France, DRM, P2P, and the iPod

This is just a bunch of thoughts I have collected so far. I tried to research this relatively well, but I will be the first to admit that I’m very likely misinformed. If you have corrections, please email me details along with links to source material and I will edit as I can.

By now, everyone has read all about France’s partially passed proposed law to effectively make closed DRM illegal.

But it seems that few people have looked beyond the surface.

So far, all of the press has been about how this potential law is a serious challenge to Apple’s iPod and iTunes Music Store. Apple has even responded.

As with anything DRM related, BoingBoing has an article on this and will be collecting more information as this unfolds. Cory’s reaction is that this is “a good step”.

Good step? I’m not so sure. I have attempted to look a little deeper and see just how good it is. First, a brief bit of recent history.

In December of 2005, the French parliament accepted an amendment that would have made legal the free downloading of copyrighted materials from the Internet for private use. This would fall under the “private copy” concept in France which is very much akin to the eroding “fair use” concept in the United States.

Of course, the entertainment and software industry went completely ballistic in response to those proposed amendment. While the amendment survived the lower courts, it eventually died before becoming law.

In January, France’s parliament took a very different approach to the wording of the amendment after a bit of encouragement from the BSA, Vivendi Universal, and other media giants or corporate representatives. The end result was some of the strongest worded anti-piracy legislation proposed.

Click through to read on….

Now, in March, we are seeing a new version of the amendment that has been reworded again. The iPod/Apple/DRM/WMA dead horse has been flogged quite thoroughly and, as far as I’m concerned, is a distraction from the very nasty implications of the proposed — and now partially accepted — legislation.

The citizens of france would lose “private copy” as a right. Now, this right was already significantly eroded in late February and the amendment would effectively close the “hole” entirely. Under the amendment, a central agency would regulate DRM to ensure some amount of “private copy” capabilities, but the number of openly consumable private copies may be limited to zero. That is, you may be able to make a copy of a piece of media, but that copy may not be playable without effectively losing the ability to play the primary copy. Or something like that. The details are still up in the air. About the only thing that is clear is this amendment is not about “abolishing DRM” as some pundits really want to believe.

Beyond that, the aim of the amendment is to balance the the “elimination” (as far as I can tell, it is more government controlled “open DRM”) of DRM by making it a fine-worthy (and, potentially, prison-worthy) offense for downloading copyrighted materials without license to do so. Most of the articles indicate that the fine will be 38 euros. However, digging deeper indicates that the fine level has not been set and that there is discussion of fines ranging beyond 750 euros per “incident” where “incident” has not been well defined.

Finally, and perhaps the most damaging aspect of this law, is the implications for open source software development. Keeping in mind that the French government had previously lobbied to ban open source software (or something close to a ban), this shouldn’t come entirely as a surprise.

Specifically, the amendment would require developers of software that is intended to be used to disseminate copyrighted works to implement support for DRM or face potentially significant fines, including jail time. Of course, the definition of “intended to be used to disseminate copyrighted works” is quite vague and, as with all such legal definitions, it is nearly impossible to quantify the myriad unknown innovations that will be developed in the coming years. Given that it includes both P2P software and DVD playback software, it is clear that the interpretation net is cast wide.

As well, the law includes many addenda that are designed to limit the use of copyrighted materials in traditionally open roles. For example, significantly large limitations are placed upon the use of copyrighted materials in educational roles.

Now, the proposed law has only passed through the first phase along the way to becoming an enforceable law. Many proposed laws — some more and some less ridiculous than this one — have made it further without actually hitting the books as a ratified law.

Given the extremely contentious points of this particular proposal, I personally don’t believe this has a chance of hitting the books as written. But maybe it will.

Actually, from reading through the other rather extreme proposed laws that never made it through the process, I have realized I really don’t understand the process via which laws are made in France. In particular, it appears that passing through the initial parliamentary vote is not really a solid indicator of the long-term, or even near-term, viability of the proposed law.

In any case, I can’t see anything about this law that is a good “first step” towards granting new or protecting existing rights in the digital age.

Do you?

Why am I not surprised that Fox has it completely wrong? They have an article labeled “French Pass P2P Legalization Bill” tacked onto the same article as everyone else. The completely content-less article about Apple/iPod/France that everyone is using that doesn’t even contain a mention of “P2P”. As Red would say, “Dumbasses”.

12 Responses to “France, DRM, P2P, and the iPod”

  1. DAD says:

    If the media moguls would charge a realistic price for their products that would eliminate most of the reasons for pirating their products in the first place.
    charging $12.50 for a CD that may cost them only 11 1/2 cents is called larceny in my book.

  2. Ralph says:

    I’ve also had a completely different understanding of this issue. If you are right with the above, this law should be killed asap.

    Apparently, many people (including myself) have made their judgements too soon.

  3. Ralph says:

    DAD: apparently, the artist’s work is worth nothing to you, production and promotion costs also don’t count. Have you ever thought about the fact that it’s exactly this attitude that has led to the giant decline in music quality from the major labels during the last ten years?

    People don’t watch sales figures in absolute numbers, a number one hit is a number one. But it’s exactly the attitude you present here that has led to the major labels’ greed and the fact that quality does not count anymore in that business. Produce it on the cheap and sell it while they have their 15 minutes of fame. One-hit-wonders everywhere, especially here in Europe, people with no talent are pushed through casting shows and then forgotten soon thereafter. The artists share is

  4. bbum: France, DRM, P2P, and the iPod at soypunk says:

    […] Finally, and perhaps the most damaging aspect of this law, is the implications for open source software development. Specifically, the amendment would require developers of software that is intended to be used to disseminate copyrighted works to implement support for DRM or face potentially significant fines, including jail time. […]

  5. Scott Ellsworth says:


    I cannot agree. The artists and songwriters get a very paltry fraction of the money made from music in general. Prices of music to the consumer have gone up, while production costs have dropped. Heck – most labels in the US do not even pay artists the federally mandated royalty, as they ‘need to recover the costs of switching to the CD format’. Read Janis Ian’s site for details. DAD’s complaint that music is too expensive does not really come at the expense of the artist – I just do not see the labels suddenly deciding to give them a bigger share, even if the price charged increases.

    I confess, $12.50 does not bother me, but I refuse to pay more than $13 for a silver disc, and $10 for an electronic download if I can strip the DRM. (I am not sure what my DRM price is, but it seems to be lower than $10, as I have not bought any new ITMS music since HYMN stopped working. I do not share my library, or give away music, but I do not want to be unable to play it in the future.) I usually end up buying two or three CDs a week, as there is always something I want that is on sale for what I will pay.

    I am minded of the authors I know. In general, advances are small, and the typical author has to really sweat to get a book in publisher hands. Having done so, they get royalties according to a contract, usually written such that they will cover the advance. Why? Because if the royalties do not, then the publisher does not get another book, and they may be out some cash too. This is also why promotion costs are low for many first time authors.

    Contrast to the music industry – advances are large, relatively, which means that many bands never work through them, and are dropped like a hot rock. Further, very large promotional costs are paid by the label, which the bands are charged for. Not fun at all. In addition, the high dollar amounts at stake make most A&R folks amazingly conservative, which makes it very, very hard to find good new music.

    I note further that many record company executives and A&R folks seem unwilling to develop good talent, and they believe that the decay in music revenues is a crisis, as opposed to being the natural consequence of people finally having replaced their LP collections with CDs some years back. At this point, they need to offer something cool and new to get more revenue.

    So, if you really want quality to count, do not campaign for higher music prices. Campaign for greater revenue for artists, smaller advances, and smaller promotional budgets. This makes it easier for a label to take a risk on an artist, and for an artist to come in at a profit. Look at Derek Siver’s model at CDBaby – very inexpensive promotions, high returns to artists, and a fair amount of flow for all concerned.


  6. Ben says:

    I have to admit it did seem like a good thing, until you outlined the real proposals.

    I see there has been a response from Apple:


  7. DAD says:

    Ralphie Babe,
    u did not read my message. i said “media moguls” not artists.
    they r using their money to get the French to protect their greed forever.
    but, then again the French,are, well, the French.

  8. Ralph says:

    DAD: then you should have been a bit more elaborate on the issue at hand. You cannot compare the production cost of the media to the sales price. You may be basically right (and if you wrote more than two “sentences”, one might even understand what you are trying to say here).

    I just don’t like the mentality of bitching about prices. Free markets are quite easy to understand: if it’s too expensive for you, don’t buy it, simple as that.

    Scott: Right. I don’t advocate higher prices and I’ve seen that somehow the rest of my last comment seems to have been cut off somehow. I just don’t like people bitching about prices of whatever as a justification for wanting everything for free, and with music, movies and software, that often goes hand in hand. Our friend DAD did not really say much about what he really means, so one can only guess. However, saying that CDs can produced so cheap and that they still cost 15 USD or EUR or whatever and using that as a reason for downloading from a P2P network is quite common place, at least over here in Germany, and I just can’t stand that. The part that got swallowed by whatever (maybe it was even my own clumsiness – somehow…) basically contained a good part of the point you were going to make: one can only try to make a change by learning about new music. Buy from your small, local labels, go to concerts of some unknown band that you happen to like.

    While the small labels do not have _that_ much money, they treat the artists better in general. I used to worked for a company that makes software for record labels and I have seen that 80% of the music is produced by the small labels whereas the majors make 80% of the money.

    The majors either cherry-pick from the small labels and promote the artists to death while it lasts or they start the machine and produce a new band / singer / boy group / whatever, feature-complete with the desired image and the same old song material in some new variations.

    BTW, if you watch casting shows nowadays, you will discover that not only the labels are greedy. Imagine: 80 million Germans, and these days everyone seems to think that he or she is the undiscovered talent that the world has been waiting for. Poor bastards, those 0.00001 percent or whatever who finally make it get caught by the machine, are marketed to death with music nobody really wants to hear without any innovation taking place and forgotten soon thereafter. Making millions without any effort – just sing a bit and be adored by everyone – that sounds just too good to resist, doesn’t it?

  9. DAD says:

    i did not say”free” i am willing and do pay a “FAIR” price for goods.
    and it is my constitutional right to bitch, ask bbum.

    there, that’s my 2 sentences

  10. bbum’s weblog-o-mat » Blog Archive » Told ya so… says:

    […] I told ya so. […]

  11. bbum’s weblog-o-mat » Blog Archive » The French “iTunes” Law Redux says:

    […] These were all issues I discussed in some detail in a previous post. […]

  12. bbum’s weblog-o-mat » Blog Archive » French Law Redux Redux says:

    […] Unfortunately, I was correct. […]

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