French Law Redux Redux

Update & Corrected: The New York Times is reporting that parts of the French DRM Law have been struck down. Sadly, the Times labels it “the iPod law”. The real impact of the law is much greater than just impacting the iPod.

In particular, the constitutional council has ruled it unconstitutional to force a company to disclose intellectual property, including DRM specification(s) without that company receiving compensation. As well, the reduced fine structure for “file sharing violations” has also been eliminated.

In other words, the law is no longer relevant to any discussions of making content cross-device compatible.

Why? Because it would be impossible to come up with a “just compensation” figure that all parties would agree to. Such compensation would have to be based upon projected revenues, but — of course — the act of “opening the DRM” [really: communicating the DRM spec through supposedly confidential channels via the central controlling agency] would change the revenue in some unknowable fashion, thus rendering the negotiation process unbelievably complicated.

At this point, the law is nothing but negative for the french software industry and french media consumers. They lose. Completely.

BoingBoing finally dug up the goods on the new french law.

Sure enough, it is devastating to both fair use and open source developers.

Unfortunately, I was correct.

  • There is no DRM interoperability requirement. Developers — open source or incorporated entities — must seek prior authorization from a central agency.
  • However, the regulatory agency can demand that a company provide interoperability information to competitors in secrecy.
  • Gone is the structure of fines that effectively made violations into very expensive parking tickets. Instead, violaters will be faced with protracted legal cases that could yield up to 500,000 euro fines and/or up to 5 years of imprisonment.
  • The french equivalent to “fair use” (“Right to Copy”, if I remember correctly) is effectively eliminated.
  • Research or development into P2P or collaborative software technologies is now illegal, regardless of intent. Depending on interpretation, this could span to streaming media and/or standard protocols such as HTTP/FTP (I can’t imagine it going that far).

These were not last minute changes. The media companies got exactly what they wanted.

Why anyone was surprised by this is beyond me. Throughout this last draft, the law was, after all, called the Vivendi Universal Law.

While the final version is even harsher than prior drafts, this particular set of clauses has been present in some form or another ever since the last major rewrite earlier this year. I’m betting this is no longer the “good step” that Cory once claimed.

I know that many companies have programming teams in France. I wonder if this will impact said teams? Certainly, it has some chilling implications for some very popular software (VLC being one of the most visible).

Anyone care to comment as to how this might play out in the french courts? Also, how will the EU respond?

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2 Responses to “French Law Redux Redux”

  1. Dominique PERETTI says:

    Actually, that might be good news !
    It looks like the government wanted to satisfy the majors but on the other hand tried to soften the maximal penalties in order to make the law “more acceptable”.
    Basically, what the Constitutional Court said is : you can’t make potentially anyone a criminal and create a specific penalty for that crime. Be consistent.
    And I think it makes sense.
    But as a consequence, the law is now TOTALLY inacceptable.. which makes me think it won’t last long.
    You know, we love to do that in France : make a law, realize it cannot work, so make more laws to cancel previous ones…

  2. Stephane says:

    Dominique, I think you’re missing the point regarding penalties softening. Now, the penalty is the same for the individual who copied one MP3 and a “criminal” organization whose business is to duplicate Movie DVDs and sell them. In French jails, the most dangerous is not the mob guy anymore, it’s the young guy with his MP3 player.

    Regarding the Vivendi law name, that name is also coming from the fact that the European deputy who lobbied the most for this law is the spouse of the former Vivendi CEO (and the lobbying occurred while her husband was still running this company).

    Finally as for “fair use”, it has indeed been stated that the number of private copies could be zero. This is making the tax on blank media illegal. I’m wondering how long it will take for consumer associations to sue the French state.

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