02.05.12
Posted in Europe, Microsoft, Patents at 10:06 am by Dr. Roy Schestowitz
Summary: The rise of the junk patents and what we are taught about them by the news, including some news about the unitary patent in Europe
THE UNITARY patent [1, 2, 3, 4, 5, 6, 7] drew opposition in several countries and also among some British MPs. Despite all that we know about the harms of patent maximalism, patent lawyers in Europe keep promoting it and argue for the inevitability of this looting of public knowledge:
It certainly is a sign of progress (although some would say in the wrong direction) that the Secretariat of the EU Council is about to finalise the Regulation for implementing the Unitary Patent (see Document CM 1068/12). Apparently, the dice is cast with respect to the Unitary Patent and, thus, with respect to the highly controversial question as to whether or not Articles 6 to 8 (effects of patents) should remain in the proposed Regulation so that substantive patent law will be subject to review by the Court of Justice of the European Union in future.
We have not heard about the unitary patent in a while, which either means that the public is left out or that no significant progress is being made. Lawyers have their own interests here and therefore a bias too. Over in Australia we see a similar type of crowd doing something similar. Patent boosters in Australia argue in favour of software patenting. It’s from a pro-patents blog that says:
The US Supreme Court has established three exceptions to the broad principle that all machines, processes, manufactures and compositions of matter are patentable under 35 USC §101 – laws of nature, physical phenomena and abstract ideas.
In Australia, it is settled law that the ‘manner of manufacture’ test for patent-eligibility excludes laws of nature, mere discoveries, ideas, scientific theories, schemes and plans. Mathematical formulae and algorithms are also excluded, to the extent that claims are not meaningfully limited to their use as part of a patentable practical application.
It can therefore be seen that, while the precise terms used differ in the two countries, there is a broad similarity between the fields of excluded subject matter in Australia and the US.
As we showed last year, there was some lobbying in Australia and a perpetual attempt to spread the venom of the US patent system to another continent (just like in Europe). It’s not about innovation, it is about greed. When multinationals are calling out the alligators with some more litigators (new hirings) they do nothing to promote innovation. Usually they merely impede it. Here is an example of another software patent being granted. Some of them are so embarrassingly trivial and CNET catches up with old news about Microsoft withdrawing one such embarrassing patents among several that it uses to extort Linux/Android (this one in the B&N case). To quote:
Microsoft withdrew a patent from the list of ones that it claims Barnes & Noble violates with its Nook e-readers in the software giant’s case against the bookseller before the U.S. International Trade Commission.
The ITC is not done looking at the anti-competitive patent misuses by Microsoft. Microsoft lobbyists, however, try to change the story. █
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02.01.12
Posted in Europe, Patents at 11:49 am by Dr. Roy Schestowitz
Will Europe surrender to multinationals from across the Atlantic?
Summary: Warning signs about the looming threat of the Unitary Patent — a cross-Atlantic gateway for software patents
THE president of the FFII carries on tracking what can possibly serve as a bridge to software patents in Europe.
British politicians recently opposed the unitary patent based on rational grounds and British patent lawyers have this to say about their views:
He also stated that the value of the patent has the potential to be diminished if SMEs do not have the funds to be able to enforce the patent. Such a loss in the ability to enforce a patent and benefit from the revenue streams otherwise associated with the enforcement of the patent and the corresponding market share, would mean that SMEs and other companies may not have the funds to reinvest into research and development. Essentially, the proposed system may result in a chilling effect on innovation.
Indeed. Microsoft is meanwhile employing lobbyists to pretend to speak of behalf of SMEs, promoting policies that would only harm SMEs. Other patents boosters write that;
Unitary patent on agenda for EU Council meeting, happening now
We could not follow this link, but it does seem like something is happening behind closed doors and other boosters of patents say:
Member States commit to reaching at the latest in June final agreement on the last outstanding issue #patent package.
This so-called “patent package” or whatever they wish to call it this year (they rename it to evade criticism or use new euphemisms) is trouble for all Europeans. It is good for multinationals though and they have enormous political power. Think along the lines of SOPA/PIPA/ACTA. █
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01.23.12
Posted in Europe, Patents at 6:15 am by Dr. Roy Schestowitz
Summary: Loophole for software patents in Europe meets opposition from some politicians in Great Britain
THE BRITISH parliament, comprising lawyers for the most part, debates patent monopolies and expresses concerns over the unitary patent which we wrote so much about [1, 2, 3, 4, 5, 6, 7]. To quote:
The European Scrutiny Committee said some of the draft plans for a single EU-wide patent system could disadvantage UK small businesses.
Plans to allow inventors to gain cost-effective unilateral patent protection across the EU have been under negotiation for years. In recent months 25 EU countries have moved closer to establishing a new framework around how that system would operate, however
Negotiations over the workings of a new unitary patent court system are of “particular” concern, the committee said in a report on the enforcement of patent rights. Current plans under discussion suggest that national courts will hear cases involving disputes over the validity of unitary patents, but that the European Court of Justice (ECJ) would deal with cases involving the infringement of rights to do with the same patent, the committee said. Such a framework could lead to expensive legal battles and “inconsistent” decision making, the report said.
For all we know, Italy and Spain still oppose this, with Italy reportedly (based on one article) surrendering.
A new article by Jonathan Corbet (at LWN) expects the patent issue to get worse this year. Quoting his now-public op-ed:
On the political front, it is a fairly safe bet that the mobile patent wars will get worse. The participants in this battle appear to be tooling up for an extensive and protracted fight, and there seems to be a steady supply of new companies (British Telecom, for example) piling on in the hope of gaining a piece of the pie for themselves. Things may reach a point where it becomes impossible to market handsets or tablets in some parts of the world. One could hope that a paralyzed mobile market would suggest to lawmakers that the patent system is broken, and that those lawmakers would respond by reforming said system. Alas, a more likely outcome (though not in 2012) is the formation of a patent pool under strong “encouragement” by governments that ends the fights and establishes the positions of a small number of large players at the expense of new entrants. How free software will fare in such a world is far from clear.
In the next post we shall look at how this affects GNU, Linux, and Free software in general. █
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01.21.12
Posted in Europe, Patents at 11:23 am by Dr. Roy Schestowitz
Paper pushers want to tax computing
Summary: The appointment of more people whose stance on the subject of patents leaves little room for objectivity
THE EPO is losing its credibility as the unitary patent seems closer to being imposed on the public against people’s will and arguably against the rules [1, 2, 3, 4, 5, 6, 7].
The EPO sets up a biased board:
Using studies and analyses supplied by the EPO and external partners, the board will also provide early warnings on sensitive issues, and make policy recommendations.
As the FFII’s president put it:
By nominating such people, the EPO fails to think outside of the patent microcosm
Watch the list of those people, it’s quite telling. The EPO is in the business of granting patents, and therefore it is naturally biased and inclined to grant more of them. The unitary patent would mean more business for the lawyers and a global patent system seems like a scary destination, which is further exacerbated by the realisation that patent lawyers start thinking global:
The firm’s advanced IP services include access to 11 million Japanese patents and 4.9 million Chinese patents, both searchable in full English texts.
What would the point of that be if not to pollute one country’s monopolies with another’s? Patents are a taxing mechanism, they in no way serve the public. Scholarly findings on this subject are clear. █
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01.16.12
Posted in Europe, Patents at 10:22 am by Dr. Roy Schestowitz
Summary: The president of the FFII to appear in FOSDEM 2012
THE past week has been relatively quiet on the parents front, but this does not mean that behind closed doors there are no attempts to legalise software patents in Europe, for instance.
The president of the FFII will explain the patent situation in Europe, so those who attend FOSDEM might want to go to this talk. In his own words:
Will talk about the EU software patents via a central patent court at FOSDEM 2012, Saturday 6pm ur1.ca/7h5j8
Slides (if any) will hopefully be put online.
Based on some other new tweets of interest:
Costa Rica does not accept software patents as valid bit.ly/xrvob9 via @oscarretana
New Zealand is currently grappling with this question as well, quite notably in fact. The problem is that loopholes often exists for patenting software where it is not legal to do so. █
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01.06.12
Posted in Apple, Europe, GNU/Linux, Google, IBM, Microsoft, Patents at 7:12 pm by Dr. Roy Schestowitz
Linux proponents unite against proprietary aggressors
Summary: A roundup of patent news about Android/Linux and some of the latest events that relate to it
THE decline of Windows Mobile and all of its other identities (Microsoft keeps Sevenwashing it) has been so rapid that Windows is now a 1% player in a market that keeps growing and growing.
“Windows Phone reaps what it sows” says one journalist who explains it as follows:
Misunderstood, mocked by its competitors, blocked from the market, and little used by the average user.
Ten years ago, this would have been a harsh but fair description of Linux. Today, however, it’s seems perfectly apt to use these labels to describe a completely different bit of technology: the Windows Phone operating system.
Even Nokia cannot save Windows (on mobile phones), so all that Microsoft can do now is become a leech through patents, e.g. via MOSAID and its patent extortion operations (notably Android “licensing”). In this age of many lawsuits that we find in the news all the time we realise that this problem is systemic too. After all, Apple too uses a similar strategy.
Looking at the USPTO for a moment, Matt Asay notes that:
2011: new record in patent grants, tied to Obama’s PTO chief not increased filings zite.to/y1nABx <Cue Talking Heads “Road to Nowhere”
Glyn Moody’s remark on the same report is sarcastic:
because what the world needs is lots more intellectual monopolies
James Love (of KEI) says:
During patent reform legislation, WH claimed low quality patents are problems. But USPTO just issued a record number.
The FFII asks James: “How do they measure patent quality in the US?”
Here is the report they all link to. It’s from a pro-patents circle, known to many as Patently-O (Dennis D. Crouch), and it says:
The USPTO issued more utility patents in calendar year 2011 than in any year in history. The 2011 total – just shy of 225,000 issued patents – is only a small increase over 2010, but towers above all other historic figures. The previous record was set in 2006 with about 173,000 issued utility patents. The dramatic rise in issuance rate is not tied directly to an increase in filings (although there has been a small increase in new application filings). Rather, the two-year increase appears to be the result of regime changes instituted by USPTO Director David Kappos who took office mid-year 2009 after being nominated by President Barack Obama.
the USPTO is a bubble and a sham. The sooner people realise this, the sooner it will be toppled. It serves a conspiracy of monopolies, parasites, and patent lawyers who drive up the price of everything and deny the entry of new competition into the market.
When in the news we see searching as a patent and even business methods as a monopoly we cannot help feeling that one productive response would be to expose the system, not just pertinent companies that exploit it to the extremes and harm Free software more than anything else. The USPTO is very dangerous at all levels because there are lobbyists who use the “USPTO model” to expand this same model to other countries. This include the UK-IPO that we have here in England. As one person puts it, “All in the American mind? US and UK take different approaches to assessing mental act exclusions”; if the unitary patent is passed through, the US may have the whole EU (EPO) assimilate to the USPTO. Already, some software patents are being approved in the UK. This is a new example from the news:
Image processing software not excluded from patentability, IPO rules
An IPO examiner had previously ruled that the invention was excluded from patentability on the grounds that the invention consisted solely of a computer program. Hewlett Packard, the company trying to patent the invention, appealed against the examiner’s ruling and the hearing officer has now upheld that appeal on the basis that the invention uses mathematical techniques that are sufficiently technical in nature to avoid being excluded from patentability.
Under the UK’s Patents Act inventions must be new, take an inventive step that is not obvious and be useful to industry in order to qualify for patent protection. An invention cannot be patented, according to the Act, if it is “a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer … as such”.
Henrion from the FFII writes that:
The problem with the patent system at the moment is that it’s being applied to intangibles: software and user interfaces
Here is one new example of it:
Lakeside Software, a leader in business intelligence solutions for IT professionals, today announced that the company has expanded its patent portfolio with the granting of a patent for the management of data across multiple computer systems.
Data too has patents on it now? How far will this go? And how abstract a computation is going to be deemed patentable? Oracle pushed copyrights and patents to the edge when it suggested that APIs too can be patented, which they probably can in the US.
We already know that the age of bankruptcy is an age of patent wars and Sun’s sale to Oracle had its “defensive” parents turn into hostile. Novell’s patents were sold to Microsoft and Apple, too (both companies are FOSS-hostile and litigate against Linux/Android). Here is the new story of another company that ran to the courtroom amid its demise: “The newspaper quoted unidentified people as saing Kodak could seek protection in the next few weeks if an effort to sell a collection of digital-imaging patents falls through.
“Kodak has sold patents valued at millions of dollars over the last several years in a bid to shore up its ailing finances.”
It’s actually a strong case against patents because companies become just a pile of orphaned patents (Novell included), and in turn this fuels wars, not sparking any innovation at all. Disregard the pro-patents propaganda from lawyers’ Web sites and instead watch why they like patents (starting 2012 with patent lawsuits). As one columnist in IDG put it:
When Netscape went public in the fall of 1995, few of us understood that we were entering an era of constant and accelerating change. Since then, 16 years of Moore’s Law has given us powerful and cheap hardware. The open-source software movement has made software that’s worth millions of dollars freely available to anyone who can click a mouse. As one can see, reducing these natural barriers to entry has made it easier to start a Web services business. These same trends have had an interesting effect on intellectual property strategy.
[...]
Open hostility toward patents from the open-source community and 10 years of judicial infighting over the patentability of “business methods” and other Web 2.0 technologies didn’t help matters. Many Web 2.0 companies underinvested in patents, when they should have increased their efforts to secure legal barriers to entry to offset the reduction in natural barriers to entry.
Actually, patents do not work for small players. That’s just the lie sold to us by the 1% (or less) who benefit from patents. Here is some more London-based propaganda dressed up as a press release:
The Decision Model is revolutionising Enterprise Decision Management by modeling the business logic (rules) behind key operational and strategic business decisions (http://www.azinta.com/Services/the-decision-model-solutions.html). The recent award of a US patent for The Decision Model to Knowledge Partners International (KPI) triggered an intense debate resulting in some commentators claiming that The Decision Model patent is an IP trap. Suleiman Shehu, the CEO of Azinta Systems – a KPI Consulting Partner, analyses the reasons for this debate and presents the evidence why The Decision Model patent is not an IP trap.
Decision-making as a patent. How about that, ladies and gents?
Moving back to the impact on FOSS, although Apple gets sued for patent violations, the company persists with its support for that same rotten system. “Last week,” says one article, “Apple applied to the US patent office to register facial recognition software…”
This affects me personally and professionally, too. “So instead of sliding to unlock the iPhone, iPad, or iPod Touch, one could simply point it at one’s face,” notes this article, among others that we mentioned in December. The point they are missing is that Apple gets a monopoly here. It is not good for anyone. Microsoft’s identity change to “patent aggressor” is on route as well [1, 2] (software patents). They are goodwill-washing it through gullible Web sites. With phrases like “patent helps”, there is clearly not a realistic expectation. And in the face of infographic propaganda from taxmen of technology (lawyers) we fortunately see some infographic sanity and we are able to see to what degree Android is the victim here (victim of Microsoft, Apple, and some of their allies). Google does not get patents anymore; in fact, “Google stopped submitting patents to the USPTO” because it’s pointless. To quote: “Software patent wars have always existed: companies fought them (or paid up), sometimes quietly, sometimes making a big fuss. However, something has changed over the last year or so: people started getting directly affected by software patents (ask anybody wanting a Samsung Galaxy Tab in Australia for Christmas 2011…). Lately, two things came to my attention: Google acquired 200 patents from IBM. But, more interestingly: Google hasn’t filed any patents over the last several months.”
Google does not apply for patents; it buys/gets them instead, usually from IBM [1, 2, 3, 4] under secret terms. An article for background can be found here:
Last year, IBM sold Google 2,000 or so patents ranging from mobile software to computer hardware and processors.
As other reports put it:
Google’s quest to build a strong patent portfolio continues with IBM assigning a further 222 patents to the search and advertising company. Details of the transaction have not been disclosed by either party, but the USPTO database shows the patents being transferred on 30 December 2011. This is not the first time Google has acquired IBM patents; over one thousand IBM patents were transferred to Google in both July and September 2011.
Some say that IBM is trying to defend Linux/Android in this case. “A trial date has been set in Oracle v. Google, or more accurately, an earliest trial date has been set,” writes Mark Webbink, who remarks on this bit of news:
SAN FRANCISCO (Dow Jones)–Google Inc. (GOOG) and Oracle Corp. (ORCL) have been scheduled to go to trial over an intellectual-property dispute related to Google’s mobile phone software in March, a development that could start to draw the lengthy spat between technology giants to a close.
There is a theory that Google’s new patents from IBM are capable of helping in this case (IBM is an Oracle competitor), but as the FFII points out, “Arms trading is a sustainable business but still mere economic efficiency waste.”
We shall assume that IBM’s interests in this case are in alignment with Linux interests. As we explained some days ago, there is apparently also an Android lawsuit (if not several) brewing against Microsoft and Apple. It’s getting rather interesting. █
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12.28.11
Posted in Apple, DRM, Europe at 7:31 pm by Dr. Roy Schestowitz
Summary: Bad Apple is doing bad things in HADOPI land using blackmail (allegedly claiming it “it would pull its business out of France” unless its demands were met)
According to the following Cablegate cable, Apple uses a baclkmail tactics (threatening withdrawal) to affect — for the worse of course — copyright law in France. Quoting the relevant parts: “In press statements, Apple said that the French copyright law amounted to “state-sponsored piracy” and that it would pull its business out of France. This declaration had an unfortunate impact. It heartened claims by free-software advocates and politicians who said that the opening up of DRM would benefit makers of DRM systems by enabling them to prosecute competitors as facilitating piracy. U.S. Secretary of Commerce Carlos Gutierrez’s press comments saying that while he needed to take a look at the legislation, he supported protecting intellectual property rights were widely interpreted to be supportive of Apple, and French pro-interoperability groups reacted disapprovingly. The Odebi League, a citizen’s action group defending the rights of Internet users, told Apple to “mind its business and not meddle into the French legislative process” and pointed out that “if Apple wishes to do business in France, it has to respect the rights that the French enjoy.” Some senators said they regretted that Apple did not appeal to them directly and interpreted it as a lack of interest.”
Shame on Apple.
Here is the Cablegate in ite entirety:
UNCLAS SECTION 01 OF 03 PARIS 003153
SIPDIS
SENSITIVE
DEPT FOR E, EB, EB/IPE, EUR/WE
DEPT PLS PASS USTR FOR JSANFORD/VESPINEL/RMEYERS
COMMERCE FOR SJACOBS, SWILSON
DOJ FOR CHARROP, FMARSHALL, RHESSE
COMMERCE PLEASE PASS USPTO
E.O. 12958: N/A
TAGS: KIPR ETRD PGOV FR
SUBJECT: FRANCE'S DIGITAL COPYRIGHT BILL: SENATE VOTES TO SOFTEN
INTEROPERABILITY BUT LOW PENALTIES REMAIN UNCHANGED
REF. PARIS 01847
¶1. This is an action request. See paragraph 13
¶2. (SBU) SUMMARY. The French Senate approved in the early hours of
May 11 the GOF draft law on digital copyright, in a format which
leaves unchanged the National Assembly's decriminalized penalty
regime, the principle (if not the requirement) of interoperability,
and the so-called "Vivendi Universal Amendment" criminalizing
peer-to-peer software publishing. The draft law adopted by the
Senate largely takes the sting out of interoperability by laying out
general guidelines -- which no longer require Digital Rights
Management (DRM) vendors to divulge industrial secrets to their
competitors -- and creating a new independent authority to decide on
the scope of interoperability and the "right to the exception for
private copy." The newly adopted text, known as the Law on Author's
Rights and Related Rights in the Information Society, generally
abbreviated as DADVSI in French is a step that would bring France in
line with the 2001 EU Digital Copyright Directive.Over the next
month, the text will likely go to a reconciliation conference at the
end of the month, and be signed into law before the summer. END
SUMMARY.
Senate Approval And Next Steps
------------------------------
¶3. (SBU) The DADVSI draft law was adopted by the French upper house
on May 11, with 164 votes in favor, 128 against, and 37 abstentions.
All the votes in favor came from representatives of the right of
center government UMP party. The text will now go before a joint
committee of both houses of the French Parliament to be reconciled,
and for final approval under the current Government "fast-track"
emergency procedure, which requires only one reading by both houses.
Upon completion of the legislative procedure, the draft bill will
be submitted to President Jacques Chirac for signature some time
before the summer. France, which had tabled implementing
legislation in November 2003, is the last country, with Spain, to
transpose the EU Copyright Directive.
Exceptions to Exclusive Copyrights:
----------------------------------
¶4. (SBU) Exceptions to exclusive copyrights, for public libraries
and archives, will now have to fulfil the "three-step test," i.e.
that they be confined to special cases, not conflict with a normal
exploitation of the work, and not unreasonably prejudice the
legitimate interests of the right holder. Education and research
have been added to the restrictive lists of exceptions in the
Senate, following the threat of a campaign of civil disobedience "in
any way they deemed useful and relevant" by over 2000 members of the
French scientific community.
¶5. (SBU) The more traditonal exception for private copy, an
essential feature of French "droit d'auteur," which allows French
residents to freely make copies of works (except software) for their
private use (and that of their family and friends) has also been
refreshed. The number of copies allowed as part of that exception
will now be decided by a new high regulatory authority, in charge of
outlining the contours of the private copy exception as well as the
new interoperability principle. The new authority will also work
hand-in-hand with the already existing Copyright Commission, which
sets the rates and conditions for the "tax on private copy" meant to
address the losses incurred by copyright holders. This tax is levied
on blank media (audio and video cassettes, CD, DVD, as well as
memory and hard drives in portable media players). While most of
this tax goes to rightholders, a quarter of it, representing some 40
million euros a year (USD 50 million), is used to finance cultural
events and festivals throughout France.
Penalties Remain Unchanged
--------------------------
¶6. (SBU) The system of "gradual sanctions", i.e. decriminalized
fines, has been confirmed by the Senate as "fair and balanced" --
despite efforts by one Senator and former Minister of Trade and
Industry, Gerard Longuet, to switch from what he described as
"organized indifference" to stiffer sentences. Culture Minister
Donnedieu de Vabres reiterated on this occasion that the purpose of
the bill was not to go after offenders but to ensure the protection
of works. As a result, non-commercial downloads are subject to the
lowest fine in France's Penal Code (38 euros), the equivalent of a
traffic ticket, instead of the original three years' imprisonment
and 300,000 euro fine proposed earlier by the GOF. These heavy
penalities in the first GOF draft bill created a major outburst in
the National Assembly, eventually leading to the adoption of the
radical "global licence." In the words of one Socialist and
technologically savvy member of the National Assembly, it would be
wrong "to describe the eight million people who have downloaded
music from the Internet as delinquents." On May 11, the Culture
Minister announced that an "index" of all protected works would be
set up to enforce the three goals of the bill: respect of copyright,
private copy and interoperability.
Softening Interoperability
--------------------------
¶7. (SBU) The Senate has proposed largely weakening the National
Assembly's radical ideas on the DRM technology. Two amendments in
the National Assembly's version had stated that providers of DRM
systems should provide the necessary technical documentation to ANY
party needing it to ensure that interoperability, including the
source code. This was interpreted as a direct attack on Apple's
iTunes platform and their iPod players.
¶8. (SBU) In press statements, Apple said that the French copyright
law amounted to "state-sponsored piracy" and that it would pull its
business out of France. This declaration had an unfortunate impact.
It heartened claims by free-software advocates and politicians who
said that the opening up of DRM would benefit makers of DRM systems
by enabling them to prosecute competitors as facilitating piracy.
U.S. Secretary of Commerce Carlos Gutierrez's press comments saying
that while he needed to take a look at the legislation, he supported
protecting intellectual property rights were widely interpreted to
be supportive of Apple, and French pro-interoperability groups
reacted disapprovingly. The Odebi League, a citizen's action group
defending the rights of Internet users, told Apple to "mind its
business and not meddle into the French legislative process" and
pointed out that "if Apple wishes to do business in France, it has
to respect the rights that the French enjoy." Some senators said
they regretted that Apple did not appeal to them directly and
interpreted it as a lack of interest.
Creating A New Regulatory Authority
-----------------------------------
¶9. (SBU) The Senate bill proposes a new regulatory authority to
examine the question of private copies and interoperability. This
new seven-member High Authority, modelled along the lines of
France's independent regulatory bodies in the electricity and gas
sectors (CREG), and in the telecoms and electronic commerce sector
(ARCEP), replaces the much-decried "college of mediators" initiated
by the National Assembly. Its responsibilities, much like its
guidelines, have been left as open as possible to allow for the fast
pace of technological change. At the same time, prodded by
embattled Culture Minister Donnedieu de Vabre and Villepin
administration, the Senate Cultural Affairs Committee developed a
text designed to meet as little opposition as possible from the
National Assembly once in the joint committee for conciliation.
These considerations explain the current text's willingness to pass
the difficult decisions on to the new authority.
Previous Support For Interoperability and Copying
--------------------------------------------- ----
¶10. (SBU) Public discussion of DRM and its effect on the private
copy exception have been particularly vivid in France. French
consumer associations initiated and often won court cases where DRM
restricted private copying -- a sacrosanct exception under French
copyright law.
Over the past three years, French consumer organizations have
initiated a number of court cases dealing with complaints of
consumers about CDs and DVDs that could not be copied and ripped
because of technical protection measures in place. In dealing with
the cases, French courts had developed the argument that the ability
to play a CD or a DVD on different devices constituted an essential
characteristic of a CD or DVD, and that producers of such devices
could be held liable for misleading the consumer in case of
incompatibilities. This first step towards establishing the right
to interoperability was confirmed earlier this year, when a Paris
Court of Appeals concluded that DRMs must respect the private copy
exception.
NEXT STEPS
----------
¶11. (SBU) Next steps include the drafting of implementing
regulations, which would also give the GOF (and stakeholders) an
opportunity to tweak the legislation, particularly regarding
penalties and sentencing. This is expected to take place over the
summer. The GOF will draft and implement these by decree. Other
possibilities for modification, according to lawyers, include a
constitutional challenge, which could come on any number of
articles. We understand that the Commission will eventually examine
all the EU member-states' transpositions of the directive at some
point over the next year. Finally, the GOF notes that the law has a
"review clause" of 18 months, requiring the government to provide
the Parliament with an evaluation of its efficacy.
COMMENT AND ACTION REQUEST
--------------------------
¶12. (SBU). France is one of the last countries to fulfil its
obligation to transpose this 2002 EU Directive. In making only a
minimal effort, many Senators seemed to be acknowledging how quickly
technology had moved since then 2002, and during the debates, French
Parliamentarians underscored the irony of a belated implementation
of a directive which the EU Commission is reportedly already in the
process of re-examining. In our conversations over the last weeks
where we raised our serious concerns over the quality and direction
of this controversial bill, French government officials and
observers had sought to reassure us and other stakeholders. We were
told (see reftels) that the Senate version would address many if not
most of industry's concerns. Senate legislative staff was thought
more pro-business, more technologically savvy, and less ideological.
Industry observers, many of whom where involved in a low-profile but
intense effort to reshape the bill with key amendments were
optimistic as well. Working with French industry allies, they
proposed close to 300 amendments. However, with the President and
Prime Minister under political siege, the government and the
majority party were in a hurry to get this complicated and
troublesome bill off their to-do list. By placing the bill on a
legislative fast-track, the government could be assured that the
conciliation conference would be over quickly. This political
pressure resulted in some improvements, such as interoperability,
where industry analysts are somewhat relieved at the results, but a
number of crucial elements remain unchanged, notably the lack of
deterrent penalties.
¶13. (SBU) COMMENT AND ACTION REQUEST. The next six months will
provide some limited opportunities to fine-tune the bill, notably in
the drafting of implementing regulations, which the GOF can issue by
decree. Other options would be to raise examination of the
legislation in light of other EU member state transpositions as well
as WIPO and TRIPS commitments. Post would appreciate Washington's
cleared interagency guidance, including any legal analysis regarding
the legislation's impact. End Comment.
Stapleton
If there was threat that Apple “would pull its business out of France,” let them. Better yet, boycott the company in France. █
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