A portion of the bill -- one of several controversial provisions -- would require interoperability among DRM technologies for purposes of enabling consumers to play content on a variety of devices and make private copies of it.  The bill now goes to the Senat (the upper house of Parliament) for further debate and a vote, which is likely to occur in May. 

This bill is an attempt to provide more consumer choice in online content services and to prevent allegedly monopolistic behavior from companies like Apple, whose iTunes online music service only works with iPods -- which, in turn, do not work with online services that use different DRM technologies, like Microsoft's.  The bill also contains a provision that criminalizes DRM circumvention, as required in the EUCD.

Like most such legislation, this bill is ill-conceived and should not pass.  The reason for this is simple: it would weaken any DRM scheme, almost to the point of superfluity, and would serve only to increase piracy. 

The bill does not actually require that DRM technology vendors provide their own interoperability features.  That would be silly: anyone with proprietary playback technology could come along and demand that Apple or Sony or Microsoft provide "interoperability" with it. 

Instead, Article 7 of the bill does require that technology vendors make sufficient information available so that third parties can provide interoperability.  This includes technical documentation and APIs (programming interfaces).  Under the proposed law, anyone could petition the French Justice Ministry to compel a technology vendor to provide interoperability information, and the vendor would only be entitled to nominal logistical compensation for doing so.  Anyone who wants to provide interoperability services would be free to use such information, and it would be illegal to prevent anyone from publishing it.

The bill goes further (in Section 8) by forbidding content distributors from using DRM to prevent private copying, but only in certain cases; DVD and CD copy protection appear to be safe in this bill. 

The interoperability provisions ostensibly make sense.  As long as vendors make interoperability information available, it should be up to others to provide the actual interoperability, particularly third-party service providers.  RealNetworks's Harmony service is an example of this.  The Coral Consortium, an interoperability standards effort, is promoting just such a scheme.  Apple, for example, could join Coral and plug into its framework (once it is defined, which is expected within the next few months). 

But deeper analysis shows that the provisions do nothing but undermine DRM.  The problem is that the type of information necessary to achieve interoperability is also precisely the information necessary to render DRM useless: encryption algorithms, keys, content metadata, and so on.  DRM would be reduced to the tiniest of speed bumps, easily surmountable with utility software that would become readily available.  The boundaries between such "interoperability utilities" and circumvention software (hacks) would be erased, and the difference between legitimate and illegitimate uses of those technologies would revert to plan old copyright law -- which is where we started before DRM came into being.

The only way to make such a law practical would be if DRM systems were completely redesigned so that their vendors could provide information that would promote interoperability without allowing for indiscriminate use of protected content.  We know of no way to do this without requiring all vendors to adhere to a new set of standards, a nice example of which is the IDP-2 spec that is currently being finalized by the Digital Media Project, due for release next month. 

If this bill passes in its current form, then Apple and other DRM-based content service operators in France would have only one reasonable course of action in the near term: to shut down all of their services.  It's not even clear that there is a reasonable way for DRM technology platform providers like Apple, Microsoft, and Sony to provide the necessary "interoperability information" without significant changes to their technologies. 

News coverage of this legislation has focused on whether Apple would shut iTunes down in France, and Apple has not commented on this.  But we believe that all DRM-based content service providers currently working in France -- including MSN, Tiscali, Wanadoo and FNAC as well as Sony and Apple, not to mention mobile music services -- would be faced with a combination of increased costs of providing "interoperability information" and the likelihood of increased liabilities with respect to their agreements with content licensors.  This would leave them little choice but to shut down, leaving piracy as the only way to obtain content over the Internet in France.

We agree with the Financial Times, which stated that the market for online content is young and should be left to develop on its own without this legislation.  Consumer choice is a powerful weapon as well as a highly worthy goal, but in this instance, legislation is a poor way to achieve it.

Thanks to Prof. Daniel Gervais (University of Ottawa) and Cyril Rickelton-Abdi (Disney International) for help with this story.

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