Learning from the French iTunes legislation

Sun Labs Engineering Director Tom Jacobs says there's a way to avoid working under government directive.

4 min read
France recently flirted with strict interoperability mandates between online music services. Yet, like a storyline to a classic French love story, what started as a promising courtship has devolved into a complex spat with hurt feelings all around. It all started a few months ago when French National Assembly passed a bill that, simply put, required a song bought off the French iTunes Music Store to be playable on any device.

Many French legislators and consumer groups found this necessary because, if you really love, say, Serge Gainsbourg and buy one of his tracks off iTunes, you can listen to it only on your iPod, iTunes or an iTunes-burned CD. This means that if you get a phone that plays music, you can't play your iTunes track there. Or, if the iPod goes the way of the Pet Rock, then that Gainsbourg tune you own will be under lock and broken key forever.

The French bill would impact all online music stores, but with Apple Computer's dominance in the market, the company was clearly the target. Apple threatened to shut down its French iTunes store before submitting to such a rule.

However, after much debate, the legislation was significantly modified and the version that passed Friday says that the labels and artists providing music to the music services can waive the interoperability mandate if they so choose. A new layer of bureaucracy in France will mediate this process.

Legislating a technological moving target is an inexact process that is bound to become as dated as bell-bottoms.

Apple still isn't happy with the current legislation language and may yet leave France. Even if it does stay, the company could presumably relegate the music of those who demand interoperability to virtual back shelves of the iTunes music store. The end result will be regulations that create a state-sponsored battle of leverage between labels and online services and more bureaucracy. Oh, and Gainsburg's "Les Incorruptibles" probably still won't play on your phone.

Sacre Bleu! It doesn't have to be this way.

First, legislating a technological moving target is an inexact process that is bound to become as dated as bell-bottoms. What is a dominant platform today could become a distant memory tomorrow. Consider CompuServe or AOL's strength in the 1990s and where they are now.

Plus, there may well be a technological solution to the confusing swirl of multiple devices and incompatible rights formats. This solution would do what the French originally wanted to do--and much more--without the snapshot-in-time regulation. It would create a market-based rights system that authenticates individuals--not devices--and allows consumers to use content that they own on any device.

Moreover, this rights system would be available for anyone to use. No mediating bureaucracy needed. That means that anyone putting a film, song or photo online could create rules for the distribution of their content. And, with the further explosion of participatory mediums like YouTube, photo-sharing sites and personal blogs, this becomes a big deal.

A number of companies--including Sun Microsystems--and individual programmers have begun collaborating on a content rights project called Open Media Commons. The hope is to create a digital rights management (DRM) system that fairly balances the rights of content creators and interests of those who purchase that content.

Predictably, some will say that all DRM is evil. Even though it is simplistic, this perspective does elicit sympathy. After all, DRM has (wrongly) been used surreptitiously and DRM, to date, has largely been used to create confusing rules for consumers on how they can use content that they own. Again, this was the first scene of the French epic.

But fade to reality and you'll see that some forms of DRM will be inevitable. Even if the content industry won't require DRM directly, governments may. Recently, there have been numerous pieces of congressional legislation that have (unwisely) mandated DRM.

Therefore, we want to work with others to create a viable alternative to device-based DRM and create a transparent, open, yet secure system. The focus will not be to lock down content. Rather, it will be to provide a personal content key for individuals to use what they own across all devices.

This is especially important when you consider that music is just the first of countless examples of content that people will access online. Having a content rights system that gives you access to your Shakira album while on vacation is nice. Having a content rights system that allows a doctor in ER to securely review your electronic health record is essential.

Let's hope that the world learns from France's attempts to thread the DRM needle through regulation and instead focuses on systems that put power in the hands of consumers. Know that, for now, consumers may be justifiably quite content to use the substantial iTunes service with their treasured iPod. But when consumers are given a choice between an open platform that resembles the Web more than it does CompuServe, we think they could soon be saying au revoir to closed systems without the help of politicians.