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TMO Reports - French DRM Law Could Have Worldwide Impact

by , 1:10 PM EST, March 24th, 2006

TMO recently had the opportunity to discuss the proposed French law to regulate copy protection and digital rights management (DRM) with intellectual property expert William Hart from the New York office of Proskauer Rose LLP. The bill passed the French lower house on March 21, and is now on its way to the upper house for approval. The intent of the law is to protect digital copyrights and ensure interoperability between devices, but it could also force companies like Apple, Sony and Microsoft to share proprietary digital rights management technology with each other and anyone else that asks.

TMO: Once this bill gets through the French Senate, do you expect it to have any real impact on copyright and intellectual property protection?

Hart: The bill raises any number of questions, and could have an impact not only within France, but in the rest of the world, as well. To understand the significance of the issue, you have to realize why encryption exists in the first place.

Given the ease with which digitized works can be spread and reduplicated and transmitted to potentially millions of unauthorized users, there was a strong need to protect author interests by using technological measures to prevent unauthorized access and copying of these digital files.

In addition, and based upon international treaty imperatives, participating countries are required to provide adequate legal remedies against defeating or circumventing those encryption measures.

I am not aware that the treaty imposes any obligation to make the technologies used by one company compatible with another. So, if the French legislation, as enacted, requires 'open' systems or ones which require sharing of the encryption and decryption protocols among various manufacturers of devices and software, there is certainly the potential to expose that technology to unauthorized intrusions/access.

By doing so, you invite the very risk that the technology and companion laws on anti-circumvention were designed to prevent- widespread, unauthorized access and copying of content.

TMO: Currently, music purchased from Apple's iTunes Music Store isn't directly compatible with every player on the market. The same can be said for other services, like those offered by Sony and RealNetworks. How viable is the idea that any digital music device can play DRM-protected songs, regardless of which online store they are purchased from?

Hart: I suppose, from the consumer's point of view, they would like to be able to play the tracks obtained from iTunes on other devices and/or use their iPod to play tracks obtained from sources other than an iStore.

In theory, that's great. But, in practice, it is problematic for any number of reasons. For example, if I release a song via a secure system with the knowledge that its further copying is subject to paying me royalties, the approach works. But, if the "secure" system is no longer secure, because a law says that whatever content is made available on it also has to be playable on other systems, which may or may not have any security, the whole concept of security is lost. It's like locking the front door, and leaving the windows open.

TMO: How do you expect companies like Apple, Sony and Microsoft - all of whom have their own proprietary copy protection technologies - to react to the law? Are they likely to comply, take some kind of legal action to protect their copy protection schemes, or simply pull out of France?

Hart: One obvious answer would be to make fully compatible systems. I don't know what the anti-trust law issues are, but assuming that some industry 'standard' could be adopted -- that would be the easy way, in theory, to deal with this issue.

Of course, that means that every manufacturer of an MP3 playback device might have to sign on to a technology license and pay a royalty for use of a technology. And then, the hardware manufacturers will complain, right?

Right now, I suppose one of the "selling" points for the various technologies is not only how secure they are, but how flexible they are to change and updating, with the addition of features. I don't know that if there is one worldwide compatible system whether that can be possible - perhaps it means some device that acts as an interface between different systems - but, without getting out of my depth, technologically, I think we still have one fundamental problem: If the device is going to output to another device which does not implement a protection scheme, we are again leaving the windows open while locking the door.

TMO: What about throwing more technology at the issue? Do you see an opportunity for software developers to create technologies that are compatible with competing DRM schemes?

Hart: There may some answers in open-source technologies which keep part of the encryption secret, and part of it open for others to use. That might mean that you could download the software to play the song on your other device, but the device would still require some recognition or payment before it would allow you to play- and if it doesn't we are back to the same problem, aren't we?

TMO: Earlier you mention France's international treaty obligations. Can you elaborate on that?

Hart: It is theoretically possible that if France is violating its intellectual property treaty obligations that it could suffer trade consequences through official channels. I had this experience in a matter I worked on in a Scandinavian country, which - we said, and the US government agreed - was not living up to its intellectual property treaty obligations. As a result it was listed on a USTR Watch List, which is not a good thing for a country doing business in the international market.

TMO: Piper Jaffray financial analyst Gene Munster speculates that the new law will have little impact on Apple. Is he right, or is there big trouble ahead for Apple?

Hart: I think the issue may focus on Apple right now, but it is a "tip of the iceberg" problem for DRM generally. Every content owner and supplier has to be concerned about this, not just in reaction to the French step at issue here, but in the larger sense of how it can make its content available to the broadest audience possible, yet not put that content at risk to the digital duplication nightmare.

Observer Comments

Show: Subjects Only | Full Comments
Close Name:Al Swearengen Posts: 339 Joined: 10 May 2005
Subject: I wonder

I just happened to be wearing my tin foil hat this morning because I think my neighbor is trying to hack my brain waves with his ham radio antenna. Anyway, being well protected from outside influences I suspect a conspiracy on the part of of the music/video industry who are really behind this bill.

However I can see a lose/win-win/lose situation here.

If DRM is removed then the music industry loses, but they can make up for it by forcing a price increase and blame it on piracy. Those of us who are honest enough to purchase music will win because we can play the music/video on a number of devices, but we will lose because the cost of music.

Okay, enough fun. I got to get to work.

View Name:Guest
Subject:
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Subject: What's so hard to understand?
View Name:Guest
Subject: Typical of the French
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Subject: Typical of the french?
View Name:Guest
Subject: MICROSOFT and REAL are BEHIND this!
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Subject: The dissolution of property rights
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Subject: Anonymous Comment
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Subject: Open DRM
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Subject: The underlying problem
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Subject: DRM is Bad and Totally Illegal
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Subject: DRM is gonna be a real problem
Close Name:Small White Car Posts: 1950 Joined: 02 Jul 2004
Subject:

Quote
Guest wrote:
DRM in all it's forms is illegal becasue it prevent the comsumer to fully enjoy the content he PAID FOR.


LOL

Nice try. Buying a CD does not give you the right to use that music in your movie.

Buying a DVD does not give you the right to play it in a theater and charge people to watch it.

Buying a book does not give you the right to photocopy it and sell the copies.

EVERY type of media has restrictions, whether or not there is DRM on it or not. Paying for it does not give you the right to do whatever you want with it.

Not that I'm defending DRM software...most of it is too restrictive. But the idea that you have the right to do WHATEVER you want is just wrong.

Close Name:Intruder -   TMO Mac Specialist Posts: 2923 Joined: 07 Jul 2004
Subject:

Everybody keeps talking about "Fair Use Rights" and "Fair Use Laws" and this is against "Fair Use Laws."

Here is the only "law" governing "Fair Use" in the U.S. that I can find. It is part of the copyright act, Title 17, section 107, and it is only applicable to the US.:

Quote
§ 107. Limitations on exclusive rights: Fair use38

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


I'm still trying to find the part that says you can do what you wish with copyrighted material you have purchased. Haven't found it yet.

Close Name:greybeard Posts: 16 Joined: 07 May 2004
Subject: The French

Spiteful, cowardly lazy slime, and they have been for a loooong time.

Close Name:Bosco Posts: 999 Joined: 03 Jun 2002
Subject:

Quote
Intruder wrote:
Everybody keeps talking about "Fair Use Rights" and "Fair Use Laws" and this is against "Fair Use Laws."

Here is the only "law" governing "Fair Use" in the U.S. that I can find. It is part of the copyright act, Title 17, section 107, and it is only applicable to the US.:


Forget facts. In the immortal words of Ronald Reagan, "Facts are stupid things.". This debate is all about what we feel we should be able to do since the greedy musicians all make millions of dollars on concert tours and selling their t-shirts. The music should be free, or if not free, then we should have the option of paying what we feel it's worth. I don't see why if I get tired of a song on a CD in a day, I should have to pay $1.99 for it. That's ridiculous. I bet those communists at the RIAA would sell their own mothers to keep me from sharing the music I love.l

View Name:Guest
Subject: Enough with the French bashing already...
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Subject: Ass about head
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Subject: Setting the record straight
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Subject: Windows Media video?
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Subject:
Close Name:LaurieF -   TMO Forum Mod Posts: 3497 Joined: 15 Jun 2001
Subject:

You'll find on further investigation that this is incorrect - for example, Sony is a competitor of Apple's (it's a matter of degree, of course, but a competitor it is), and the proposed law will apply equally to it, and any other company that has a proprietary DRM attached to its music.

Close Name:otaojones Posts: 157 Joined: 07 Aug 2001
Subject: subscription plans are the problem

lets face it you can burn a cd and then re import any tunes you want from anywhere you get them just by dragging the aiff files into i tunes amd letting it reconvert it into a mp3
rental plans like googles and napster (own nothing have everything) are the monkey wrench in that modus operandi supposedly i-tunes restricts you to 5 cd copies of any play list from the music store but i have never had i-tunes refuse to convert an mp3 or 4 to an aiff "on the fly"
I'm not sure but i do not believe the aiff format carries the restrictions forward. I always add a "bonus " track to any playlist so i can change the list if i hit a burn limit
you would have to "authorize" a cd burned from an i store purchased album if you tried to play it on your buddies mac (that has never happened to me). only an idiot or a politician would not be able to figure out how to get any music onto his i pod that could be burned to a disk. any fool who would pay good money to buy music he can only hear at his desktop or worse pay for cellphone minutes as well as for the song to "stream" or download will not be saved from himself by either the French legislature or that of any other country. if a man uses a zerox machine to copy the latest harry potter book does zerox have to stop selling copy machines in that country?or worse publish the plans and specs for the copier so the competition does not have to hire an engineer? this is a tempest in a teapot and the next level of french government will quash it if jobs sends them all a pod and they see that in fact they can get their music from where they want it to their pod .you would think the way the press spins it that the only way to get a song on your i-pod is to buy it from the apple store.
The thing i want to know is why the movie and tv companies don't realize that i am waiting to buy back episodes of "paladin" and just like us old geezers forked up the cash to replace our old buffalo Springfield albums(too expensive to put on the shelf for limited local market but sells a load world wide with no physical disk) there's a gold mine in the old cans on their stock room shelves. copy plans are stupid anyway because in order for us to hear the song it has to go "analog" at some point and can be redirected and re digitized. Apple is smart keeping the songs too cheap to steal jobs is right the record company's are "greedy" and gates and his crowd (larry ellison included) dont get that we humans have enough monthly bills with gas electric and cable already we don't want to be a digital renter class for applications or music.

View Name:Guest
Subject: The dissolution of property rights
Close Name:tthomcarl Posts: 4 Joined: 24 Mar 2006
Subject: Who needs the French market?

From what i've read the French account for less than 2% of the iTunes market. Apple should shut the French iTunes store and let the French law makers suffer the outrage of their voters.

View Name:Guest
Subject:
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Subject: You cannot standardise security
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