More on the French DRM Legislation

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.

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