If you follow technology news or music news (or both), you doubtless know of an amendment to a French on-line copyright bill that would make it legal to thwart the digital rights protection (DRM) software of the fabulously successful Apple iTunes/iPod system. The vote to adopt that legislation takes place in Paris today, and Apple has stated that if it passes, it may no longer offer French customers the ability to purchase music from its iTunes site.
This is pretty juicy news, and therefore most of the press reports have focused on the commercial consequences for Apple and other vendors if the law goes into effect. But if the vote passes, the new law could have a profound impact on the world of commerce and standards, extending well beyond DRM, or, indeed content.
The underlying politics, of course, are more protectionist than profound. The French are not fond of being controlled in any way from abroad, and have passed legislation many times in the past to protect everything from local industry to the French language. In this case, they are touting what they refer to as “economic patriotism.”
Notwithstanding any such jingoist motivations, the actual consequences of such a shift in rights could be very wide reaching. The reason is this: the gist of the law is that content cannot be held captive to a proprietary system. In short, content that one buys should be transportable to other systems, so that the purchaser is not faced with the choice of remaining the customer of a single vendor or abandoning her investment.
Of course, there is nothing unique about music, from a legal perspective. Why not movies and electronic books? And why stop with content one buys, and not also include content that one creates, including photos and documents?
While the effects of the law could be revolutionary, the legal significance of the legislation would be merely evolutionary. The reason is that it would simply be expanding an existing exception to the copyright laws as they relate to software rather than creating a wholly new one. That exception works as follows: normally, the law bars the use of a copyrighted work for any purpose other than those that are permitted by the owner of the software that licensed it to the end-user. One of the purposes that is always barred is using the product in order to reverse engineer it.
But under the existing exception there is a limited ability to reverse engineer solely for the purpose of achieving interoperability with other products. This right has been permitted in Europe for some time.
The new law would widen this exception significantly, however, to provide the right to reverse engineer not only for the purpose of enabling interoperability at the device level, but to liberate data as well.
As suggested above, the intriguing question that this raises goes as follows: having made this breach in a copyright owner’s rights, where does one stop? Would an end user have a right not only to transort content absolutely, but also with formatting and other useful attributes intact?
Imagine, for example, what this would mean for other types of content, such as documents, and for related products such as Microsoft Office (or any other office productivity software). Microsoft has already submitted its XML Reference Schema to Ecma as a commercial decision. But if the underlying concept behind the proposed French legislation takes hold, would Microsoft have really had any choice in the matter, in order to preempt a user’s right to reverse engineer?
A related question is this: who will decide how “open” (because that is what we are really talking about here) a product must be before anyone becomes entitled to reverse engineer it to make the content it creates or holds more accessible?
Where might this lead? Well, if the result is that a vendor must surrender the right to protect its content anyway, then it might as well seek the full benefit that standards can bring, rather than fight a constant, rearguard action against those that are challenging its degree of openness.
More cynically, it might as well try and control the standards process, allying with other vendors, to create standards that would be respected by the law as meeting the minimum requirements of interoperability. In short, a vendor might as well follow the classic military strategy of abandoning its more vulnerable forward defenses, and fall back to rally its forces behind a more defensible, if more limited, perimeter.
It will be fascinating to watch this story unfold. If the French law passes — and survives the inevitable court challenges — there is the possibility that other countries in the EU may emulate it. This would result in a dramatic rebalancing of the rights equation between content owners and content users — and, who knows — could spread from there.
But from there to where?
Well, why stop at content owners, and not speak of end-users generally, and to avoiding lock-in anywhere? Perhaps even in operating systems and microprocessor designs?
Now that would be a revolution.
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