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.