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Apple, iTunes and France: The Reality

You may have read that the French are at it again: harassing Apple, and requiring them to open the FairPlay digital rights management (DRM) system used to protect music files sold by the iTunes Music Store. Well, like much reporting these days, this is both correct and incorrect. As an American living in France, I’ve been following this situation closely, and it’s time to set the record straight and look exactly at what this new law will require, if it is indeed passed.


First, the law has not yet been passed. It has only gone through the first of several steps, that of a "first reading" of the law by the lower house, the Assemble Nationale (roughly equivalent to the House of Representatives in the U.S.). The bill then goes to the Senat, then back to the Assemble and the Senat again for final votes. These first two votes are more about getting the substance in order, and amendments can be added at any point in this process. Even after the law is passed, it goes to the Conseil Constitutionnel which has to approve it and refine the wording and penalties it contains. So, after this brief course in French parliamentary procedure, you can see that, so far, nothing has been decided.

The situation has been even more confusing because, in a textbook example of clueless legislative procedure, the bill that was introduced has seen amendments added, removed, and added again, creating quite a bit of confusion both within France and without. (Add to that the fact that many media have published articles based on faulty translations, and you’ve got a nice legal and linguistic stew to try and understand.) At one point in the process, newspapers were trumpeting the "global license" that was in the bill: a sort of indulgence that, for a modest monthly fee, would protect users from prosecution from downloading music illegally. While this idea may, in principle, be a good one, it would only have allowed those who paid the fee to download what is currently available illegally; it would not provide a true global license to download all music available, since record companies would not suddenly make their entire catalogs freely available on-line.

But what is getting the most attention in recent days is the clause in the law that would require Apple to open up its FairPlay DRM system so users could purchase music from the iTunes Music Store and play it on any music player. This clause states that DRM used "…must not prevent… interoperability, while respecting copyright." In other words, Apple – along with Microsoft, Sony, Real Networks and any other companies using DRM – would have to provide the necessary APIs to others to allow their music to be used. It is not clear how this would be implemented, however: would this require that DRM be stripped, or simply that all music players would have to be able to manage all forms of DRM-protected music? Most likely the latter; otherwise the record labels, who saw in this bill a new lease on life, would complain.

Another important point is that DRM is currently illegal in France… well, sort of. The courts have sided with individuals in every case where DRM prevented them from using their music as they want, and "copy controlled" CDs have been, several times, declared illegal in France. These decisions have been appealed, but part of the legal basis for this right to private copies lies in the fact that every blank CD and DVD, along with every hard drive, iPod, flash memory device, or other data storage device includes a tax, which is divided among record labels and movie studios. Because of this, blank CDs, to give just one example, cost about four times as much in France as in neighboring England. This tax is levied because of the assumption that every blank CD or DVD, every iPod or hard disk – regardless of what you use them for – is filled to the brim with "stolen" copyrighted content. Yet nothing in this new copyright bill removes this tax, which brings a fair chunk of change to musicians, producers and songwriters each year.

As I pointed out earlier, this bill has not yet been passed. But Apple has commented on it, saying that it would inspire a "state-sponsored culture of piracy," because cracking DRM would not only be legal, but obligatory, at least among manufacturers. (It is interesting to note that, in 2002, Steve Jobs said, "If you legally acquire music, you need to have the right to manage it on all other devices that you own," although he was most likely referring to other devices such as a laptop, iPod, and desktop computer.) Soon after, U.S. Commerce Secretary Carlos Gutierrez threw his tentative support behind Apple’s statement.


So journalists have been focusing on this aspect of the issue, forgetting that Apple is not the only company being targeted. It’s also easy to forget that it is the record companies who demand DRM, not Apple (though I doubt Apple would really want to sell unfettered music) and the same record companies who will suffer in the long run. Apple, if this bill passes, has an easy way out: they just close the French iTunes Music Store. Anyway, most iPod users have music ripped from CDs on their iPods, not music they’ve purchased from the iTunes Music Store, and this law won’t change anything for them. It will just cripple digital music sales.

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Regardless of what happens – whether the bill passes as is, whether it is accepted by the European Union – it raises a broader issue. Will Sony have to let me use a PlayStation game on an Xbox? How about DVDs – will the movie studios finally be forced to allow users to copy them to laptops to watch while riding the TGV (France’s high-speed train), or simply to make copying to a video iPod easier? While they’re at it, what about DVD region codes? Why can’t I buy a DVD from the U.S. and play it here?

Let’s go one step further. As long as we’re on the subject, what about razor blades? That was the first example of vendor lock-in, which this law is hoping to eliminate. Can I get Schick to translate my blades to work on a Gillette? And when I need new parts for my Saab, can I require Renault to make theirs work for me?

The real point of all this is that the French members of parliament are clueless about technology in general and digital technology in particular. They’re opening up a huge can of worms in suggesting that interoperability should be guaranteed. While in principle interoperability is a good thing, in practice it is an absolute principle. You cannot expect it to work in one area without it applying in all areas. Why single out only music? Are there Microsoft-funded lobbies at work behind the scenes, twiddling the minds of French legislators? Microsoft would certainly like this bill to go through, but do they really think that other companies will sell more MP3 players? It’s not about the content, in this market; it’s the design and ease-of-use. And besides, would Microsoft really like being forced to make all of their software work on the Mac to meet the letter of such an interoperability law?

In any case, as one French member of parliament said, "it will take at least a year" to iron out all these issues. By then, France will be approaching new presidential elections, then parliamentary elections, and it is more than likely that things will be very different. Also, the European Union has its say, as do the courts. So calm down, and don’t expect Apple to be tossed out of France any time soon.

[Kirk McElhearn is the author or co-author of a dozen books, including "Take Control of Customizing Microsoft Office." His blog, Kirkville, features articles about Mac OS X, the iPod, iTunes, and much more.]

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