Both formats are using AACS, and the final decision from AACS was to make the image constraint flag optional, leaving it at the discretion of the studio for each disc produced. I'm not sure how much better off we are with the studios deciding - it's better than a mandatory restriction, but it was the studios that wanted to "plug the analog hole" in the first place. If they start to see disc sales picking up beyond early adopters (and into a market segment that may not even be aware of the flag), they could start flipping that bit to "on" for new releases.