Joi Ito's Web

Joi Ito's conversation with the living web.


Looming French copyright law may not be as dire to Open Source as Cory Doctorow suggested on Boing Boing.

In one strongly worded post entitled France about to get worst copyright law in Europe? Cory said French lawmakers had "run amok" and were "subverting the lawmaking process" to pass a law that would hinder the development of Open Source and even ban some software.

It appears that the main source for Cory's assertions are statements by an Open Source advocacy group EUCD.

Kevin J. O'Brien, my colleague at the International Herald Tribune, contests that stance in an article on the law:

BERLIN: In the places on the Internet where free-software activists hang out, discussion groups are abuzz with news of the French government's plan to ban open-source software.
The problem is that there is no such plan. But the French do have some proposals to revise copyright law, changes that could affect programmers.

Any reaction to the clashing perspectives?


My understanding of the law, based on discussions with activists and lawyers in France who have been following it closely, is that the law requires software capable of being used to infringe on audiovisual copyrights to enforce DRM.

This means -- as the IHT article states -- that the system has to be designed to resist end-user modification (that is to say, it can't be licensed under open source licenses that encourage users to modify their software, that being the point of FOSS). That's because DRM systems seek to restrict what their own users do with them; if a DRM says, "Don't allow this file to be copied," it fails where the software can be modified by the user so that it ignores "don't copy" flags.

Moreover, the class of software that can be used to infringe on AV copyrights is much broader than P2P file-sharing programs (though a mandate on P2P would be bad enough): the class includes mailers, browsers, IM clients, Web servers, mail servers, FTP clients, message boards, blogging programs, etc.

The IHT article says that "there is no such plan. But the French do have some proposals to revise copyright law, changes that could affect programmers." Those proposals *are* the plan, though they are characterized by their supporters as being something other than what they are.

By characterizing this as a DRM mandate for file-sharing, the entertainment companies can disguise the fact that DRM mandates ban open source, and that the scope of such a mandate necessarily goes far beyond P2P file-sharing programs.

Finally, I didn't say that French lawmakers had run amok, I said that the entertainment lobby had.

One other thing -- the IHT article characterizes itself as having spoken to "both sides," but what it did was investigate the concerns of DRM vendors and free software activists.

There is a third side here: the entertainment companies. They have an uneasy relationship with the DRM companies, because when a DRM is chosen for broad use on entertainment technologies, that vendor gains substantial leverage over entertainment companies. Take Macrovision, whose DRM is mandated for use in VCRs; Macrovision charges the studios a fortune to add Macrovision restriction flags on their prerecorded media, and because there's no other mandated DRM technology in VCRs, there's no competitor of Macrovisions that the studios can appeal to to lower their prices.

Many observers have noted that iTunes is in a comparable position now wrt the music companies, who are seeking to raise the wholesale and retail rates for music files. However, given the proportion of the market that is controlled by Apple's proprietary iTunes DRM (which competitors can't interoperate with, for fear of violating the DMCA's anti-circumvention provisions; Apple already threatened legal action against one competitor, Real, who tried to release code to allow non-Apple DRM music on iPods) they don't have any leverage.

So when the IHT went to get the "full story" on this, they neglected to speak to the prime beneficiary of the legislation. They got the view of FOSS activists who are concerned that this is going to ban FOSS for a wide variety of applications (it will). They got the perspective of DRM vendors, who are concerned that this will give enormous bargaining power to their entertainment industry customers (it will).

But they neglected to speak to the entertainment industry -- for example, Ted Shapiro of the MPA in Brussels, or the head of IFPI France -- who are the prime movers behind this legislation. Instead, they spoke to a lawmaker who has clearly been influenced by the MPA and IFPI, who assured them that there was nothing to worry about.


Thanks for the direct response.

To clarify what you are saying from my non-technical perspective:

You are saying that this law will require all software capable of dealing with copyrighted material be non-changeable by the end user.

The further implication you mention is that even software dealing with email software - ie mozilla - would be restricted in amount it could modified by end users. Is that correct?

I am interested in details since I have been chasing up a lawyer whom I am told is charged with framing the law.

Finally, as for who is running amok in France, it is sometimes hard to tell these days! (Though the car burning in the suburbs has slowed down to the "normal" pace.)

"You are saying that this law will require all software capable of dealing with copyrighted material be non-changeable by the end user.

"The further implication you mention is that even software dealing with email software - ie mozilla - would be restricted in amount it could modified by end users. Is that correct?"

That's my understanding of it. Though I believe the law is specific to audiovisual copyrighted material (though there are very few programs that can transmit text/binaries and not encode AV materials as well -- the only ones I can think of are SMS servers and DNS servers, though even DNS has been used as a medium for streaming video. Bits are bits.

As to non-changeable by the user -- what they'll tell you is that it has to have DRM in it. What that *means* is that it has to be non-changeable by the users. IOW, the proposed statute doesn't mention user-modifications, it talks about DRM, which *implies* tamper-resistance.

Ok, so as you describe it, a handy translator in dealing with this law would thus be:

Audiovisual Material = Anything that can be sent via Internet. (bits are bits)

Digital Right Management = tamper-proof aspect that users cannot change, thus preventing further open source development.

I barely understand this in English, so am looking forward to speaking with the lawyer about it in French!

A small comment in passing. It is not only the French who are amending copyright law in a DMCA-like move, but all of the EU countries on the basis of a 2001 directive passed by the EU Parliament and the EU Council.

Thomas, that's a good translation key.

Anthony, France's proposed EUCD implementation far exceeds that which is required in the Directive -- it's a farcical wish-list of technology restrictions that the MPA and IFPI didn't come close to getting through the EuroParl with EUCD.

My belief is that this is teeing up EUCD II -- by creating "non harmonious" restrictions regimes, the entertainment companies establish a basis for forcing through a sequel to the EUCD to "harmonize upwards" to France's standard.

Provided the translation is accurate, this is severely disturbing to me.

First to recap Mr. Doctorow a little. Thomas, the wording of this includes a lot. Not just that "even software dealing with email software - ie mozilla - would be restricted in amount it could modified by end users. Is that correct?"

A few plain words examples would be -

  • No downloading of any A/V media over a web browser that didn't automatically include the copy protection.
  • No e-mailing, ftp'ing, Instant Messaging, cd/DVD burning, or basically doing anything with A/V media that doesn't automatically include the copy protection.
  • No writing of any code that deals with A/V without including the part that includes the copy protection coding.
  • The ability to fine anyone who writes a program even one that includes the copy protection and subsequently releases the source code - as that would enable others to remove the copy protection is they could themselves recompile the code - into a program without the copy protection.
  • Required monitoring of the servers to check tha these laws are being obeyed.
  • By enforcing any law that says you can't reveal the source code you are, in effect, saying that only programmers who write for themselves only, or programmers who work for the entertainment industry are allowed to write any program that deals with AV media. Were this to take effect there would be no such thing as an armchair programmer allowed in France.

    Which is why I doubt this can pass/last.
    A) It would probably start up a decent black market AV ring in France.

    B) I don't see what this does over and above current copyright law except criminalize a vast portion of the populace in an effort to get at a small portion (the career bootleggers).

    C) How could it be enforced across borders? Is it a crime to recieve "cracked" A/V from other countries? This is comparable to searching all incoming packages to France fo contraband items before deliveringthem to the French people. Uh, not gonna happen.

    D) Unenforcable in that it is easy to buy server space in another country or offshore. So making the content available legally really only requires a server change?

    Yes, people should contact their corresponding senators, but I doubt anything this broad reaching will pass, it is just good housekeeping to do so.

    Thomas - Your colleague doesn't seem to understand the Open Source movement with any degree of clarity. At the same time he is saying "The problem is that there is no such plan.", he is also saying "But the French do have some proposals to revise copyright law, changes that could affect programmers."

    In reading the rest of his article, It seems that the only evidence he has that this won't affect the Open Source movement - were it to pass - is an assurance from
    Senator Michel Thiollière, the main sponsor of the copyright legislation in the French Senate
    "I believe lawmakers will ultimately find the balance to protect the rights of artists and to preserve the best possible access for people who want to legally enjoy the Internet."

    Throughout his article he refers to "software makers" as if in the Open - Source movement these are automatically companies creating software and not individuals enjoying a hobby or passion of theirs. What is an armchair programmer to do when literrally years of his work go out the window because of this law?

    And what about this

    "The other would make software makers liable for damages from entertainment companies or artists even if their software were altered by criminals to perform illegal copying." - From the same article.

    What company or individual would risk this.

    Let me be clear what this means - Somebody - anybody reverse engineers my software to use creating illegal copies and I am liable for all of it. Not because I made the copies, but because I made the software.

    This is basically penalizing one group for the actions of another. Open source or not - this is unacceptable to commercial software makers.

    I'll be interested to see what other people think. But I can't see how this has a chance to pass as is. It is acceptable only to the entertainment lobby i.e. not to the people, the software makers, or the distributers. And completely unenforcable.

    We are reaching an age in which copyright law does indeed need to be completely reworked. Not attempted patches by interested parties to continue making money. Copyright is meant to be similar to a patent. Not for creating monopolies on content but to protect a product from being stolen before the original creator can make a decent profit. After that period ir is nothing more than a legalized monopoly.

    Any people in France care to comment?

    While I'm a big fan of Cory, and admire a lot of the work he's done, I gotta say I cringed over this Boing Boing post.

    Delwin Olivan is an 18-year-old Princeton student who is being extorted by the RIAA to the tune of $5,000 as punishment for being caught promoting music by sharing it on the Internet.

    'Extortion', 'promoting music'? Very loaded terms... Perhaps time to take a deep breath?

    OMFG! Cory Doctorow used hyperbolie in a boingboing post? What is the world coming to?!?! Whats next? Inaccurate posts on slashdot?

    I've said it before, I'll say it again, this sort of "activism" is exactly why I dont give to the EFF. If their most active mouthpiece comes off like a raving loon, I think that would be a waste of my money.

    You obviously didn't take time to read the comments that preceded yours.

    I'm not sure whether you read the english language EUCD summary on whats happening in france right now. France has to implement an EU guideline on copyright, but if its true what EUCD posted, it will be the most possible restrictive implementation of it in the whole EU and probably all around the world. It would be neither surprising (remember the cryptography laws before socialist government under Jospin?) nor impossible for the legislative/executive branch in France.

    Chris_B, Cory is why I no longer give to the EFF as well.

    How on earth will they enforce?

    What if I rename Pirated.Movie.XVID.PROPER.PiR473.avi to whatever.bsp, and then set my Quake server to upload whatever.bsp when that "map" is requested?

    OMG! id software did copyright enfringement! Send them to France and hang them from the tower!

    This is idiocy at a very high level. It will only make criminals out of regular people, and the criminals will allways be criminals. They just adopt their ways to get around new enforcement/detection.

    Let's see some laws that are aimed towards preventing heroin from entering Europe. That's time better spent.

    I've given to EFF in the past, and my website carried the "Coding is not a Crime" banner, but not anymore. My faith is lost. As with some other people here, it's because the people speaking for EFF simply don't care about anything but having their names spoken on the net.

    Too bad "Now go away, or I shall taunt you a second time!" dosn't work outside silly british movies.

    Frederik: Indeed, laws governing the Internet do seem a bit of a reach.



    The very big problem is actually that the ones that will (or not) pass the law HAVE NO KNOWLEDGE about what they are [m/t]aking decision upon.


    and no, they don't listen to their citizens. just like in many countries, the governement detached itself form the citizens, thus making the appelation "democracy" an abheration.


    But people with enough leverage (like you, Joy?) could possibly be listened to.
    (after all you are on the advisory board of many industrials, maybe you could be an advisory to thoses people that make laws they don't have a clue about ; for as it stand, these law makers _all lawmakers_ only listen to people from the industries)


    the big danger here seems that the lobby don't care if the law is not applicable, they just want a law be passed in their favor. Then they'll just apply the law themselves (history has demonstrated that many times mpaa riaa...) through bankrupting say that little student whom was tinkering with a search engine technology (rings any bell...?)