France’s New Revolution

France’s New Revolution

Suderman Op-Ed at National Review Online
April 11, 2006

The French climate of economic sluggishness and widespread unemployment has led to a pervasive restlessness. Many—especially the youth—have taken to rioting, striking, and protesting with a festival-like vigor. Naturally, anything with this sort of rock-concert aura deserves a soundtrack, and these days the background music to looting and car-burning emanates from a shiny array of digital music players. But the French, never content without dirigiste government intervention, have decided that even their digital music needs to be saddled with the burden of regulation. Now Apple’s iTunes music store is under fire from a law that would strip Apple of the right to protect its property without providing consumers any serious benefits. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

 

Supporters of stricter corporate regulations often fly under the flag of freedom, but what advocates of these proposals (and the French in general) often forget is that the doors to freedom swing both ways. Seemingly nowhere is this a more difficult concept than in the protection of digital media, where ideas that would seem laughable in the context of physical property suddenly become tenable. The French proposal, which would force Apple Computer to reveal details of the security measures it uses on songs purchased from the iTunes music store, is only the most recent example.

 

France’s law would require that Apple release the technical details of the digital-rights management (DRM) scheme it uses on its iTunes music store in the name of interoperability. Currently, songs purchased from iTunes can be played only on computers with iTunes software and Apple’s iPod portable MP3 players—in other words, devices managed by Apple. This allows Apple to constrain the use of the songs to certified software and devices, giving them more control over the listener’s experience. It also puts a damper on illegal copying and distribution, giving the record companies who license Apple to sell the songs some peace of mind.

 

But French lawmakers want to destroy that peace by requiring Apple to divulge the inner workings of its DRM. The reason, advocates of the law claim, is to ensure that consumers have the “freedom”—there’s that word—to play the music on any device they so choose. But as in so many cases (Liberté, égalité, fraternité, for example), the notion of freedom is dubiously deployed. The French law is the virtual equivalent of requiring Best Buy to release details of its theft-prevention system; it mandates that a private company release proprietary, secret information for the sake of openness.

 

Clearly, the cost to Apple is high, and it has been speculated that the company may simply pull iTunes from the French market in retaliation. But surely there must be some significant benefit on the user end? Sadly, the answer is no. True, iTunes customers would find it easier to transfer their music to devices not approved by Apple. However, despite DRM restrictions, that can already be accomplished quite painlessly by simply burning the songs to CD and re-ripping them to a computer hard drive as unrestricted MP3 files, a process that takes only a few minutes. Is France willing to cripple Apple’s business model for the sake of a few saved minutes?

 

France’s crusade against Apple is suspiciously similar to the effort by the European Union to force Microsoft to release a stripped down version of its Windows operating system. In that case, the EU muscled up to Microsoft on antitrust grounds, claiming that the company’s choice to bundle Windows Media Player with Windows gave it an unfair competitive advantage. As with the current French law, the effect was to stipulate that a company’s business model work against its own best interests with scant evidence of consumer benefit.

 

To no one’s surprise, the French have taken the exact opposite approach to DRM as the U.S. Where their mistake is attempting to legislate DRM into uselessness, the U.S. erred in the other direction by giving DRM the force of federal law. With a 1998 law called the Digital Millennium Copyright Act, the U.S. made it is illegal to circumvent DRM protections—even if the intended use would not violate copyright law. In his recent paper, ”Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act”, analyst Tim Lee claimed convincingly that the law is problematic, writing that it has created “a legal regime that reduces options . . . in how consumers enjoy media and entertainment.” Meanwhile, James Plummer’s paper, ”Expanding the Market’s Role in Advancing Intellectual Property”, argued that the DMCA forced the costs of copyright enforcement onto the public.

 

Somewhere in between the U.S. and French approaches to DRM lies an appropriate middle ground. The DMCA makes DRM far too strong, but the French proposal renders it nearly useless. Individuals ought to have control over their media, but digital-music vendors like Apple ought to be allowed to protect and control their property. Vive la (digital) revolution!