April 17, 2014

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The French DRM Law, and the Right to Interoperate

Thanks to Bernard Lang for yesterday’s discussion of the proposed French DRM law. The proposed law has been widely criticized in the U.S. press. Assuming Dr. Lang’s translation is correct, this criticism is mostly (but not entirely) off the mark.

Apple’s iTunes and iPod are good examples of the type of product that would be affected. Critics of the proposed law claim that (a) the proposal would increase infringement on record company copyrights, and (b) the proposal would strip Apple of its intellectual property.

The first claim is easily disposed of. iTunes songs are easily copied – everybody knows that iTunes lets you copy songs to unprotected CDs. And more to the point, record companies already sell all of their music in an unprotected format – the compact disc – which accounts for the vast majority of music sales. These songs are all on the P2P networks already, and any small difference in the difficulty of copying iTunes songs isn’t going to change that.

The second claim is the more interesting one. Some critics of the proposal claim that it would force Apple to publish the source code for iTunes. I don’t see that requirement in the proposed text. All the text requires is that Apple release enough information for other companies to make products that interoperate with iTunes. Apple can do this without publishing its source code. Apple can document the file format in which iTunes songs are stored, or it can create an interface that other DRM programs can invoke if they want to work with iTunes, or it can find another way to enable interoperation.

The key issue is whether third-party products can interoperate with iTunes. As Bernard Lang argued yesterday, current law does not give Apple the exclusive right to interoperate with Apple products. To change this, by creating such an exclusive right, would be a big change in public policy – one the proposed law would avoid, with its pro-interoperation provisions.

Interoperation was also a big theme in the important new DMCA white paper issued last week by the Cato Institute (and written by Tim Lee). Cato argues that the DMCA anticircumvention provisions have given incumbent companies an effective right to veto the development of interoperable products, and have thereby blocked innovation. France, wisely, wants to avoid this problem.

(Some commentators have argued that granting an exclusive right to interoperate can be efficient in some circumstances. Even if they’re right, it seems like bad policy to grant that right so indirectly, or to condition it on the presence of copyrighted content or on the use of certain kinds of access control technologies.)

But this is where the French proposal overreaches. Rather than simply protecting the ability of other companies to interoperate with iTunes, by keeping their path free of legal barriers, the proposal would require Apple to take affirmative steps to help rivals interoperate.

Imposing that obligation on Apple is not necessary, in my view. iTunes is not very complicated, so others should be able to figure out how to interoperate, for example by reverse engineering iTunes, as long as the law clearly allows them to do so. The disclosure obligation, though less onerous than critics say, won’t provide much extra benefit, so it’s not worth imposing its cost on Apple and others.

The best policy is for government to stay out DRM decisionmaking altogether. Let companies like Apple develop DRM schemes. Let others interoperate with those schemes, if they can figure out how. Ensure competition, and let the market decide which products will succeed, and which DRM schemes are viable. This is the essence of the Cato report, and of the USACM DRM principles. It’s my view, too.

Comments

  1. rob williams says:

    One thing which is not clear to me from my reading of the text is whether the obligation falls just to let other companies play iTunes songs, or it also extends to allowing other companies to publish in the iTunes format. Everyone seems to be assuming the latter, but it’s not immediately clear to me.

    For the former, the supposition is that a user purchases a song on iTunes, and now has a copyrighted work which they should be allowed to access in whatever way they choose. The law contemplates that other software and hardware providers be able to create devices that will enable the consumer to do this.

    For the latter, it’s not clear how the mandate that anyone be allowed to access a format protecting a copyrighted work extends to giving publishers access to Apple hardware, iPods, or software, iTunes proper. I don’t see the copyrighted work hook that needs to be there for the directive to do any lifting.

    I don’t know enough to say whether most DRMs are symmetric algorithms, so giving away the one is necessarily giving away the other, but I can think of a few companies that do brisk business in giving away the dec and selling the heck out of the co. I wouldn’t necessarily go so far as to say that government should mandate it, though.

  2. Ewan says:

    The reason the obligation must be imposed is to avoid the situation that occured with Real’s Harmony system. Real reverse engineered iTunes, using as a DMCA defence the fact that their system merely translated the DRM to another form, it did not circumvent it. Apple promptly broke the system by changing the format and forcing an upgrade on all iTunes users.If interoperability os to be practical that must not be allowed to happen.

  3. v says:

    It’s my understanding that in order to comply with this law, all Apple would really need to to is add a simple function we know as “File, Save Music As” which allows users to convert to MP3 or unprotected AAC and regain interoperability. That’s meddlesome, but not the end of the world. (Felten’s free market thinking is better.)

    All this goes to show how tech-blind American media is.

  4. TomCS says:

    I think we now need more help from Bernard Lang. The issue of whether Apple will be required to release its code/algorithms is probably primarily dealt with in another draft article, which he has not so far translated, Article 7 bis. This in general terms would require anyone “importing” a protection system into France to deposit it and clear it with the French Government authorities responsible for IT security, but not as I read it to release that information to third parties. This is therefore at least logically a separate. and not at first sight unreasonable, requirement from that which seeks to impose interoperability, in the sense of enabling the transfer of a protected download into an open standard format. But my French (let alone my legal French) is not adequate to produce a finer analysis. What the French draft legislation would clearly allow (unlike DCMA) is attempts to reverse engineer, though I do not see how it would prevent (pace Ewan) Apple “improving” their system subsequently.

    I see nothing in the French text to suggest that it would require Apple to enable others to distribute their content under Apple DRM: the perspective of the draft legislation is to protect purchasers’ rights to media shift, within the overall limitations of copyright law. The drafts explicitly address copy limitation as an option (e.g. the iTunes limits on burning playlists).

  5. Nicolas Christin says:

    As a disclaimer, I am a native French speaker, but, being an engineer and not a lawyer, even I have plenty of trouble reading French legalese. That being said, TomCS, I think you’re entirely right regarding Article 7bis. Essentially, my read of the Article is that anyone who imports software using or providing DRM has to send

    - the source code
    - the source code of any library it links against “whenever it is available” – which to me seems like a possible loophole, even though they say they reserve the right to ask any third party involved in the software for the exact same documents
    - the development/compilation environment needed to generate the object code from the source

    to “the State services in charge of information security” (not to sure who that would be).

    As far as I can tell, this Article never mentions the source code has to be published anywhere, just that it has to be provided to the government. From this article only (I haven’t read the whole text yet), it does not seem either that the government has to give its blessing to the source code before the DRM solution can be deployed – it merely needs to have it on record.

  6. v says:

    Doesn’t that make even more sense? This way, in the event that Apple or another online music store goes bankrupt/pulls out of France, then the music is not lost. The government has the DRM code on file and can have a government owned software firm write a program to remove that code.

    As it stands, if the iTunes server died, so would the iTunes music. It would be locked onto the few machines that its already activated for, and I don’t know how it works with burning CD’s.

    Having that code on file protects the consumers property and protects the art from being completely locked up in impenetrable DRM.

  7. Owen Williams says:

    “iTunes is not very complicated, so others should be able to figure out how to interoperate, for example by reverse engineering iTunes.”

    This has already happened, and it was done by “DVD Jon” Lech Johansen himself. He co-wrote SharpMusique (http://www.nanocrew.net/software/sharpmusique/), which is a linux application that downloads songs from itunes. It charges the same .99$ that itunes does, although it does not apply the DRM copy protection to the files it downloads.

    A French company could take this code and publish “Les Tunes” or whatever fairly easily.

  8. paul says:

    I think Ewan has it. As we’ve seen with Microsoft (as well as Apple) reverse-engineering an undocumented standard is an endless game of leapfrog — well, endless until someone runs out of patience or money. And you’d have far more cost to Apple (and stifling of innovation) if you imposed limits on what changes they could make to their formats or protocols, or how often they could make such changes.

  9. Steve R. says:

    The sentence: “The best policy is for government to stay out DRM decisionmaking altogether.” requires some parsing. It sounds reasonable, but we need to ask the question of what would happen if we had true non-involvement on the part of the government. To me this de-evolve into a “buyer beware” senario. I will agree, that a company can make a proprietary hardware device that utilizes DRM and I don’t have a problem with that. However, I draw the line when it comes to computers and mass market devices where an open public standard should be used. The government has a critical role in making legislation that would prohibit the deployment of DRM technoligies on equipment such as computers. Especially when those changes make stealth changes to the operating system and/or other changes that would degrade your ability to use YOUR computer.

  10. Guillaume Lessard says:

    Everyone seems to be focusing on Apple, but there are others in the world. Will this law have an effect on the DVD cartel and its descendants? They seem like a more immediate menace to me.

  11. Walter Vannini says:

    “Imposing that obligation on Apple is not necessary, in my view. iTunes is not very complicated, so others should be able to figure out how to interoperate, for example by reverse engineering iTunes, as long as the law clearly allows them to do so.”

    Actually I see such an obligation as necessary, as playing with proprietary file formats is a very effective tool to cut out any competition, even the most determined. Microsoft is there to remind us of exactly that.

    And as long as we keep letting companies arbitrarily define proprietary systems and use them as a marketing tool, the market will never be able to build on something, we’ll keep reinventing the wheel, as the word processing market is there to demonstrate

  12. InfoSeeker01 says:

    Hi everyone,

    I am a developer and not a lawyer but one thing really amazes me is this compulsory demand for a company to inter-work with others or even its competitor.

    I find this kind of imposition odd and is peculiar to IT/Software only. If I build a house and does not want to invite anyone in, it is my own business. If I want to put my front door at the back (totally incompatible with the neighbourhood), it is my business. If I wire up my house with a telephone system that is totally incompatible with anyone else, it is my own silliness but it is within my rights.

    French cars do not use the same kind nuts and bolts as US or Japanese car. Toyota’s gear box does not mate with Renault’s. US appliances is not compatible with those across the Atlantic.

    Are we seeing French government to force Renault to inter-work with Toyota’s gear box or steering wheel.

    Surely if Apple suffers because it is not compatible with others, it is Apple’s fault. If Apple’s competitor could not come up a scheme better than iTune to steal the market from Apple, it is not Apple’s fault. Like someone losing a 100m dash, you could not run as fast as the winner. Should the leader hold the second runner’s hand to share the first place?

    I am not an Apple fan and I do not own any iPod stuff. Apple spent lots of money, brain power, and takes on huge amount of risk, why should they yield any market shares to their competitors? To that matter, any other company that has achieved that fair and square, should be allowed to choose their strategy.

    If iTune users found they were constrained by Apple’s failure to work with others and if they value interworking is of higher value than staying with Apple, they will dump Apple and Apple will lose. No need for legislation to forcefully allowing one to yield.

    Apple fight for your rights.

  13. Edward Kuns says:

    InfoSeeker01,

    You are truly missing the point of the French government. But first to nitpick, you CANNOT wire your house with an incompatible phone equipment. Or at least you can do so, but the phone company will not let you connect your incompatible stuff to their networks.

    Anyway, if I build a physical object, then reverse engineering is an accepted and court approved way of figuring out how someone made it and, if I can do it without violating any patents, I can make my own physical objects that work with or replace the first physical object. This is expclitly allowed.

    At issue here is a confluence of laws and legal interpretations that are giving software an undue protection against reverse engineering. Thus, a software company is able to effectively totally prevent anyone else from interoperating if they so choose to do so. Apple has made this choice.

    This choice is simply not available for any physical object that you could manufacture. If you sell a physical lock and I figure out (without violating trade secret law) how to make keys that will open those locks, then I can legally make and sell such keys as long as I can do so without violating any patents. However, the DMCA (in the US) prevents that exact same procedure for things that involve software.

    It looks like France is trying to level that playing field for software in an explicit manner. If they succeed, then the playing field will be level in the way that the manufacture of physical items is.

  14. Edward Kuns says:

    Infoseeker01,

    To complete my nitpicking:

    > If I want to put my front door at the back (totally
    > incompatible with the neighbourhood), it is my business.

    This depends on what the zoning laws are in your locale.

    > French cars do not use the same kind nuts and bolts
    > as US or Japanese car. Toyota’s gear box does not
    > mate with Renault’s.

    Nope. However, there is a brisk market for third party replacements and enhancements. Apple has managed to prevent such a third party market from existing around iTunes. The auto makers do not have the same luxury of preventing the existence of non-OEM hardware manufacturers. If I want to make my own Toyota-compatible gear box and sell it, Toyota cannot stop me. Apple CAN stop me, currently, if I try to do the exact same thing with iTunes.

    > Surely if Apple suffers because it is not compatible with
    > others, it is Apple’s fault.

    This is not about Apple. This is about the market.

    > Apple spent lots of money, brain power, and takes on huge
    > amount of risk

    This is true of any successful company. However, only software companies (more or less) have the ability to absolutely prevent someone from making commercially available an enhancement, add-on, or drop-in replacement for their product.

  15. epp_b says:

    ["French cars do not use the same kind nuts and bolts as US or Japanese car. Toyota’s gear box does not mate with Renault’s. US appliances is not compatible with those across the Atlantic."]

    Those examples are completely off-base.

    If you possessed the ability and so desired, it would be entirely technically possible for you to modify the transmission from your Toyota to work with your Renault. Same goes for modifying your US appliance to work in Europe. There’s no legal restriction baring you from doing such things because they are *your own things that you paid money for*.

    Now, if there were a law that prohibited you from performing such operations (which, I think, we can all agree would be ridiculous), that would be a more alike example, but this is simply not the case.

    ["I am not an Apple fan and I do not own any iPod stuff. Apple spent lots of money, brain power, and takes on huge amount of risk, why should they yield any market shares to their competitors?"]

    Because they don’t *have* competitors. They’ve cheated their way into the market and then locked unwitting users into DRM handcuffs. DRM is not an anti-piracy tool, it’s an anti-competitive market lock-in tool. By forcing DRM vendors to open up their schemes, they have no choice but to play fairly (no pun intended, thank goodness).

    I say, good move France. Get rid of this monopolistic anti-competition.

  16. Audrey says:

    You all have talked about how fair or not it is for Apple. But let’s imagine Apple refuses to relinquish under this new law, they will not have another choice than leaving France. Otherwise, they will expose themselves to see their music losing the exclusivity of being played on iPod for the advantage of any platform all over the world.