[Fsfe-france] Interview Martin Keegan

[Loic Dachary]

        [Apologies to french speaking people]

        Martin Keegan is extremely active on the EUCD front at
http://ukcdr.org/issues/eucd/ and has an extensive knowledge of the
subject. I called him today to collect his thoughts and pointers in
order to help draft the synthetic document that Christophe Espern is
writing.  I hope Martin Keegan will be kind enough to correct possible
inaccuracies in the transcript of the interview and/or in my
understanding of his answers.

        http://www.eurorights.org/eudmca/WhyTheEUCDIsBad.html is an
extremely well writen document from which we can get inspiration.
http://www.tekool.com/droit/eucd_es.htm is the draft document of
Christophe Espern. The main difference between the two is that
Christophe Espern researched and identified reference documents that
develop each point in detail.

        UKCDR document has the following points, in addition to Christophe
Espern listed points:

        . Copyright law is replaced with technology (the most important
          point according to me, although I have no clue wether a
          reference document is available to develop this point)

        . No 'first sale' for non-physical works. 

        . Mass-market licenses. (unsure if this would apply in france)

        . Cryptography research (implied in other arguments but not
        separated by itself)

        The interview itself:

----------------------------------------------------------------------
For each point I'd like you to explain very briefly (no more than a
few phrases) why EUCD has the effect described and cite the best
document available that explains this effect in detail.

. Prevent private copy of works

Most european countries permit copies. That's a matter of fair law.
If technologicaly it is possible to prevent this. As a result of the
EUCD ban of mean of circumvention, it becomes practicaly impossible
to do private copies.

Reference: Julie Cohen

. Censorship about means of intrusions (viruses etc.)

The EUCD does not prevent security researches from talking about their
problems in the way the DMCA is believed to do. 1) the EUCD does not
ban the provision of information only the provision of means. It only
bans provision of mean that are primarly designed to circumvent the
technological mean. DeCSS is primarly designed to circumvent. The
security researches will not have to distribute.

The EUCD in the preamble says that this measures should not restrict
research in security but many countries did not take this into
account.

Reference: Pamela Samuelson / director of the EFF
        Anti Circumvention rules threaten science
        The law and economics of reverse engineering
        Detecting viruses.

. Prevent the right to use

The effect of the EUCD is indirect. It makes it harder or impossible to 
distribute
software that allows to use the work. The user will have to buy a separate 
hardware
approved by ???.

All use requires a reproduction. But it's unclear in copyright
law. The EUCD does not help. It has the effect of making uses for the
general public that were not explicitly intended by the copyright
holder either very expensive or extremely unpracticable, even if the
general public bought a copy of the work.

Reference: ??

. Prevent freedom to create software

At present anyone is allowed to write any kind of software. Because of EUCD
some software cannot be written.

The precise extend of the EUCD is important. It says software whose primary 
purpose
is to cicrumvent technological measure. The right holder is encourage to design
protection measure that cannot be circumvented by generic measures but by 
systems
specificaly designed for this purpose. 

Article 10 of the EC Human Rights : I have the right to express myself, freedom
of expression. But the state can impose restriction for the protetction of 
others.

Reference: DeCSS

. Negate the principle of libraries and equal access to culture

Libraries and archives are part of the bridge between generations. Some mediums 
such
as paper and velum are volatile although they survive hundrededs of years. 
Digital
workds can last for ever. Technological protection system even without EUCD is a
major threat. It is to stop people to have access, to limit to a specific 
people in 
specific occasions. It is completly contrary to the idea of libraries. The EUCD 
is 
a message that says : the state agrees to this. 

What the DMCA bans the tools that librarians need to carry out their
social work, for ever.

Reference: Library of congress excellent document adressing this specific 
problem.

. Encourages abuse of dominant position (practices in restrains of trade)

Competitive markets depends on consumer and busnisses ability to substitute
the product of one company by the product of another company. For simple goods
this is trivial. For digital goods where their may be a cryptographic lock it
may not be possible. The EUCD thru article 6 prevents companies who need to 
reverse engineers the product to create a compatible public. Because reverse
ingineering always involves circumvention. Therefore companies can rely on
EUCD to prevent other companies from crafting products that are compatible
or substitutable.

Reference: Pamela Samuelson
        Law and economics of reverse engineering (4th part)

. Force illegal agreements (in monopolistic context)

Same.

Reference:

. Prevent fair competition

Same as above.

Reference:

. Force the consumer to buy specific products when buying an unrelated
  product, reduces the freedom of choice

Not necessarily in a monopoly. THere may be two products tied : a
right shoe and a left shoe have this relation. In the technological
market if you have a french plug you can only use it in french
electrical system. With digital system you need to talk TCP/IP to be
on the internet. This is a dependance.  Where the interface involves
technological protection measures then the EUCD effectively prevents a
competitive market in complementary goods for some products. Exemple :
inside sony ps2 console prevents anyone from copying a CD with a
normal CD burner. It also prevents companies to write games for the
ps2. There is a complementary product, EUCD forbids circumvent, therefore
one side can control the market of the games by controling the ps2 AND
the technological measure. 

Reference: Pamela Samuelson
        Law and economics of reverse engineering (4th part)

. Censorship about security measures protected e-commerce servers

Weak argument. Because the EUCD says that one should not prevent research.

Reference: ??

. Threaten interoperability

CS term to obtaining compatibility. See above (force consumer)

Reference:

. Privacy of users 

You may circumvent a protection system if you need to to do this to protect your
privacy. The EUCD does not say this. But there is a requirement in France to 
respect
privacy (article 8 ECHR) .

Reference: (no reference, that's ok but must be translated)

. Apropriatness of criminal status of violators

We try to stop appropriation of works. We do allow certain appropriation in the
case of fair use. Not all copying is right but we allow some of it. Banning 
circumvention is for not banning copying. DMCA is one step forward to create
a situation where all lawful use become forbiden. Strong criminal sanction 
are very inappropriate. 

-- 
             Sauvez le droit d'auteur
Loic   Dachary   http://eucd.info/  address@hidden
              Tel : 33 1 42 76 05 49