French Not So Sensible After All?

by on March 21, 2006 · 16 comments

Opining about French politics is difficult because I don’t speak French, and so I’m limited to third-hand reports by reporters that may or may not know anything about technology law. As a result, I’ve had trouble figuring out what the French copyright bill now under consideration actually does. In my prvious post, I assumed that it was a deregulatory measure similar to the DMCRA. But after reading this AP story, it appears that I was wrong:

According to the latest amendments, copy-protection technologies like Apple’s FairPlay format and Sony’s ATRAC3 must work with competing services and players. Companies that refuse to share all essential information with any rival that requests it would be ordered to do so by a judge, under threat of fines. The draft law could force Apple to let French iPod users buy their music from download sites other than iTunes. Owners of other music players would also be allowed to buy songs from iTunes France.

This is very different from reform proposals here in the United States, which have the much more modest goal of undoing the anticompetitive features of the DMCA.

Obviously, this is partly a reflection of France’s tendency to over-regulate everything in sight. But I think it may also be a cautionary tale for libertarian DMCA supporters. There is likely to be a backlash against DRM technologies when consumers discover that they lock them into using products exclusively from a single vendor like Apple. When that happens, there are two ways the law might be changed. One is the Boucher approach: reform the DMCA to allow (but not require) private companies to create software to enable interoperability. The other is the French approach: leave the DMCA’s regulations in place, and layer another level of regulations on top dictating that companies must ensure their DRM is interoperable with competing DRM.

I think that given the three choices (the DMCA, Boucher, or France) the French solution is clearly the worst. So not only is Boucher’s DMCA reform good policy, but it will also help to prevent a consumer backlash that could lead to bad legislation on the French model.

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About Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.

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  • James Gattuso

    When in doubt, just assume its regulatory if it is from France.

  • James Gattuso

    When in doubt, just assume its regulatory if it is from France.

  • http://www.blindmindseye.com MikeT

    Yes, James is right. Giving France the benefit of the doubt is generally the worst thing you can do.

  • http://www.blindmindseye.com MikeT

    Yes, James is right. Giving France the benefit of the doubt is generally the worst thing you can do.

  • http://www.jerrybrito.com Jerry Brito

    Tim, You’re assuming that in France there is a DMCA equivalent that prohibits circumvention and to which this new law is aimed. Do you know if that’s the case? If not, then maybe circumvention for fair use purposes was perfectly legal and this new law is even worse than we imagine since it’s not really solving a problem. -JB

  • http://jerrybrito.com Jerry Brito

    Tim, You’re assuming that in France there is a DMCA equivalent that prohibits circumvention and to which this new law is aimed. Do you know if that’s the case? If not, then maybe circumvention for fair use purposes was perfectly legal and this new law is even worse than we imagine since it’s not really solving a problem. -JB

  • http://www.techliberation.com/ Tim

    This isn’t a subject I know very much about, and the thing that makes it particualrly complicated is the relationship between the EU and its member states. The EU Copyright Directive passed the European Parliament in 2001, and according to Wikipedia, the French government is required to implement it or face sanctions.

    I believe that the EUCD contains provisions to the American DMCA, and that the original version of the French legislation followed the EUCD. What’s being discussed now are amendments to the anti-circumvention provisions of the legislation.

    So it seems the French government had to pass something to comply with the EUCD, which in turn is supposed to implement the 1996 WIPO treaty.A Boucher-like amendment to the vanilla EUCD might be the best that can be hoped for under those circumstances.

    But I’m far from an expert in European law, so I could be way off base.

  • http://www.techliberation.com/ Tim

    This isn’t a subject I know very much about, and the thing that makes it particualrly complicated is the relationship between the EU and its member states. The EU Copyright Directive passed the European Parliament in 2001, and according to Wikipedia, the French government is required to implement it or face sanctions.

    I believe that the EUCD contains provisions to the American DMCA, and that the original version of the French legislation followed the EUCD. What’s being discussed now are amendments to the anti-circumvention provisions of the legislation.

    So it seems the French government had to pass something to comply with the EUCD, which in turn is supposed to implement the 1996 WIPO treaty.A Boucher-like amendment to the vanilla EUCD might be the best that can be hoped for under those circumstances.

    But I’m far from an expert in European law, so I could be way off base.

  • James Gattuso

    In case there’s any doubt, the Reuters report on this legislation (which was passed today) makes it clear that the bill goes far beyond just ALLOWING users to bypass DRM. According to Reuters: The new legislation will require that online music retailers such as iTunes provide the software codes that protect copyrighted material–known as digital rights management (DRM)–to allow the conversion from one format to another.

    “The new legislation will require that online music retailers such as iTunes provide the software codes that protect copyrighted material–known as digital rights management (DRM)–to allow the conversion from one format to another.”

    “Any interested party can ask the court…to get a supplier (of content)…to provide information that is essential for ‘interoperability,’” France’s new copyright law states, so that content can be read on any hardware support.”

    This is forced access regulation, not a DRM law.

  • James Gattuso

    In case there’s any doubt, the Reuters report on this legislation (which was passed today) makes it clear that the bill goes far beyond just ALLOWING users to bypass DRM. According to Reuters:
    The new legislation will require that online music retailers such as iTunes provide the software codes that protect copyrighted material–known as digital rights management (DRM)–to allow the conversion from one format to another.

    “The new legislation will require that online music retailers such as iTunes provide the software codes that protect copyrighted material–known as digital rights management (DRM)–to allow the conversion from one format to another.”

    “Any interested party can ask the court…to get a supplier (of content)…to provide information that is essential for ‘interoperability,’” France’s new copyright law states, so that content can be read on any hardware support.”

    This is forced access regulation, not a DRM law.

  • Braden Cox

    This is forced access! It’s one thing to become interoperable using the Section 1201(f) exemption. This section of the DMCA makes it legal to circumvent protection measures by reverse engineering for the purpose of enabling interoperability of an independently created computer program with other programs. This is not forced sharing. But to mandate sharing? I can see it now, a new government agency called the Office of Escrowed Source Code for Interoperability.

  • bradencox

    This is forced access! It’s one thing to become interoperable using the Section 1201(f) exemption. This section of the DMCA makes it legal to circumvent protection measures by reverse engineering for the purpose of enabling interoperability of an independently created computer program with other programs. This is not forced sharing. But to mandate sharing? I can see it now, a new government agency called the Office of Escrowed Source Code for Interoperability.

  • V

    This isn’t so bad. It means that Apple has to release the code for FairPlay so others can use it, it doesn’t mean they have to convert it for you. Creative won’t bother making it directly compatible because that’s a pain. Instead we’ll get legal file converting software that removes the DRM to make it compatible with whatever you like. Will Creative provide such a program themselves? Well, it would be to their advantage…

  • V

    This isn’t so bad. It means that Apple has to release the code for FairPlay so others can use it, it doesn’t mean they have to convert it for you. Creative won’t bother making it directly compatible because that’s a pain. Instead we’ll get legal file converting software that removes the DRM to make it compatible with whatever you like. Will Creative provide such a program themselves? Well, it would be to their advantage…

  • http://www.freedom-to-tinker.com Ed Felten

    As I understand it, the French bill contains both DMCRA-like reforms (which you like) and the open design requirement (which you don’t).

    The open design part won’t have much effect. The main barriers to interoperating with FairPlay are legal, not technical. It’s not that hard to figure out the information you need by reverse engineering. If the French want interoperation, all they have to do is make sure that reverse engineering and interoperation are clearly legal, and the market will take care of the rest.

  • http://www.freedom-to-tinker.com Ed Felten

    As I understand it, the French bill contains both DMCRA-like reforms (which you like) and the open design requirement (which you don’t).

    The open design part won’t have much effect. The main barriers to interoperating with FairPlay are legal, not technical. It’s not that hard to figure out the information you need by reverse engineering. If the French want interoperation, all they have to do is make sure that reverse engineering and interoperation are clearly legal, and the market will take care of the rest.

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