Parts of French 'iPod Law' Struck Down

idobi writes "Parts of the French 'iPod law' have been struck down. The French Constitutional Council found certain aspects of the law to be troubling and a violation of copyright... not the copyright of artists, but companies' copyright of their DRM software." From the article: "In particular, the council eliminated reduced fines for file sharing and said companies could not be forced, without compensation, to make music sold online compatible with any music device. The law, which had been approved by the French Senate and National Assembly last month, was brought for review by the council following the demand of more than 100 members of the National Assembly. The council's review of whether the law fits within the French Constitution's framework is one of the final steps before a law is promulgated. Now it could take effect as altered by the council, or the government could bring it once more before the Parliament."

Comments

Dropping the other shoe...

[__aaclcg7560]

The fact that DRM might by copyrightable seems disturbing. I'm not sure if this is a good thing or a bad thing. Although I'm sure the lawyers will be happy enough to make money trying to figure that out and not anytime soon.

Re:Dropping the other shoe...

[irtza]

DRM exists as software and should thus be afforded the same rights as other software. What the French gov't could have done is something similar to what Europe did with the wireless signals. Propose a mandatory format for sellers of digital music to use. This would not limit companies or peoples ability to write and protect their own formats, but it would essentially force the hands of manufacturers to use this format in France. It would break any would be monopoly. Part of the role of government is to foster trade and communication. Allowing the formats to be dictated by corporations essentially removes this power from the government and hands it to a private entity. Its the same difference between forcing MS to make the word file format open or mandating that word processors be able to save and open in a standard format. The first infringes on the rights of MS while the other gives MS a choice to comply. Stealing the works of a monopoly whether it be Apple, MS or IBM is not the best way to do things because it does discriminate. France should have set some sort of standard for the exchange of digital music and all this fuss would have been avoided.

Re:Dropping the other shoe...

[a16]

The fact that DRM might by copyrightable seems disturbing.

Does that mean I can pirate DRM? How long before rights management has it's own DRM. And then we need DRM for the DRM of the DRM :)

Re:Dropping the other shoe...

[Trurl's Machine]

What the French gov't could have done is something similar to what Europe did with the wireless signals. Propose a mandatory format for sellers of digital music to use.

Not that simple, I'm afraid. DRM is not a format, it is essentially a way to handle encryption keys. Should the government choose - say - AAC or WMA as the mandatory format for online music sellers, it would still not ensure interoperatbility. The problem is not in the fact that iTMS sells AAC files, the problem is in the way they are encrypted and in the way the encryption keys are distributed. I can imagine one potential way to ensure interoperability - Apple (and other vendors) could be legally obliged to issue keys to vendors of other portable players. Just as the iPod has its "own" key repository, I think in theory - say - Creative could have a similar repository on their players. I think you could imagine a law that would require every vendor of DRM-encrypted multimedia to deliver keys to any bona fide player vendor. Such a law would satisfy both the major music corporations and the player manufacturers (not to mention us the users, proles of the digital age).

Re:Dropping the other shoe...

[tambo]

The fact that DRM might by copyrightable seems disturbing.

I share your concern, but not quite the way you put it.

Modern versions of computer-based DRM are simply software implementations, and are completely copyrightable under any modern body of copyright law. The philosophy here is that every batch of code is an "expression" of the underlying ideas, and that "expression" should be protected against unauthorized copying, derivation, etc. No real surprises there.

(Aside: I happen to disagree vehemently with this notion. I believe that software needs some kind of copying protection, but I don't buy this line about "expression" for most software works. But that's a discussion for a different thread.)

Also incorrect is the comment in the summary that the iPod law somehow violated "companies' copyright of their DRM software." That's completely wrong. The issue has nothing to do with the copyright over the DRM software. Is anyone "copying" the DRM software? Is anyone "deriving" it, or "publicly performing" it? The article makes no reference to the DRM software. In other words, the submitter is wildly off-track in mentioning it.

Fortunately, the submitter did choose the right buzz-clip to describe the meat of the issue: "[T]he council eliminated reduced fines for file sharing and said companies could not be forced, without compensation, to make music sold online compatible with any music device."

Now, here's what's wrong with that, and here's why you should be troubled.

The iPod law "forced" no one to do anything. Apple to take any action to maintain compliance with French law, nor was it threatened with criminal penalties for not opening iTunes to other MP3 players. Apple could have responded by doing nothing, and the law would have been A-OK with its inaction.

Rather, explicitly permitted users to engage in format translation - in order to transfer their iTunes music to a non-iPod MP3 device. If you want to use the word "force," then the law merely stopped forcing users to follow Apple's business model. As a consequence, Apple may have felt compelled to change iTunes in undesirable ways for its own business reasons, but that's completely different from a "forcing" law.

The disturbing thing here is the French Constitutional Council's summary of this law. By using the term "without compensation," they're characterizing it as an uncompensated governmental taking - a limitation of the copyright over music sold via iTunes. That's completely bogus.

Copyright is a property right offered by a government. Artists only enjoy the rights associated with copyright because the government provides them; no one is "entitled" to any particular right under copyright. In other words, government is free to extend or restrict the scope of copyright as it sees fit. Even under the U.S. Constitution, artists are entitled only to have some form of copyright protection available; they have no right to any particular form over any other.) Also, copyright law is a "social contract" between artists and the public - which the government should have very broad power to define, and adjust as necessary.

A useful analogy here is zoning law. You have a strong property right to the use of your land. However, a local government may restrict your use of it through zoning law - it may even re-zone your land to declare your current use illegal. This modification of your property rights is not a "taking." (Village of Euclid, Ohio v. Ambler Realty Co.) You are not due any compensation. Rather, your property rights as a whole are protected from uncompensated seizure, but some specific details of your property rights are subject to state law.

Now, why is this troubling? Apparently, the French Constitutional Council has exercised its power to declare a law unconstitutional on a very flawed understanding of intellectual property law. The likely basis is political pressure: it sought to redress the per

Imprisonment for copyright infringement

[Quiberon]

Is 'imprisonment for copyright infringement' something the state does on its own account, or is it something that some private individual or corporation asks to happen ?

Would Sam Palmisano now be in fear of time in Sing-Sing if SCO won their case, if this kind of law held in the USA ?

Re:WTF?

[Quiberon]

Well, no, but apparently there is a right for all to be equal before the law. And if they make a criminal offence of 'distribution without permission' (which seems a pretty stupid criminal offence, to me, but then I'm not french), then the punishment looks like it has to be a function of how many you distributed, but not how much money you got paid.

Mod article -1 Uninformed, Completely WRONG

[A.K.A_Magnet]

OK, I'm used to it now. It never was "iTunes Law" for starters (ie, it was not focalizing on iTunes, iPod or iPod at all), but well... I'm trying to reply fast enough so the average Slashdot reader will know this article is full of shit, just like the whole law. The fines aren't reduced, they just say you can fine someone for "stealing" someone's work, so it's back just as before assimilated as counterfeiting (3 years of jail, 300kEUR of fines max). They also removed each and every exception to DRM circumventing (no interoperability exception, and that's bad for F/OSS here in France -- yeah, VLC is a french video player and they are pretty pissed). This law (badly transcribed from the EUCD european directive, which is itself the European DMCA) is actually worse than the DMCA. The good news is the Government is pretty fucked up too (they wanted to fine downloaders while avoiding to alienate the 10M french downloaders), and that it's actually such an authoritatian law that it won't last long (the next year, we'll have a new President and Government and if they want to win the elections, they'll have to promise to remove this piece of shit). This Government is so fucked up and corrupted anyway, nobody here is surprised.

Re:Mod article -1 Uninformed, Completely WRONG

[A.K.A_Magnet]

*grabs another beer*. I'll take some time here to reply to myself and try to be clear about why the article is uninformed and give some more thoughts on the DADVSI law ("Droits d'Auteurs et Droits Voisins dans la Société de l'Information", roughly "Copyrights in Information Society"; we call it the DAVDSI code ;)).

The EUCD, European Copyright Directive, is the European implementation of the '96 WIPO treaty (asked by the US because they couldn't pass the DMCA without alienating the EFF & co). So they went to the WIPO (World Intellectual Property Organisation) and got what they (= RIAA/MPAA/BSA/<insert your favourite bitch here>) wanted. Then they passed the DMCA in the US and were happy (and obviously, the average /.'er wasn't).

The problem is, European Union countries signed the treaty too (as they are WIPO members, and that the copyright works in a way that if you want that other countries enforce YOUR copyrights, you'd better enforce them. One could see the process as some kind of blackmail..). So the European Union creates the EUCD, but keeps it vague so the transcriptions in the member states law's mileage may vary (often referred as "TTITMSLMMV"). For example, the Belgians have a fairly good EUCD-based law. I guess the Swedish will certainly soon have a correct EUCD-based law as the Pirate Party seems to have a large success and public attention.

We have an horrible EUCD-based law. The so-called "Culture" minister, Renaud Donnedieu de Vabres, has been outrightly lying during the whole process of amending the law (the Parliament stage). He declared numerous time how the law was F/OSS friendly, and that interoperability was a key point of the law (that's what the article says, too). Both were already very weak in the law (which is insecure, as it's badly written and has many inconsistencies). They are now completely gone. Some amendments were proposed by our local RIAA/MPAA (SNEP, SACEM, etc) while others by private companies (Vivendi); one of them was called the Vivendi amendment (DRMs made all-powerful) even in the Parliament by MPs! It was adopted. There are no exceptions: not for accessibility (blind people can't get the text of a DRM'd e-Boook), not for research (it's illegal even in universities to study DRM security and circumvention), not for backup, etc.

Is it the Constitutionnal Council's fault? Nope, certainly not. It is definitely the rapporteur's (who is a bastard MP from Hell) and the Government's fault. They abused democracy the whole time. The debates were streamed online so lot of people (including me) got to watch how they didn't listen to the opposition, didn't care, and plainly lied. The Council's role is only to rule if the law is conform to the constitution or not (and if the procedure was following the rules, and the Government took great care of abusing the system while respecting the rules). Yet, pretty much everyone considers the law as a failure, may them be artists (who don't want to see their fans go to jail), software programmers, researchers, librarians (who want to backup DVDs), and the general public. Pretty much everyone, except our local RIAA and MPAA. Great.

If you were thinking coming to France because of the GPON, you should reconsider. But whatever happens next (whether the law will be applied or not, it's still not decided), it won't last long... or so I hope.

Re:Further implications(?)

[A.K.A_Magnet]

Not only they will reveal the names and everything, but the law allows the actual and non-oriented spying of the users. They will try to catch as many people as possible, as a deterrent to file sharing. I don't think our ISPs will make their life easy though, as many don't want to be part of this grand evil scheme. Our judges are against this law too, and will give the minimal fines to filesharers who don't profit by reselling. The whole thing doesn't seem really applicable anyway. It's such a mess, an evil mess, but such a mess that only a few poor students or kids will get caught and will pay the hard price for our Government's stupidity/fascism. And the legalization of P2P was voted by the Parliament at Christmas, but our Government used underhand tactics to cancel it. To sum up, it is unapplicable, and there are many different views, so I hope/guess/think it will be abolished next year.

Everything you wanted to know about DADVSI...

[A.K.A_Magnet]

... but were too afraid to ask.

Double Standard

[DesireCampbell]

I was very excited when I first heard that Apple would be treated in a similar way Microsoft is being treated (not 'the same', to a lesser degree but similarly). Does apple have a "monopoly"? In online music downloads and music players, yes. Are they being "anti-competitive"? Yes, iTunes and iPods are joined at the hip. So, are they going to be force, like Microsoft, to open up and give instructions on how to interact with their software (Microsoft is being forced to do very similar things with their server software)? Ye- no? Well, are they at least being fined like Microsoft is? No? They might actually get paid for this?

So, Microsoft makes online-software that rivals can't interact with. They get fined MILLIONS of dollars, and are forced to help rivals.
Apple makes online-software that rivals can't interact with. They get.. nothing yet? They might have to help their rivals, but if they do they might get paid by the government?

What's the definition of 'double standard" again?

A bad law made worse...

[Anonymous Coward]

But the real culprit is the government, not the constitutontional council.
For instance the exception for interoperability was struck down not because such an exception would be inconstitutional, but because the meaning of interoperability was not properly defined in the law (in France laws are not open to interpretation, so if you introduce a new concept, you must define it.) And the reduced fines were struck down because they were defined as a special regimen limited to peer-to-peer, excluding e-mail for instance, making the law unfair. But I'm afraid the government got so bogged down on this law that it won't even bother to try to make it conform, and leave it as ultra-authoritarian as it became. In practice, this will probably mean that nobody will be pursued for peer-to-peer exchanges: the intent of reduced fines was to allow for a simpler procedure, to sue hundreds of users, but without this one would need a fludge fledge trial.
By the way I really wonder why this is in the Apple category, the connection was always tenuous. This should be YRO!

5 years and 500 000 euros - Ouch.

[mad zambian]

There is an interesting take on this regarding P2P and OSS here:
http://soufron.typhon.net/spip.php?article150
Summary:
OSS bad
Fair use bad
Copying very bad
P2P very very bad
Penalties for same, insane.
Is it just me, or is the world going completely nuts? 5 years and 500 000 euros? Nuts.

Forced to share, but with whom?

[posterlogo]

I think you could imagine a law that would require every vendor of DRM-encrypted multimedia to deliver keys to any bona fide player vendor.

Ah, but there's the rub -- who's a bona fide manufacturer? Every chump and competitor who comes along? How about Mr. Knock-off Manufacturer who would then have the "keys" to your entire customer base? What about the small guy? How small is too small? So many issues involved when you're forced to share your technology with anyone who asks, but not to just anyone (because then that would just enable anybody to defeat the DRM essentially). It seems like the simplest solution here is to maintain the status quo but not prosecute DRM-stripping or -defeating utilities for personal use.