The French Parliament is considering a law that would force music-lockware companies like Apple and Microsoft to license their anti-copying software to other companies, so that customers who bought crippled music could play it on other vendors' players.
This is a good step, but for me, it leaves the big question hanging: will Apple and Microsoft have to license their players to free and open source software authors? The problem is that anti-copying software always comes with a licensing condition that requires implementors to design their players so that users can't modify them. It's like requiring everyone who licenses your internal combustion engine design to weld the hood shut.
Free and open source software (FOSS) — collectively authored programs like GNU/Linux, Firefox, Sendmail, Apache and VLC — has proven itself to be an important new way of producing valuable goods and services. From Amazon to Google, from the US military to the Mac OS, everyone who uses computers relies on FOSS to keep them running. What's more, FOSS upsets the dominance of incumbents in the marketplace, letting new entrepreneurs, non-profits, individuals and educational institutions compete with entrenched giants.
But the cornerstone of FOSS is that it should be modifiable by its users. Even though most of us will never write a line of code (no more than most of us will service our car-engines), the ability for all users to choose to understand, modify, improve upon and distribute the software they use is fundamental to FOSS.
Now, given that all anti-copying software requires that users can't modify it — because you could change the "don't copy this" routine to a "allow this to be copied" routine — and given that FOSS requires user-modifiability, how will the French Parliament resolve it?
An analogy: Apple iTunes is like a blacksmith who puts a toll-box at the head of a major road. Unless your horse is shod with his shoes, you may not pass. The French Parliament might require Apple to let horses wearing Microsoft shoes to use its road, and that's great — if you're on horseback.
But if you're in a car, you're screwed. FOSS is an entirely different industrial production system that Apple and Microsoft crippleware can't accommodate — will the French Parliament outlaw it because of that? Do the blacksmiths get full employment for life, even if it strangles the automobile in its cradle?
The French proposal would let music fans download music to their iPods from services other than iTunes or to rival players from the French iTunes store.
It could force Apple into choosing between making its service compatible with rival players or shutting down its online store in France.
Apple has so far declined to comment on the bill, which would also affect how its rivals run their music services.
(Thanks, Ben!)
Click MORE… below for tons of juicy commentary on this fight — who's screwing whom and how.
Update: Jeremie Zimmermann sends in this play-by-play from the French Parliamentary music wrangle:
* it will be voted on today by the first Parliament, and will head towards the
second one (only one debate in both, instead of two as would be customary — because of
an "emergency procedure")* in the current version of the text, the DRM vendors _have_ to give away the
"information necessary for interoperability" (defined as "the
technical documentation and the programming API needed to obtain the works in the
form of a file defined by open standards")* the cost for obtaining this information may not exceed
the logistical costs incurred in transmitting them (no complicated NDA/whatever
licensing by Microsoft!)* if the publisher doesn't comply, the court can order him to
do so, and fine him unless he does* whatever happens, you are allowed to reverse-engineer the code in order to
obtain interoperability* one element is that "one cannot forbid publishing the source code and the
technical documentation of an independent piece of software interoperating for
lawful uses with a technical protection measure."All those leaps forward were obtained after a loooong Parliamentary battle, and
a complete rewrite, in the last minutes of the debates, of Article 7 of the bill. They
are all (word-by-word!) adopted from requests from the EUCD.INFO initiative, an offspring of
the Free Software Foundation France, and were pushed by deputies (experts in
questions of security and industrial innovation) from the governmental majority, and backed by deputies from every political party (UMP, UDF, PS, PCF, Les Verts)Nonetheless, the rest of the text is completely awful:
* It shuts down the "private copying" right that is the French equivalent of American "fair use." It allows the administration to set a maximum number (all the way down to zero!) of copies that can be made, on a media-by-media basis.
* Therefore, P2P downloading, previously covered under "private copying" in some judicial rulings now carries a fine of 38€
* Two amendments were introduced by Vivendi-Universal that are real weapons of mass dissuasion against small software authors, especially authors of free and open-source software. These specify that software authors are responsible for how users use their software! If the software can be used to make copyrighted works available, then the author *must* implement DRM, or his program can be shut down.
Update 2: An anonymous commenter adds,
* The proposed law shuts down the "private copying" right, but continues to add levies to the costs of blank CDs, DVDs, flash drives and hard drives, to compensate artists for "private copying." So the French get charged for a right that they don't get to exercise.
* The "Vivendi amendments" punish "knowingly publishing," in any form, a device or software clearly aimed at unauthorized diffusion of copyrighted works with a maximum of three years in jail and 300,000€ in fines.
Although there is an exception for "software for computer-supported
cooperative work, for research, for exchange of files not protected by
copyright", the question is: Are ftp, web, email,
and irc programs protected by the exception, as they can clearly be used
to exchange protected files without authorization? Developers of such
software know that their work can be used for illegal exchanges and
still publish their apps, could they be sued for that?That question leads the (French) president of Mozilla Europe to ask himself:
"More seriously, is it worth it to keep contributing to development
of free software, which gives to everyone access to culture, to
communication and even to electronic commerce? Shall I ask to the
French volunteers to stop contributing to the project (…) because of
the potential legal threats?" [Translation from French]The French Ministry of Education has signed an agreement with some authors' associations. These agreements regulate how educators and researchers can use copyrighted works. Some of their provisions:
* Authors' associations should have full access to school computer labs and labs at academic research institutions so that they may check to ensure that no copyrighted works are used illegally.
* Research theses may not be published on the Internet if they contain copyrighted music.
* Only movies aired on TV and not made available for sale may be shown to classrooms.
