July 23, 2016

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Bernard Lang Reports on the Proposed French DRM Law

[Bernard Lang, a prominent French computer scientist and infotech policy commentator, sent me an interesting message about the much-discussed legislative developments in France. It includes the first English translation I have seen of the proposed French law mandating open access to DRM technologies. He has graciously given me permission to post his message here, with some minor edits (mostly formatting) by me. Here is his report and commentary:]

The new French law on copyright (our own local version of DMCA), is called DADVSI for “Droit d’Auteur et Droits Voisins dans la Société de l’Information.”. “Droit voisins” stands for derived activities and works, mainly the work of performing artists – I translate it below as “adjacent rights”, not knowing a better or standard translation.

This copyright law is supposed to transpose into French Legislation the European Copyright directive of 22 May 2001.

The law was sent on a fast track procedure (meaning only one reading, rather than three, in each chamber), because it should have been passed a long time ago, and France may be fined by Brussels for being late. It has now passed the MP reading. This unique reading was supposed to take fifteen hours. It took sixty and got more publicity than the government wanted. It will be submitted to the senate in May. The current text and related documents are available online (just in case you read French and are interested).

I will not go into all details of that law, and keep to one aspect that is actually positive. The law also has many regressions that go beyond DMCA or anything accepted in other countries, such as the so-called “Vivendi-Universal” amendments, that have become articles 12-bis and 14-quater (this is temporary numbering) in the current text. These somewhat unprecise articles allow penal (12 bis) or civil (14 quater) suits against software authors whose software is “manifestly” used for illegal access to works.

The point I want to discuss is mostly in article 7, which essentially tries to turn any technical protection measure (TPM) into an open standard. We are lucky in that we have here a legal definition of what is an open standard, which specifies that the standard must be freely usable (including that it is not encumbered by IP).

One interesting fact is that this article 7 did not have most of these clauses when first voted during the debate. Then, on the last day (night ?) of the debate, after the last article, they reopened the debate on article 7 and voted the current version at 3h00 am. This was not a complete surprise, since it was known that several majority MPs were negotiating with the government.

Article 7 of the law (I am losing some technical legal subtleties in the translation, for lack of knowledge of legal vocabulary) actually creates a new article in the French Intellectual Property Code that states :

Article L. 331-5. –

Effective technical measures intended to prevent or limit uses unauthorised by the rightholder of a copyright or an adjacent right of any work, other than software, interpretation, phonogram, videogram or audiovisual program, are legally protected under the condition stipulated here.

Technical measures, in the sense of the previous paragraph, are understood as any technology, device, component, which, within the normal course of its operation, realizes the function intended in the previous paragraph. These technical measures are deemed effective when a use considered in the previous paragraph is controlled by means of an access code, a protection process, such as encryption, scrambling or any other transformation of the protected object, or a copy control mechanism, which achieves the protection objective.

A protocol, a format, a method for encryption, scrambling or transforming does not constitute as such a technical measure as understood in this article.

The technical measures should not result in preventing actual use of interoperability, not infringing copyright. Technical measures providers must give access to the information essential to interoperability.

By information essential to interoperability, we mean the technical documentation and the programming interfaces necessary to obtain, according to an open standard in the sense of article 4 of law n° 2004-575 of june 21st 2004 for trust in numerical economy, a copy of a reproduction protected by a technical measure, and a copy of the numerised information attached to this reproduction.

Anyone concerned may ask the president of the district court, in a fast track procedure, to compel a technical measures provider to provide information essential for interoperability. Only the logistic costs can be requested in return by the provider.

Any person desiring to use interoperability is allowed to proceed to decompiling steps that might be necessary to make essential information available. This disposition is applicable without prejudice to those of article L. 122-6-1. [note: this is the article regarding software interoperability that transposes into French law the part of the 1991 European directive regarding interoperability and some other provisions.]

Technical measures cannot be an obstacle to the free use of the work or the protected object within the limits of the rights set by this code [i.e. the French code of Intellectual Property] as well as those granted by the rights owners.

These stipulations are without prejudice to those of article 79-1 to 79-6 of law n° 86-1067 of September 30, 1986 regarding freedom of communication.

One cannot forbid the publication of the source code and technical documentation of independent software interoperating for legal purposes with a technical protection measure of a work.

No guaranties are offered for this translation, and I am not a lawyer :-)

Some of the stipulations of this article are a little bit unclear, because of other articles (13 and 14) that may limit certains rights, especially in the 3rd paragraph from bottom. … It is not clear which prevails.

This text does not say that TPM must be open standards, but they they should be essentially like open standards, as long as they are not covered by patents … and we are not supposed to have software patents at this time, in Europe.

Now there have been strong international reactions to this text, some of which are reviewed on my web site, in English and/or French.

I was particularly interested in the comment by U.S. Commerce Secretary Carlos Gutierrez, in an article, “Commerce chief supports Apple’s protest over French law,” from America’s Network on March 24:

“But any time something like this happens, any time that we believe that intellectual property rights are being violated, we need to speak up and, in this case, the company is taking the initiative,” AFP quoted [Gutierrez] as saying [on MSNBC]. “I would compliment that company because we need companies to also stand up for their intellectual property rights.”

This is interesting, because I have been supporting for some time the view that DMCA-like legislation was actually attempting to create a new intellectual property right, a “DRM right”, that gives exclusive rights to the initial users of a DRM format to develop software interacting with it. Of course, no one, to my knowledge, would actually acknowledge the fact. [This is similar to what Peter Jaszi and others have called “paracopyright” in the U.S. – Ed]

Interestingly, one purpose of this new IP right is to prey on cultural creation and creators by controlling the distribution channels, while pretending to offer what seems to be mostly an illusion of protection.

The limitations of the French law just restrict technical measures to be what they are supposed to be: a protective device (for whatever it is worth), without giving any control to people other than the (rightful ?) rightowners of the work.

Without interoperability as required in the French law, DRMs (or TPMs if you prefer) behave pretty much like patents on formats and distribution models, without even requiring innovation, nor official application and examination, and without a time limit or compulsory licensing.

Now, I seem to recall that an obscure American legal document stating that:

The Congress shall have Power […] To promote Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

is the basis for the existence of IP in the United-States.

If indeed, as asserted by Mr Carlos Gutierrez, the French law will infringe on Apple’s IP rights, these rights can only be in Europe (no software patents, recall) the new “DRM rights” I have been discussing above, and that are the consequence of the DMCA.

But if that is the case, this “DRM rights” require no novelty, nor are they limited in time, even in a formal way. Hence they can only be unconstitutional.

There are other interesting comments in the press. My preferred ones are :

French on to something with iTunes law, say analysts
Reuters, ZDNet, March 20, 2006.

Analysts say the French are on to something that the rest of the world has yet to figure out: It needs to set rules for this new market now or risk one or two U.S. companies taking control of online access to music, video and TV.

France debates new tunes for iPod
Thomas Crampton, International Herald Tribune, March 17, 2006 .

The French government’s approach is bold and the only one that makes sense,” said Michael Bartholomew, the director of the European Telecommunications Network Operators’ Association, a trade group based in Brussels.

And apparently, some professional organizations are finally coming to understand on which side their bread is buttered :

France May Force Apple to Open Up iTunes as Bill Moves Ahead
Rudy Ruitenberg, Bloomberg, March 20, 2006.

“The music industry is in favor of interoperability, it would make music accessible on more platforms. It’s quite a technical and complex provision, so it’s not quite clear how it’s going to work in practice,” [Olivia] Regnier [European regional counsel for the London-based International Federation of the Phonographic Industry] said.

The irony of this is that it is the free software organizations, presented by the “cultural community” (read “those who make pots of money in the name of culture”) as the utmost evil, who have been fighting for this interoperability clause.

I remember that, while some partners and I were being auditioned by government officials, their faces expressed surprise that we worried that artists should be able to publish their work, possibly protect their work, freely and without having to submit to the technology leveraged market control of a few large companies. My feeling was that no one else had expressed that concern before.

And, as usual, France Is Saving Civilization. But for the first time, Americans recognize the fact :-)

How France Is Saving Civilization
Leander Kahney, Wired, March 22, 2006.

Well, that is all. I still have to read the week-end developments and prepare for the senate hearing of the law.

Comments

  1. I think what Bernard Lang is translating as “adjacent rights” are what Canadian law terms “neighbouring rights”.

  2. this type of law , if widely adopted , will have a positive effect on society by preventing the monopolization of culture by a DRM . it will not , however , reverse the monopolization of culture by a handful of record companies and movie studios . presumably , new technologies will enable new business model that may do away eventually with he old system .

    it will also have the curious effect of saving apple’s soul , at least in this instance .

  3. avatar Peter Mogensen says:

    I agree that this is a new “DRM right” and it effectively behaves like an easy to get, long lasting softwarepatent (although with a dubious foundation in technicalities).

    And actually, this has been pointed out before. I’ve been ciritizing exactly that in Denmark the last 3.5 years and actually the Danish broadcasting company (DR) said in their official reply to the law that this was “a whole new right, which in the oppinion of DR did not belong in the copyright system”.

  4. avatar Leslie Katz says:

    adjacent=derivative?

  5. There’s nothing inherently wrong with DRM, just as there’s nothing wrong with Apple supplying music in an obscure format.

    The wrong is in the idea that DRM should have legal sanction or protection against its removal.

    If DRM was any good at all it wouldn’t need such legal protection.

    This is like passing a law that forbids removal of red paint from ears of corn in order to enable the farmer to utilise this new fangled method of securing his crop against crows. And doubly stupid to pass a law that stipulates the paint must be completely non-toxic, i.e. to birds as well as humans.

    What law will Canute come up with next?

  6. Matthew Skala is right: droits voisins are refered to as “neighbouring rights” in international copyright law. They include the rights of performers in their performances and of producers of phonograms in their products. In Europe, moreover, they also include the rights of broadcasting organisations in their broadcasts.

    DRM have found international acceptance in both the WCT and the WPPT (both available online at http://www.wipo.int). These international treaties require member states (among them the U.S., the E.C. and all European countries that are members of the E.C.) to establish protection for DRM-systems.

  7. See http://eucd.info/ for much more information on the French transposition of the EU Copyright Directive.

    The WIPO Internet treaties require “adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.” They do not require the much more detailed restrictions on circumvention of Technological Protection Measures that the DMCA and EUCD put in place.

  8. avatar Peter Mogensen says:

    Yes… but the WCT only requires protection against actions which are not permitted by law. (read the last 4 words of art. 11)

  9. avatar the_zapkitty says:

    So the current antics, the caprices of DRM legislation magically producing previously unknown, exclusive, and eternal rights for the media industries out of thin air and without legal precedent… is not mandated by any international treaty?
    (Counting the EU as one nation in this regard)

    So the draconian measures of the EUCD and the DMCA were bought and paid for solely by the media industries?
    (as represented by the MPAA, RIAA and their international analogues)

  10. thanks for the great post – have been reading about it on other sites but without any actual reference to the text of the law – I certainly hope it passes through the Senate unammended but can imagine there is some serious lobbying going on right now – with the inroads Apple has been making into educational institutions its utterly perverse that they should control the format of culture/knowledge – I’m just surprised that something like this has not occurred in the USA – it seems no different to the Microsoft antitrust browser bundling that pushed others out of the market – am from another country so feel free to enlighten me as to how it might be different.

  11. While this is a nice summary, I don’t understand how you reach your conclusions. This all seems like it does more *for* DRM than against it. More accurately, this seems to put control of DRM back into the hands of the media industries and out of the hands of the technology companies.

  12. avatar the_zapkitty says:

    As I understand it this bill has been the subject of intense struggle and many alterations.

    It was originally crafted as yet another bought-and-paid-for wet dream by the media industries… but the parliamentary infighting has led to strange countermeasures being jammed into it sideways such as the “Legal P2P” notion you may recall from a while back, and now the current “Open DRM” provisions…

  13. I dont reckon for a minute that Apple will open its FairPlay DRM – I reckon they will substitute the DRM in the French iTunes store for some other DRM (read the EULA, they reserve the right change the terms at anytime). They would be mad to risk their market share (monopoly) in other countries, especially for a country that only makes up 2% of their income

    France could well be headed for less fair use as a result of this.

  14. We all owe Bernard Lang our thanks for this valiant attempt to unpick fore non-Francophones what is after all still draft legislation, subject to review in the French Senate (and subsequent constitutional procedures). I have also had a close look at the French text, and although like him not a lawyer, he seems to have done an excellent job in his initial translation.

    That said, I am not clear whether the law as currently drafted will have any disasterous effects on Apple’s iTunes Music Store operations in France. The fifth paragraph of the draft Article 7 defines interoperability in terms of the ability to make an “open standard” copy of a protected copy. I do not have access to the definition of an “Open Standard” in Law 2004-575: others may be able to help. But if mp3, mp4 and AIFF are open standards in the relevant sense, then it is already almost trivial to copy material bought from an iTunes music store (and protected by Apple DRM) into an unprotected electronic – or indeed hard CD – format. The “necessary technical documentation” is already in the iTunes help screens. Apple have understandably not chosen to emphasise this aspect of their iTunes (store + music management program) system, and the content providers have little interest in so doing, but it is there.

    If the outcome is however such that Apple choose to suspend the operations of their “French” iTunes store, it will raise a number of interesting European-wide issues. The EU Commission is already looking at the case for a single performing rights structure for the 15 member states, which would allow Apple to unify (other than for language purposes) their current mess of individual country stores. And I doubt if in practice it would be possible to deny French purchasers access e.g. to the Belgian version: this would pose a huge affront to the principles of the “single market”. The Commission may well have comments to make to the French authorities on the areas in which this draft goes beyond the requirements of the Directive, and may introduce new barriers to internal EU trade.

    But generally I think that we should all relax a little, and see how much of thios rather confusing text will survive the rest of the French legislative process. All I see at the moment is a bonanza for the lawyers.

  15. Apple should have the right to sell music in any format they wish. Consumers should have the right to buy music in that format, with full understanding of the limitations that format entails. Governments needn’t bother with protecting the music producers or consumers…they’re both doing just fine on their own. Music has never been cheaper or more convenient.

    If anyone wants DRM-free music, buy a CD. I hear they’re widely available and the audio quality is supposedly quite good.

  16. “adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”

    Interestingly, this seems to suggest that the WIPO treaty does NOT require it to be illegal to circumvent DRM:

    * With the author’s permission (e.g. musicians telling fans how to de-DRM their own tunes after downloading from an online music store);
    * For the purpose of making fair use, e.g. excerpting for criticism, or (notably) reverse engineering for purposes of interoperability.

    I.e. it needs to be illegal under the treaty only where the DRM circumvention is intended for purposes of infringement.

    Fascinating.

  17. avatar Edward Kuns says:

    Greg,

    Either you are not a regular reader of this space or (if you are) you’re a troll. I don’t know which. But in any case:

    > Governments needn’t bother with protecting the music producers or
    > consumers…they’re both doing just fine on their own.

    You appear to have missed the passage of the DMCA that protects music producers. Now, if the DMCA were reversed, then what you say above would make sense. Speaking of the US, not of France, obviously.

    > If anyone wants DRM-free music, buy a CD. I hear they’re widely
    > available and the audio quality is supposedly quite good.

    Did you miss the whole Sony debacle with XCP and MediaMax? If current trends continue, DRM-free music CDs will become scarce.

  18. I think it’s puzzling why the record labels want to kill the system THEY HELPED build. It’s not like Apple built their own record label or is selling indie music tracks. Apple received permission from UNIVERSAL to sell their music and Uni makes $.65 on every $.99 in the US – not bad margins AND they also clearly knew and approved the feature of convverting the DRM tracks to clear CD -audio tracks with a few clicks – hardly an oppressive system and yet, that’s suddenly not good enough and their goal is help consumers? REALLY? Why don’t they just have Apple (and others) sell tracks without DRM if they are so concerned with interoptibility??!!! Why is it they are more than willing to sell CD’s with rootkits and other very oppressive DRM’s??? Does this law only apply to online music sold and why?

    Mostly Apple but also others have put A BILLION dollars + revenue into their coffers and yet, that’s not good enough for them? They’d rather risk alienating Apple and others to withdraw from the marketplace, why?

    Because royalties on online sales are easy to trace while CD sales are not – that they would rather give up money from Apple & others and take their chances of making ZERO from online sales?

  19. NB DRM is fine, because it is simply a file format intended to obscure. DMCA is the evil because it protects this intention. It grants a new right to the supplier of a file to have the exclusive monopoly over what methods or mechanisms the purchaser of such a file is entitled to apply to it (where the purpose of obscurity is to prevent copyright infringement).

    The problem is, DRM doesn’t prevent copyright infringement. Copyright is supposedly sufficient to prevent infringement. So why on earth have another law to protect something that is ineffective anyway?

    The DMCA says “It is illegal to open this file and understand its contents or manufacture a device that facilitates this, where the copyright owner intends the contents to remain obscured except via its approved devices”.

    DRM doesn’t say that at all. DRM is just the supplier putting a sticker on the file that says “Please do not remove this sticker – no serviceable parts inside”.

    Copyright is a weapon that was originally only supposed to be effective against publishers.
    DMCA is a weapon that is supposed to be effective against manufacturers of copying devices, but unfortunately is also effective against manufacturers of competing playback devices.

    Ultimately, the DMCA is an unwitting blessing to free culture. If anything, it should be preserved rather than compromised. The nastier, more unpleasant, more inconvenient, less interoperable, proprietary media becomes, the quicker people will abandon it, and the more popular open media and the artists and devices that support it will become.

  20. Edward,

    >You appear to have missed the passage of the DMCA that protects music >producers. Now, if the DMCA were reversed, then what you say above would >make sense. Speaking of the US, not of France, obviously.

    No, I didn’t miss DMCA…I’m totally against it. Which is the point I made: governments (both the U.S. and France, and any other) should stay out of DRM regulation. I’m fine if companies want to DRM their products, but I’m not okay with the government enforcing their business models.

    >Did you miss the whole Sony debacle with XCP and MediaMax? If
    >current trends continue, DRM-free music CDs will become scarce.

    No, but that case proves my point exactly. The backlash was so severe that I don’t think Sony will be trying it again anytime soon. And the government didn’t have to get involved…consumers fixed the problem on their own. Again, my point: governments don’t need to intervene…it’s not their business, and neither side needs their help.

  21. avatar Edward Kuns says:

    Greg,

    I misunderstood what you were saying. When you said “Governments needn’t bother with protecting the music producers” it wasn’t obvious that you included in that statement that the DMCA (or at least parts of it) should be repealed. I thought you were referring only to new law, not to existing law. I withdraw all criticisms of you, above. I don’t agree with you 100%, but I respect the Libertarian view when consistent.

    I expect we’ll see more DRM-protected CDs, hopefully at least with less offensive DRM involved. If we are lucky, the content distributers have realized the folly of DRM-on-CD and have given up, but I really doubt it. Because if the music industry insists on going forward with DRM — especially with the DMCA providing a legal backbone for it — they will slowly and methodically slit their own throat, the whole time blaming continouously dropping sales on theft. ie, more of what we have seen in the past couple years.

  22. For information : the first round of senate hearing is over and http://EUCD.INFO/ had to prepare for them in a hurry (hearing last Tuesday, report filled on Friday, amended during the week-end, cultural commission this week). Haste is the buzzword when talking about DADVSI. I’ve not heard about the personal involvement of Bernard Lang in the senate hearings but I’m confident he will write an inspired report when it’s over. Thanks Bernard.