French assault on Apple may backfire

Wired: Will Apple rename its iTunes downloadable music service the Freedom Music Store? Well, possibly not - but France and …

Wired: Will Apple rename its iTunes downloadable music service the Freedom Music Store? Well, possibly not - but France and Apple are certainly preparing to go to war, and what happens to the online music market as a result is anyone's guess.

The battle is over French politicians' recent proposal to oblige Apple to reveal the details of the copy-protection scheme it uses in iTunes to competitors.

Apple has responded by calling the proposed requirement "state-sponsored piracy". Many commentators believe the company would pull out of the French market rather than obey any new law.

The battle emerged as the French legislature debates and attempts to work around some of the problems of an EU directive they are obliged to implement.

READ MORE

The EU's copyright directive (EUCD) instructed all member countries to set up rather draconian rules to prevent users from "circumventing" anti-copying schemes, such as used by Apple to protect its downloadable iTunes music from widespread distribution.

The rules were modelled on the US Digital Millennium Copyright Act (DMCA), which for the first time made it a criminal offence to bypass copy protection or distribute systems that would enable computer users to do the same.

The DMCA has been criticised as being an excessive law. The latest to come out against it was the libertarian think tank the Cato Institute, which this week called it "anti-competitive".

The problem is that in order to convert from one format to another - say between music that plays on an iPod and music that plays on a normal MP3 player - the copy-protection code has to be overridden. That's because transferring between one format and another involves almost exactly the same computer process as making a new copy.

Doing so is illegal under the DMCA and the EUCD. In other words, once in one format, music cannot be easily converted to any other.

This puts companies like Apple, says the Cato Institute, in a lucrative and near-monopolistic position. Music downloaded from their iTunes music store can only be transferred to their own iPod hardware, because the company refuses to allow anyone else a licence to decode their copy protection on their own music players. And the DMCA and EUCD forbid other hardware manufacturers from converting the music from one form to another.

In an attempt to head off those anti-competitive elements of Europe's EUCD, the French lower house added its own amendments. Copy protection manufacturers will be obliged to offer media interoperability by law. Apple's FairPlay format, which protects iTunes music, the ATRAC3 code used by Sony's Connect store, and Microsoft's Windows Media format would be available for competitors.

The amendment was proposed by members of the open source movement in France, who suffer particularly from the DMCA's restriction.

Because they provide their software for free, any licensing system Apple might grudgingly give to competitors would be too expensive.

Increasingly, open source systems are being excluded from media environments that use copy protection, and have very little comeback under the DMCA to create alternatives.

But French politicians may have been less concerned with the possibilities of open source, and more concerned about American monopolies.

There is a wide distrust of the market control exerted by US corporations on many French markets. And while the country is generally rather enamoured with Apple (one of the company's ex-CEOs, Jean Louis Gassée, is French, and the company just announced a partnership with Versailles business school HEC), other foreign giants like Microsoft concern them even more.

And that may be why the proposals are doomed to fail. Although Assembleé Nationale voted 286-193 in favour of the proposals to open up copy protection, the bill now goes to the senate, where challenges will no doubt be made to the proposal.

And while Apple's competitors in the music player market are licking their lips at their discomfort, and the record industry, which has balked at Apple's near monopoly of the downloadable music market, has muttered support of the French law's principle of interoperability, no one is happy about the enforced government revelation of trade secrets.

It may be that to protect their own potential future monopolies, French and American tech corporations may team up to lobby for the amendment's revocation.

If so, France will be left with a law that matches the DMCA in the US, and not only permits Apple and others to keep their technologies under lock and key, but also excludes free players and media systems out of the market permanently.

That would be a shame: if only because "Liberty, Fraternity, and Interoperability" has such a good ring to it.