Whats wrong with the French?
Articles 13 and 14 of the law introduce a variety of criminal penalties for those working around DRM technical measures:
- A fine up to €3,750 is applicable for those who knowingly work around a DRM technical measure for reasons other than research, if this is not done using means procured from others.
- Prison sentences up to 6 months and/or fines up to €30,000 are applicable for those who supply others with means to work around technical measures, or who knowingly propose such means.
- Lesser fines will be subsequently introduced by an executive decree.
However, none of these penalties apply when the purpose of circumvention was interoperability, computer security or research. This last clause, exempting circumvention from penalties when it is done for certain purposes, was kept by a narrow 11-10 margin in the Senate.
The initial draft law was heavily criticized for the vagueness and wide scope of the anti-circumvention clauses. It was feared that:
- These clauses could potentially outlaw any free software capable of reading DRM-using formats (music, video, or even text content); the fear was that free software implementing DRM would be construed to facilitate circumvention. Designers of software knowingly facilitating circumvention would, with the initial draft, face felony charges of counterfeiting with maximal penalties of a 300,000€ fine and/or 3 years in prison. Free software advocates thus concluded that the law would have a chilling effect on the development of free software in France, since any modern desktop system is supposed to be able to read music and video content, and the designers thereof would not be sure whether they could face felony charges.
- These clauses would allow designers of DRM systems to have competitors prosecuted by claiming that these competitors' systems facilitated circumvention of DRMs. This would, in effect, create a new kind of intellectual property, besides copyright and patents, while the purpose of the law is to protect the copyright of composer, artists, film-makers etc. and not grant new legal protections to DRM companies.
- These clauses would tie people to the provider of the music, since the DRM system of a music provider would only work with the players from this provider. This would in turn be an annoyance to customers, since content playable on one device would not be playable on another.
- The clauses would prevent investigation of possible security lapses in DRM systems, such as when Sony's Extended Copy Protection system was found to create computer security problems.
"I can explain free software in three words: "liberté, égalité and fraternité", he said. Freedom, because free software gives everyone four freedoms unavailable with proprietary software; equality, because it gives everyone all the same freedoms; and brotherhood, because everyone belongs to the same community of interest, he said.
2. the publisher of such software.
1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
2. Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,
any effective technological measures.
3. For the purposes of this Directive, the expression "technological measures" means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC. Technological measures shall be deemed "effective" where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.
Article 7 of the Directive criminalizes publishers:
1. Member States shall provide for adequate legal protection against any person knowingly performing without authority any of the following acts:
(a) the removal or alteration of any electronic rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works or other subject-matter protected under this Directive or under Chapter III of Directive 96/9/EC from which electronic rights-management information has been removed or altered without authority,
if such person knows, or has reasonable grounds to know, that by so doing he is inducing, enabling, facilitating or concealing an infringement of any copyright or any rights related to copyright as provided by law, or of the sui generis right provided for in Chapter III of Directive 96/9/EC.
2. For the purposes of this Directive, the expression "rights-management information" means any information provided by rightholders which identifies the work or other subject-matter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information.
3. The first subparagraph shall apply when any of these items of information is associated with a copy of, or appears in connection with the communication to the public of, a work or other subjectmatter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC
The French anti DRM circumvention law provides sanction in the form of (wikipedia):
- A fine up to €3,750 is applicable for those who knowingly work around a DRM technical measure for reasons other than research, if this is not done using means procured from others.
- Prison sentences up to 6 months and/or fines up to €30,000 are applicable for those who supply others with means to work around technical measures, or who knowingly propose such means.
- Lesser fines will be subsequently introduced by an executive decree
Let's not forget that international law recognizes jurisdiction in rem. That means, it is possible that a programmer or a publisher that design a DRM hack program in a state where it is legal, to be captured when he is enjoying his holiday in Paris, as what he did in his home country constituted a violation of French Law.
Sometimes a DRM might be very disturbing and gone too far. An example of this is the last Sony XCP scandal. At this scandal, Sony put a rootkit, a kind of registry-cloaking tool usually used by malwares. An infection of rootkit without the computer owner's consent is a form cybercrime. Well, Sony did that with some of its CDs. This scandal was revealed by a blogger when he run a rootkit analysis on his PC.
One of the loophole in both EC directive and the French IPR Law is that, a DRM circumvention tool can be "actually" OK if it has a function other than a mere DRM hacking tool. So, it could be "legal" for example to have an anti-virus tool that can remove DRM that uses rootkits ;)* (See, Article 6.2.b. of the Directive ).
The debate will hovers around the issue of what is actually a DRM remover software and what is not. Pro DRM lawyers might said that when purchasing the work, a buyer is deemed to have consented to the DRM mechanism in his computer. However, this argument may not be valid given the vast spectrum of DRM mechanism. Thus, in order to obtain a valid consent from a consumer, a publisher will have to disclose what kind of DRM it uses. But the problem is, if the DRM mechanism is disclosed, then the system will no longer be effective in doing its job as people already know how it works. So, it is actually the possible flaw in DRM system itself that contributed to this loophole.
Anyway, DRM is currently becoming a new kind of intellectual property law. The discussion on this new DRM Law will not stop here. One thing for sure, DRM would be first ineffective and second destructive if it is applied to Molecular Nanotechnology. Effects of DRM on molecular nanotechnology would be (1) larger nano divide between MNT and non MNT states and (2) monopoly of nano design products by large nanotech companies. We really should have more discussion on what will happen if DRMs are applied into MNT.
I cant find the english version of the law, so I am unable to analyze it in details.
* This article is multi interpretable. To what extent is "limited commercially significant purpose or use"? It is therefore possible to cloak an anti-DRM software using an anti-virus software.