watermark if that Content has been attested to (e.g. hashed and signed with a DECE signature) by a DECE Retailer or DSP or in/by another DECE-licensed Device.
Market Leaders Triggered “Phase-in” Period: will be the 30 month period following the date (“Phase-In Trigger”) on which digital distribution service providers with collective market share based on revenue equal to or greater than 35% of Overall EST and at least 75% of HD EST (the “Market Leaders”) are implementing and enforcing Watermark Detection (as defined in 8.3, below) for HD EST movie content delivered by such service providers and none of the cession triggers have been met (“Minimum Major Market Usage”). At the end of the Phase-In period (“Detection Date”) Licensed HD Devices are required to respond to the NHU Flag. If the Phase-In period does not commence within 42 months of full-featured consumer DECE launch (to be more clearly defined), then there shall be no detection requirement thereafter. For avoidance of doubt, the Phase-In period commences upon the existence of Major Market Usage. [How often the “Minimum Major Market Usage” measured and over what time period needs to be defined.]
Overall EST Digital Distribution Market(“Overall EST”) shall mean the total aggregated global sales of professional video content in all resolutions made available via online resellers for distribution to end consumers solely via electronic download delivery mechanisms and not via any physical distribution media. For the avoidance of doubt, Overall EST shall not include any downloadable delivery offer made in conjunction with the physical sale of, or bundled with, a physical distribution form such as, but not limited to, DVD, Blu-ray, Flash media.
EST HD Digital Distribution Market (“EST HD”) shall mean the total aggregated global sales of professional video content in HD resolutions (720p or higher) made available via online resellers for distribution to end consumers solely via electronic download delivery mechanisms and not via any physical distribution media. For the avoidance of doubt, EST HD shall not include any downloadable delivery offer made in conjunction with the physical sale of, or bundled with, a physical distribution form such as, but not limited to, DVD, Blu-ray, Flash media.
Watermark Detection. Watermark Detection shall mean retailers, offering HD EST content for consumer downloads, enforce compliance with license terms and/or compliance rules related to watermark enforcement rules, in effect at the Detection Date, such that [TBD%] or more of [associated] playback devices remain in compliance.
Market Leader Adjustment: In the event a significant portion of the Minimum Major Market Usage exempts certain devices, categories of devices or delivery mechanisms from a Watermark detection obligation, Licensed HD Devices shall automatically be entitled to those same exemptions in lieu of any similar exemptions provided in this document. Except as provided in the preceding sentence, the exemptions for certain devices, categories of devices, or delivery mechanisms provided in this document shall control.
WM Cessation Triggers (during Phase-In and Going forward):
If, after the Phase-in (above) has been triggered,
Minimum Major Market Usage declines by 10% or more; or
DECE MC Content Participants (“Qualified Content Participants”) embed a Watermark collectively in less than [TBD%] of content they produce and release for theatrical distribution for which they have reasonable control over watermark embedding and the like; or
Watermark licensing terms and conditions are unreasonable; or
DECE has not reached a sufficient level of adoption [definition TBD]; or
Two or more Qualified Content Participants, license “current” HD content to any service provider without requiring the service to support Watermark enforcement in a manner consistent with the DECE obligations; or
IP Infringement Issue consistent with AACS; or
Use of watermark detection is deemed illegal in any two major [TBD] distribution territories; or
Watermark licensing terms and conditions become unreasonable,
then Watermark detection in DECE will thereafter no longer be required.
Market Circumvention: If the Watermark is significantly hacked [definition TBD], i.e., if 30% of titles currently in theatrical release distributed with the Watermark are available through illegitimate sources with commercial quality audio without the Watermark, or there is widespread availability of circumvention tools that remove the Watermark such that current detectors cannot detect the Watermark then detection will thereafter no longer be required. [OK provided reasonable notice and cure period is added.]
Anti-Lobbying: DECE MC content providers to acknowledge that the fact that DECE has agreed to watermark is non-precedential for any other purpose including watermark legislation or regulation. DECE MC content providers and other DECE MC companies (“parties”) agree to prepare a joint presentation suitable for submission and presentation to representatives of relevant government bodies in major markets, including Members of Congress in the United States, representatives of the European Commission in the European Union and appropriate government representatives from any other country or jurisdiction as may be determined by the Management Committee (“Government Representatives”); and to conduct joint briefing of the Government Representatives regarding the DECE Ecosystem and the Watermark requirement. The presentation and briefing efforts will include the following key messages: (a) DECE Watermark obligations have been agreed to in the context of a commercially-negotiated business agreement; and, (b) assuming the DECE Watermark obligations are triggered and implemented, the parties do not intend to seek nor to support government actions which would mandate or broaden screening obligations for the DECE Watermark. DECE MC Members agree that on or before [April 30, 2011], they will prepare a version of the joint presentation suitable for publication or presentation to the Government Representatives. Material Breach of the above obligations by two or more DECE MC content providers shall cause the watermark detection obligation to cease.
Consumer Backlash: Qualified Content Participants and CE/IT Implementers to work together to ameliorate consumer backlash and any resulting liability. In the event that, despite such efforts, such consumer backlash [TBD, e.g., consumer support demands, claims, and legal actions] meets [Significant Threshold – to be defined], watermark detection will thereafter no longer be required.
Implementation and Licensing Terms: Qualified Content Participants shall either cover or offset the DECE incremental watermark licensing and implementation costs through a fixed (i.e., capped) amount of money [$XX million] that will be placed in a fund to be distributed to “eligible” [TBD] DECE Implementers, i.e., those required to implement the Watermark detection capability as of the Detection Date. The mechanism for distribution will be determined later. The requirement to put money into this Fund shall not accrue until the Phase-In Trigger is reached. If funds are not received within 3 months after the Phase-In Trigger is reached, then Watermark detection shall not be required.
Detection obligation shall be contingent upon DECE successfully negotiating with Verance for the DECE bit in the Watermark prior to the commencement of the embedding.
Indemnity: MC Content Providers shall hold harmless and indemnify DECE and DECE licensees from third party suit, claim, proceeding (including in connection with claims/actions relating to IPR and consumer backlash) for any damages (including costs, attorney’s fees, and related claims processing and litigation expense). [Subject to a reasonable cap TBD.]
Consumer Response Center: Qualified Content Participants shall ensure provision of a satisfactory [TBD] consumer complaint/technical support resolution center for all territories where Watermark detection is deployed. Such provision shall be operational by the Detection Date. Note that an informative website is not sufficient for this.
Marketing and other Commitments: Content Providers will work to place DECE in the market via the following marketing initiatives:
Content Provider funded DECE branding/marketing initiative and commitment to launch DECE brand/business:
Total Marketing commitment (Title-specific and DECE Brand) = [TBD] over the period between finalization of hardware robustness requirements and [12/31/2012]. This figure to be proportionally increased if Disney joins DECE.
Of which, [TBD] for DECE Brand launch via dedicated campaign(s); timing of spend during that period guided by marketing advisors, but at least 50% invested around consumer launch, subject to finalization of hardware robustness requirements. [Note that leaving “hardware” here and in the provision above is acceptable provided the work plan language is more generic as provided below]
The remainder [TBD] to be Title-specific marketing (built into or incorporated with Title specific marketing programs); to qualify, marketing spend must be for titles that have been licensed to multiple DECE Retailers for HD distribution.
DECE Content Providers will propose to and work with AACSLA to get the DECE ecosystem and/or any not-yet-approved DECE DRMs to be approved as an AACS MCOT.
DECE Content Provider marketing will position DECE as favorably as possible as a “market leader” ecosystem and delivery service for digital content, relative to other competing platforms and content offerings.
Align DECE with Applicable AACS Terms Embedding Rules: Content Participants may only embed the Watermark in theatrical content that will be published into the DECE ecosystem, substantially similar to AACS rules (see below for detailed excerpt).
No Home Use Mark means the Audio Watermark state designated as “No Home Use” in the applicable Cinavia Specification, where the presence of the state signals that the Audiovisual Content should not be encountered in the consumer home environment (e.g., pre-release or working prints of a theatrical release, theatrical release prints, airline and non-theatrical public venue releases such as to cruise ships, military bases, etc.)
DECE No Home Use State means information specified in the Cinavia Specification and contained in the Audio Watermark that combines the DECE Flag indicating the DECE AWM Compliant Content state with the Copy Management Field indicating the No Home Use state (as these terms are defined in the Cinavia Specifications), which designates particular Audiovisual Content as being subject to No Home Use Mark Enforcement Action screening and enforcement requirements and triggering a No Home Use Mark Enforcement Action in accordance with the requirements of these Compliance Rules and the Cinavia Specifications.
No Home Use Mark Enforcement Trigger Notice means information conveyed by an Audio Watermark Detector to the associated Licensed HD Device indicating that the prerequisites for taking a No Home Use Mark Enforcement Action have been met. For the avoidance of doubt, as set forth more fully in those portions of the Cinavia Specifications related to “default enforcement,” a determination that the No Home Use Mark is present but that the Audio Watermark Detector has evidence that the DECE Flag may be present but cannot confirm such presence shall be considered to meet the prerequisites for taking a No Home Use Mark Enforcement Action if the No Home Use Mark is determined to be present in 10 continuous minutes of screened Audiovisual Content and the presence or absence of the DECE Flag remains unconfirmed.
Compliance and Robustness Rules: Content Participants and Providers May embed, or have embedded, the DECE No Home Use State in versions of Audiovisual Content that should not be encountered in the consumer home environment (e.g., pre-release or working prints of a theatrical release, theatrical release prints, airline and non-theatrical public venue releases such as to cruise ships, military bases, etc.).
If a Content Participant embeds the DECE No Home Use State in a given Theatrical Release (commercially available to consumers in a cinema or theater on a basis other than for test purposes) in any country, then Content Participant must within fourteen (14) months release a substantially similar version (which may, for example, be a director’s cut, or have a changed aspect ratio) as DECE Content distributed online (“Substantially Similar DECE Version”) in such country of first Theatrical Release or the United States, as determined by Content Participant.
If Content Participant embeds the DECE No Home Use State in a given Theatrical Release of Digital Entertainment Content in any country of the world, and Content Participant undertakes a Theatrical Release of such Content in the United States on greater than one hundred (100) screens, then, within 14 months, Content Participant shall release a Substantially Similar DECE Version in the United States.
Where Content Participant does not itself have online distribution rights necessary to comply with the above requirement in the United States or in such country of Theatrical Release, Content Participant may satisfy its obligations by obtaining an understanding with a party having such rights that such party will comply with the requirements.
In the event of unusual circumstances that arise in the 14 months after Theatrical Release (e.g., commercial failure of the Theatrical Release or intellectual property rights issues that prevent publication of the Substantially Similar DECE Version), Content Participant shall be entitled to petition the DECE LLC for an exception.
If distributed online, such Audiovisual Content must include metadata that the embedded Audiovisual Content is not enabled for consumer home use, and encoded or formatted (by means other than the Watermark) so that it does not play back in normal consumer home use.
Content Producers (Encoding) May only embed the No Home Use Mark in accordance with instructions by a Content Participant or Content Provider.
Adopters Licensed HD Devices become subject to screening and enforcement obligations at expiration of the thirty month Phase-in Period with a reasonable sell-off period TBD.
Post-sunrise, Licensed HD Devices must screen for the Cinavia Watermark when accessing content for playback.
Screening must take place according to the Cinavia Specifications using either intermittent or continuous modes.
Screening applies to the audio portion of the content.
If the Watermark Detector associated with that Licensed HD Device sends a No Home Use Mark Enforcement Trigger Notice, the Product must take a DECE No Home Use Mark Enforcement Action.
the Action must be initiated within one (1) second.
in doing so, the Licensed HD Device must not provide any message or other direction to a consumer with respect to a Content Participant or Content Provider without the written permission of the particular Content Participant or Content Provider in relation to the specific work protected.
In the case of access for playback, the Enforcement Action is:
the stoppage of playback of such Audiovisual Content, such that further playback of such content requires that the user restart playback from the beginning of the content; and
display of a written message stating either “Playback stopped. The content being played is protected by Cinavia and is not authorized for playback on this device. For more information, see http://www.cinavia.com. Message Code 1” or “Cinavia playback restriction (1)” or a message with substantially the same meaning
provided that the Cinavia website URL (or an alternative Cinavia website URL that is established by Verance Corporation as applicable to a particular country or region) and message code number are either included without change in the message, or provided in the written operating instructions provided with the Licensed HD Device;
The message must be prominent clear, and legible; and remain present until a subsequent user input is received or for no less than 15 seconds
The message must not direct consumers to any party or address other than the Adopter itself, the Cinavia website URL as stated above, or a mail address provided expressly for this purpose by Verance Corporation, without the explicit written permission of that party nor state or indicate to the consumer that DECE, Verance Corporation, Content Participants or Content Providers (in general or by specific name) are responsible for the enforcement action taken by the Licensed HD Device; and
Adopter must comply with consumer notice requirements (whether national, state, federal, local or other) that may be applicable, if any, to sale or distribution of Adopter’s Licensed Products, because of the implementation of DECE Technology in such products.
Adopter is prohibited from distributing, or knowingly cooperate in distributing, a Licensed HD Device (or final consumer product into which such Licensed HD Device is incorporated) which is configured, as part of its standard user experience for the purpose of automating or otherwise directly facilitating the bypassing or avoidance of performance of these Watermark Requirements. Adopter agrees not to provide specific instructions for, or otherwise knowingly participate in, such configuration of such Licensed HD Device (or final consumer product into which such Licensed HD Device is incorporated) following its distribution, or advertise or provide specific instructions for use. If Adopter licenses its Licensed HD Device for incorporation in final consumer products made by third parties, Adopter shall use reasonable efforts to require such third parties to comply with the same restrictions.
Enhanced Robustness: Within the next 30 days, develop a committed work plan for enhanced robustness (including, for example, hardware root of trust) based on principles that (a) resolution is a critical work item, to be completed within [TBD] months, but that (b) resolution is not a gating item for full B to C launch and (c) time before launch to discuss this will be balanced with the need to complete launch-specific items. Note that the Marketing Commitments in Section 17 are tied to the finalization of “hardware” robustness requirements.