What happens when the legal community is confused about technology?

I find it frustrating when I read articles like the one in the New York Times about how the French constitutional council, the country's highest judicial body, has declared major aspects of the recent digital compatibility law as unconstitutional.

I suspect that it is based on some myth that this law was misappropriating some property right that Apple has, when in fact that it is Apple that is circumventing the property rights of their hardware customers.

Most non-technical people (and some technical people) have been mislead about what so-called "DRM" does. While there is a technical measure that is applied to digital content so that the content can only be accessed on "authorized" hardware, the roots of the controversy is about the hardware and not the digital content. Device manufacturers believe they should be able to exert ownership rights (IE: control what people can or can not do with the hardware) after it is sold, and those of us who recognize the need to protect property rights believe that the rights of the manufacture must end at the point of sale.

I believe that where the technical measure is protected in law, what Apple is doing is state sanctioned theft. This isn't about copyright infringement of content that is purchased from iTunes which is the myth that Apple has spread, but about the tangible property rights of those who purchase iPods.

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French legal review of new copyright law may not be as bad...

Not having read the court's 12-page legal review (which I only saw in French), my previous article was based on media reports.

An article in PC Pro UK includes:

However, the court did agree that the iPod-iTunes axis violates constitutional property protections. Apple will still be obliged to license the FairPlay DRM, albeit with financial recompense.

This case involves all 4 different "things" I speak about in Protecting property rights in a digital world: Unfortunately I can't tell from this article whose property rights on which property are being considered:

  • The content distributed by iTunes, which has copyright holders whose rights should be protected in law
  • The customers of iTunes who are either "purchasing" or "licensing" digital content. Whether they own the download or are licensing the download, there is eithor property law or contract law protecting the rights of the consumer
  • The owners of iPods or computers running the iTunes client software
  • Apples exclusive rights as the author of the iTunes client software and the software embedded within the iPod.

European law should have taken care of the last issue, given the 1991 European directive on the legal protection of computer programs (91/250/EEC) which clearly stated that computing interfaces are not eligible for exclusive rights and reverse engineering was clearly protected. Since Apple has no legitimate exclusive rights that could tie iTunes and the iPod, there should be no compensation to Apple to allow third parties to use these interfaces and/or reverse engineer.

Are we talking about statutory licensing of digital decryption keys, similar to the licensing system for the performance of music (radio) or what legalized cable television? Is this only about protecting the interests of competing hardware manufacturers, or is there any aspect of this review that was intended to protect the rights of hardware owners?

Was the court recognizing the rights of the owners of hardware, or were they recognizing the rights of those purchasing/licensing music? I believe it is far more useful for the courts to recognize the rights of the owners of the hardware, as the battle between copyright holders and purchasers of digital content is far more complex and tends to mire governments in the types of battles as we've seen with Microsoft. Courts all over the planet continue to fine Microsoft for being a convicted monopolist, and yet very little has come out of all these legal battles.

Free/Libre and Open Source Software (FLOSS) consultant.