More on the French DRM Legislation

by on March 28, 2006 · 16 comments

Solveig Singleton links to this article about the French DRM proposal. I agree with its conclusion, but it strikes me as rather naive:

Like most such legislation, this bill is ill-conceived and should not pass. The reason for this is simple: it would weaken any DRM scheme, almost to the point of superfluity, and would serve only to increase piracy…

But deeper analysis shows that the provisions do nothing but undermine DRM. The problem is that the type of information necessary to achieve interoperability is also precisely the information necessary to render DRM useless: encryption algorithms, keys, content metadata, and so on. DRM would be reduced to the tiniest of speed bumps, easily surmountable with utility software that would become readily available. The boundaries between such “interoperability utilities” and circumvention software (hacks) would be erased, and the difference between legitimate and illegitimate uses of those technologies would revert to plan old copyright law–which is where we started before DRM came into being.

He’s right: the information necessary to achieve interoperability is the same information necessary to render DRM useless. But it’s not like that information is presently a secret. To the contrary, it’s already widely available, both to hackers and to any mainstream company that cares to do a bit of reverse engineering. In fact, it’s only a bit of an exaggeration to say that “the tiniest of speed bumps, easily surmountable with utility software” is a pretty good description of DRM as it exists today.

So while I don’t think companies should be required to share details of their proprietary products with rivals, my objection is mostly a matter of principle. As a practical matter, mere information disclosure isn’t likely to have much of an impact on anything.

The scary part, I think, is that sooner or later this may give judges authority over the design of software products. Because Apple changes its DRM scheme pretty regularly to deter hackers. The next step on this regulatory path is for rivals to complain that Apple doesn’t disclose those changes promptly enough. And at some point, I’m afraid that we’ll get to the point where a French judge has to sign off on any format changes before Apple can go forward with them, so rivals have time to modify their products. I don’t want the French courts to be telling Apple how to build their products.

This is the beauty of simply repealing the anti-circumvention rule (or in the French case not enacting one): companies would be free to implement interoperability features if they wanted to, but the cost of doing so would be entirely on their shoulders. The state wouldn’t be forcing Apple to open up its platform, but it wouldn’t be forcing other companies to leave it closed, either. Both Apple and its competitors would have to rely on self-help, not the courts, to make their business plans work.

  • http://www.blindmindseye.com MikeT

    In retaliation for this, why not tell the French that their stores cannot operate in the US period if they do this. Basically say to them, fine if you want to destroy our online music stores, yours cannot legally sell products in our market.

  • http://www.blindmindseye.com MikeT

    In retaliation for this, why not tell the French that their stores cannot operate in the US period if they do this. Basically say to them, fine if you want to destroy our online music stores, yours cannot legally sell products in our market.

  • James Gattuso

    So, in retaliation for France hurting their consumers, we should hurt our consumers. I’m not sure I see the logic in that…

  • James Gattuso

    So, in retaliation for France hurting their consumers, we should hurt our consumers. I’m not sure I see the logic in that…

  • http://www.blindmindseye.com MikeT

    Please explain to me how American customers win when our companies are forced into very bad positions in France, which damages their ability to compete and grow, and we in turn let French companies operate in an unfettered way. The French companies not only get unfettered access to our market, but they get a significant advantage on the home front.

    Obsessing over delivering things at the lowest cost is why half of these IP arguments go down hill so fast. It is short sighted to value low cost above all other considerations. If other countries are raping our businesses, while we give them unregulated access, we put our own people at a distinct disadvantage. Take a look at manufacturing these days. America’s economy couldn’t sustain a major war anymore. China could easily bring us to our knees simply by nationalizing all of our production there. Almost all hardware companies would go bankrupt within a few business quarters as their manufacturing capabilities would go to nearly 0% within hours.

    I’d rather spend a little extra money because the French cannot legally compete anymore in our market, and know that our government isn’t letting them screw over our businesses. There comes a point where we have to tell other countries that if they don’t stop going after our businesses, there will be consequences for their industry in our market.

  • http://www.blindmindseye.com MikeT

    Please explain to me how American customers win when our companies are forced into very bad positions in France, which damages their ability to compete and grow, and we in turn let French companies operate in an unfettered way. The French companies not only get unfettered access to our market, but they get a significant advantage on the home front.

    Obsessing over delivering things at the lowest cost is why half of these IP arguments go down hill so fast. It is short sighted to value low cost above all other considerations. If other countries are raping our businesses, while we give them unregulated access, we put our own people at a distinct disadvantage. Take a look at manufacturing these days. America’s economy couldn’t sustain a major war anymore. China could easily bring us to our knees simply by nationalizing all of our production there. Almost all hardware companies would go bankrupt within a few business quarters as their manufacturing capabilities would go to nearly 0% within hours.

    I’d rather spend a little extra money because the French cannot legally compete anymore in our market, and know that our government isn’t letting them screw over our businesses. There comes a point where we have to tell other countries that if they don’t stop going after our businesses, there will be consequences for their industry in our market.

  • James Gattuso

    So I’ll put your vote down for protectionism. Perhaps we could reinstitute Smoot-Hawley while we are at it, since it worked so well…

  • James Gattuso

    So I’ll put your vote down for protectionism. Perhaps we could reinstitute Smoot-Hawley while we are at it, since it worked so well…

  • http://crescatsententia.org PLN

    And let’s not forget that damn sun, too. How the heck can our candlemakers ever compete?

    The rhetoric that has emerged around this French development makes me want to cry, honestly.

  • http://crescatsententia.org PLN

    And let’s not forget that damn sun, too. How the heck can our candlemakers ever compete?

    The rhetoric that has emerged around this French development makes me want to cry, honestly.

  • http://www.blindmindseye.com MikeT

    James: No. I am not a protectionist. I believe in a tit-for-tat regulatory scheme. I don’t think that American companies should have to compete unfairly against state-protected French corporations or Chinese slave labor. This is where you free trade zealots refuse to face reality. There are many countries that have odious regulatory or labor relations that put us at a distinct disadvantage if we treat their companies as though they operate within the norms of our society. Why should American manufacturers have to compete against Chinese laogai labor without the Chinese paying the price for using slave labor in their prison camps to get free labor costs? That’s all I have said.

    If a country wants to go into a detente with us and reduce their regulatory barriers, that’s great. However, I am not about to support giving foreigners access to our markets if they are going to royally screw over our businesses in their markets. Are you that short sighted that you cannot see how this is bad for our country?

    By not forcing the French music stores out of our economy in retaliation, our government would be giving them a distinct advantage over other companies, including other foreign companies. Where do you draw the line? Is it when the government sanctions armies of slaves being put to work to produce for corporations?

    Libertarianism is a great domestic policy, but it is a suicidal foreign policy. A government that won’t defend its native businesses against foreign businesses that have been given unacceptably high levels of foreign state help is a government that doesn’t care if its country gets economically raped by foreigners. Doesn’t it strike you as a little wrong that you are supporting unlimited access to our markets for countries where the national government often owns a major stake in the major corporations?

  • http://www.blindmindseye.com MikeT

    James: No. I am not a protectionist. I believe in a tit-for-tat regulatory scheme. I don’t think that American companies should have to compete unfairly against state-protected French corporations or Chinese slave labor. This is where you free trade zealots refuse to face reality. There are many countries that have odious regulatory or labor relations that put us at a distinct disadvantage if we treat their companies as though they operate within the norms of our society. Why should American manufacturers have to compete against Chinese laogai labor without the Chinese paying the price for using slave labor in their prison camps to get free labor costs? That’s all I have said.

    If a country wants to go into a detente with us and reduce their regulatory barriers, that’s great. However, I am not about to support giving foreigners access to our markets if they are going to royally screw over our businesses in their markets. Are you that short sighted that you cannot see how this is bad for our country?

    By not forcing the French music stores out of our economy in retaliation, our government would be giving them a distinct advantage over other companies, including other foreign companies. Where do you draw the line? Is it when the government sanctions armies of slaves being put to work to produce for corporations?

    Libertarianism is a great domestic policy, but it is a suicidal foreign policy. A government that won’t defend its native businesses against foreign businesses that have been given unacceptably high levels of foreign state help is a government that doesn’t care if its country gets economically raped by foreigners. Doesn’t it strike you as a little wrong that you are supporting unlimited access to our markets for countries where the national government often owns a major stake in the major corporations?

  • http://crescatsententia.org PLN

    MikeT, I’m really a bit puzzled by your vehemence. I mean, at some basic level we agree that it’s not all that great for the French government to require as a matter of law that the DRM spec be made available to anyone for interoperability; bad French government! My bottom-line position is Tim’s; don’t criminalize circumvention to begin with.

    But… I just don’t get your objections here. Let’s leave aside all the stuff about China and slave labor–this is, after all, rather a reverse situation, insofar as French labor practices are far overregulated, giving us a large competitive advantage; the *French* are always the ones complaining about a ‘race to the bottom’ vis-a-vis the US. What’s going on in this case is basically that the French are interfering with Apple’s ability to turn its iPod market share into iTunes market share. What exactly is the terrible outcome of iTunes competing purely on features and price? Is it just a mercantilist point about not enough francs flowing to the US, and too many dollars flowing to France?

  • http://crescatsententia.org PLN

    MikeT, I’m really a bit puzzled by your vehemence. I mean, at some basic level we agree that it’s not all that great for the French government to require as a matter of law that the DRM spec be made available to anyone for interoperability; bad French government! My bottom-line position is Tim’s; don’t criminalize circumvention to begin with.

    But… I just don’t get your objections here. Let’s leave aside all the stuff about China and slave labor–this is, after all, rather a reverse situation, insofar as French labor practices are far overregulated, giving us a large competitive advantage; the *French* are always the ones complaining about a ‘race to the bottom’ vis-a-vis the US. What’s going on in this case is basically that the French are interfering with Apple’s ability to turn its iPod market share into iTunes market share. What exactly is the terrible outcome of iTunes competing purely on features and price? Is it just a mercantilist point about not enough francs flowing to the US, and too many dollars flowing to France?

  • http://www.blindmindseye.com MikeT

    PLN: sorry if I seemed a little… passionate on that. I have come to be skeptical of “free trade” which is sort of a heresy among Libertarians (I tend to vote straight ticket each election) because it is usually a cover for a one-sided help plan for big business at the expense of American workers, and is hardly unregulated in practice (Why is NAFTA more than 1 or 2 sentences if it’s about free trade?). I agree with you and Tim that the French government should be neutral, what I disagree with James on is whether our government should in response be neutral toward French companies if their government outright attacks our companies operating in France.

    My point to James was at what point do you say that a country’s government is helping its domestic businesses too much, and then start to take away that advantage in your market? Knowing the French government, it wouldn’t care if the whole ITMS imploded in France. This bill goes beyond a hands off approach into the area of an outright assault on American interests. If the French simply passed a law clarifying that DRM would only be protected in cases where the purpose of breaking it was purely for infringement on copyrights, then I’d be applauding them like you.

    The thing is… no one is stopping Napster or another company from making a new firmware for the iPod that opens it up to Windows Media. The iPod doesn’t actually, AFAIK, have anything it that prevents competitors from modifying it to support their DRM. It’s just that Apple will actively patch these holes. The interoperability is certainly technically feasible, and apparently not legally dangerous in Europe or Asia. Why the need to mandate compatibility if the ability to achieve it is unhindered by hardware or law? That’s why I said that the federal government should act. It’s just a French government attempt to attack Apple and promote French commerce.

  • http://www.blindmindseye.com MikeT

    PLN: sorry if I seemed a little… passionate on that. I have come to be skeptical of “free trade” which is sort of a heresy among Libertarians (I tend to vote straight ticket each election) because it is usually a cover for a one-sided help plan for big business at the expense of American workers, and is hardly unregulated in practice (Why is NAFTA more than 1 or 2 sentences if it’s about free trade?). I agree with you and Tim that the French government should be neutral, what I disagree with James on is whether our government should in response be neutral toward French companies if their government outright attacks our companies operating in France.

    My point to James was at what point do you say that a country’s government is helping its domestic businesses too much, and then start to take away that advantage in your market? Knowing the French government, it wouldn’t care if the whole ITMS imploded in France. This bill goes beyond a hands off approach into the area of an outright assault on American interests. If the French simply passed a law clarifying that DRM would only be protected in cases where the purpose of breaking it was purely for infringement on copyrights, then I’d be applauding them like you.

    The thing is… no one is stopping Napster or another company from making a new firmware for the iPod that opens it up to Windows Media. The iPod doesn’t actually, AFAIK, have anything it that prevents competitors from modifying it to support their DRM. It’s just that Apple will actively patch these holes. The interoperability is certainly technically feasible, and apparently not legally dangerous in Europe or Asia. Why the need to mandate compatibility if the ability to achieve it is unhindered by hardware or law? That’s why I said that the federal government should act. It’s just a French government attempt to attack Apple and promote French commerce.

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