Introduction
On 21 March 2006, the Assemblée Nationale, France’s lower house of Parliament, passed a set of amendments to France's copyright law by a 60-40 margin (Assemblée Nationale 2006). The primary purpose of the legislation is to bring France into line with the European Union Copyright Directive (EUCD); France is one of the last EU countries to adopt the ECUD provisions into its copyright law.

This legislation has gone through many iterations and has included several controversial provisions that were ultimately abandoned, including one that would have established a licensing fee of a few Euros per month for unlimited downloads of online music. The bill that passed contained measures that would require interoperability among DRM technologies for purposes of enabling consumers to play content on a variety of devices and make private copies of it. The bill now goes to the Sénat (the upper house of Parliament) for further debate and a vote, which is likely to occur in May.

This bill is an attempt to provide more consumer choice in online content services and to prevent allegedly monopolistic behaviour from companies like Apple, whose iTunes online music service only works with iPods – which, in turn, do not work with online services that use different DRM technologies, like Microsoft's. The bill also contains a provision that criminalizes DRM circumvention, as required in the EUCD.

Interoperability required
Like most such legislation, this bill is ill-conceived; the Sénat should abandon the interoperability provision. The reason for this is simple: it would weaken any DRM scheme almost to the point of superfluity, and it would serve only to increase piracy.

The bill does not actually require that DRM technology vendors provide their own interoperability features. That would be silly: anyone with proprietary playback technology could come along and demand that Apple or Sony or Microsoft provide "interoperability" with it.

Instead, Article 7 of the bill requires that technology vendors make sufficient information available so that third parties can provide interoperability of online content services. This information includes technical documentation and APIs (programming interfaces). Under the proposed law, anyone could petition the French Justice Ministry to compel a technology vendor to provide interoperability information, and the vendor would only be entitled to nominal logistical compensation for doing so. Anyone who wants to provide interoperability services would be free to use such information, and it would be illegal to prevent anyone from publishing it.

The bill goes further (in Article 8) by forbidding content distributors from using DRM to prevent private copying, but only in certain cases. This provision addresses the controversy in France (as elsewhere in the EU) over the legality of copy-protected physical media such as DVDs, and some audio CDs, vis-à-vis consumers’ private copying rights in most EU copyright law. Article 8 appears to leave DVDs and copy-protected CDs in legal status, despite some recent French court decisions that cast their legality into doubt.

The interoperability provisions of Article 7 ostensibly make sense. As long as vendors make interoperability information available, it should be up to others to provide the actual interoperability, particularly third-party service providers. RealNetworks's Harmony service is an example of this (cf. RealNetworks2004). The Coral Consortium (cf. sources), an interoperability standards effort, is promoting just such a scheme. Apple, for example, could join Coral and plug into its framework (once it is defined, which is expected later in 2006).

Undermining DRM
But deeper analysis shows that the provision would actually end up undermining DRM.

In principle, under this legislation, anyone can ask a vendor for information sufficient to achieve interoperability. 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.

The only way to make such a law practical would be if DRM systems were completely redesigned so that their vendors could provide information that would promote interoperability without allowing for indiscriminate use of protected content. We know of no way to do this without requiring all vendors to adhere to a new set of standards, a nice example of which is the IDP-2 spec that is currently being finalized by the Digital Media Project (cf. sources), due for release in April 2006.

If this bill passes in its current form, then Apple and other DRM-based content service operators in France would have only one reasonable course of action in the near term, apart from flouting the law: to shut down all of their services. There may be no reasonable way for DRM technology platform providers like Apple, Microsoft, and Sony to provide the necessary "interoperability information" without significant changes to their technologies. This is especially true for Apple: the FairPlay DRM technology built in to iTunes has functionality that is bound up in the code for iTunes (on PCs and Macs) and iPod firmware, not expressed in APIs like Microsoft’s Windows Media DRM.

News coverage of this legislation has focused on whether Apple would shut iTunes down in France; Apple – while fiercely opposed to the legislation – has not commented on what steps it might take if it passes. But there are several other DRM-based digital content service providers operating in France right now, including Loudeye, WMI (MPO Online), SFR, and Musiwave, (under such brands as Tiscali, Wanadoo, MSN, Orange, and Fnac). These services are based on DRM technologies from Microsoft, Secure Digital Container (SDC) of Switzerland, and CoreMedia of Germany (using the Open Mobile Alliance DRM standard).

We believe that all of these service providers (together with their DRM technology suppliers) would be faced with a combination of increased costs of providing "interoperability information" and the likelihood of increased liabilities with respect to their agreements with content licensors. This would leave them little choice but to shut down, leaving piracy as the only way to obtain content over the Internet in France.

Bottom line
The market for online content is young and should be left to develop on its own without this bill, or similar legislation currently being considered in other EU countries (such as Denmark). Consumer choice is a powerful weapon as well as a highly worthy goal, as is DRM interoperability. But in this instance, legislation is a poor way to achieve such goals.

Sources

About the author: Bill Rosenblatt is president of GiantSteps Media Technology Strategies, a consultancy based in New York, USA that focuses on digital content technology issues for content providers and technology vendors. He is editor of the newsletter DRM Watch (http://www.drmwatch.com) and author of Digital Rights Management: Business and Technology (John Wiley & Sons, 2001).

Status: first posted 30/03/06; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=190