The APRIL, a French association promoting open source software, has requested the annulment of a decree which specifies that possessing or using technologies that circumvent technological protection measures for copyrighted works (thereafter TPMs or DRMs for Digital Rights Management) should be punished by a €750 fine. According to the association, this provision which indiscriminately punishes all uses of DRM circumvention technology, threatens the existence, use and development of open source software which entails, in many instances, such circumvention.

[Article last modified on June 25, 2007. The author would like to thank Frédéric Couchet from the APRIL for his comments and suggestions. ]*

On February 19, the association for the promotion and research in free software, l'Association pour la Promotion et la Recherche en Informatique Libre (the APRIL), launched an action before the Conseil d’Etat, the French supreme court in administrative matters. This action requests the annulment of a decree completing the anti-circumvention provisions of the new copyright law (known as the Dadvsi law) which has substantially modified the French Intellectual Property Code (IPC).

1. The decree introduces a €750 fine for possession and use of DRM circumvention technologies
The decree , issued by the French Government on 23 December 2006, introduces in the IPC the Article R. 335-3 which punishes with a maximum fine of €750 the fact of “possessing for personal use or of using a technological application, a device or a component designed or specifically adapted to circumvent” a DRM or the fact of “using a service designed or specifically adapted” for such circumvention. (The same provision also applies to the alteration of Rights-Management Information under the new Article R. 335-4).

However, the decree allows for a narrow exemption to this broad prohibition as both articles provide that these “provisions do not apply for acts which do not prejudice rightholders and are realised for the purpose of IT security or scientific research into cryptography.”

2. The APRIL argues that this decree imposes an unfair and disproportionate threat on users of open source software and the whole movement of open source software
The core argument of the APRIL is that such a blanket prohibition on the possession and use of circumvention technology threatens open source software since many of its devices or applications rely on circumvention technology to operate. The APRIL points to the fact that, for instance, DVDs sold by the entertainment industry, as any other DRM-protected media, can only be played on open source applications with the help of circumvention technology. Consequently, all users wishing to watch on their non-proprietary systems the movie they have legitimately acquired have no option but to circumvent the DVDs’ DRM technology (known as CSS) and thus break the law and face criminal sentences. The association fears that putting all users under such a threat could hinder the progress of open source.

Below are some of the points put forward by the association to make the case for the annulment of the decree:

The decree threatens people who are unaware that they circumvent DRMs and imposes a disproportionate threat on open source software
The APRIL claims that the decree breaches the 2001 European Copyright Directive (thereafter the EUCD) because it punishes even those who are unaware that they circumvent DRMs.

The association quotes Article 6-1 of the EUCD which provides that “Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.”

The APRIL, argues that the requirement that only those who carry the circumvention “in the knowledge or with reasonable grounds to know, that he or she is pursuing that objective” should be punished is not in the decree. Therefore the decree is in violation of the EUCD as it punishes acts that the EUCD did not intend to punish.

Furthermore, the APRIL points to recital 48 of the directive which states that the legal protection of TPMs “should respect proportionality and should not prohibit those devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection.”

The association then argues that most users are unaware of the fact that their open source software may circumvent DRMs and therefore should not face criminal sentences.
The APRIL also argues that even if the requirement of such awareness were introduced, the decree would unduly threaten most users. This would potentially outlaw all publishing activities related to open source even though most of them have a commercially significant purpose other than circumvention. For the APRIL such a blanket threat would be in breach of the principle of proportionality set in the EUCD.

The interdiction to use circumvention technology in open source software breaches the right to interoperability
The APRIL gives the example of DVDs which are protected by the DRM known as CSS and are not designed to work on open source software. The only way for a person who has bought a DVD to play it on open source software is to circumvent the CSS with the computer program known as DeCSS.

The APRIL acknowledges that any user circumventing DRMs in such a way would technically breach the law and face the €750 fine specified by the decree. The purchaser of the DVD could not even claim the benefit of the exemption from prosecution, the APRIL argues, since, though the acts of circumvention comply with the first condition of not causing a prejudice to rightholders [the user having purchased the DVD], they do not comply with the second condition that they “are realised for the purpose of IT security or scientific research into cryptography.”

The APRIL argues that it is a misinterpretation of the law to criminalise such frequent and common acts. The scope of the criminal offence is far too broad, especially since it does not allow for the implementation of interoperability, a concept enshrined in the IPC. The association refers to Article L. 331-5, introduced by the Dadvsi law, which provides that TPMs “must not have the effect of preventing effective interoperability” and Article L. 122-6.1 which allows, under certain conditions, for the creation of interoperating software.

For the APRIL, “it is obvious that the decree does not allow for the crucial interoperability exceptions as it criminalises the technology indispensable to operate all devices and systems that read [data sold commercially].”

Open source users could be denied an equal access to public procurement contracts and e-government

For the APRIL, there is a risk that users of open source software could be unlawfully denied access to procurement contracts and to online public services. The French State is in the process of digitising the administration of procurement contracts, making it, in most cases, compulsory for individuals and companies to apply online. If the administration choses DRM-protected interfaces, individuals and companies using open source software will not able to respond to invitations to tender. This would put them at a disadvantage with those of their competitors using proprietary software.

There is also a concern for the APRIL that public entities may put on their websites DRM-protected content which would only be accessible by users of proprietary software [as an example we could cite the online tax self-assessment service which initially could not work with open source software]. Citizens using open source could thus be forced to circumvent DRMs in order to access content or services which would put them under a legal threat not faced by users of proprietary software.

This, argues the APRIL, constitutes a breach of the legal requirement set in French administrative law that all citizens and companies should have equal access to public procurement tendering and to public services (principe d’égalité devant le service public).

Members of the French Parliament, the judiciary and the police should be the first to face criminal prosecutions
The APRIL then notes that in the past few years successive governments have pushed for the use of open source software within public entities and services. The association highlights that, for instance, some divisions of the police and the judiciary now use open source software and that the lower house of parliament has also recently opted for open source. The APRIL then contends that, if the decree was to be maintained, members of these bodies would, like any other open source software user, face criminal prosecutions. However, the association doubts that public bodies woud ever be threatened by such prosecutions. That would be unacceptable as it would create double standards for open source users according to whether they are public institutions or mere citizens.

An increased legal uncertainty for open source software
The association claims that this decree adds to the complexity of the legislation on open source software and increases the level of legal uncertainty which could gravely hinder the development of the movement.

The decree breaches the constitution
The April argues that the decree is unconstitutional for being either too vague, as it does not clearly defines what constitutes “a device or a component designed or specifically adapted to circumvent” or disproportionate, as it would threaten with important fines common and legitimate uses of open source software.

3. Don’t hold your breath, though
These are all crucial questions for the future of open source software and are hotly debated at the moment. However, a decision on the fate of the decree will take some time to come. According to Christophe Espern of the APRIL, “it will take the Conseil d’Etat around eight months to decide whether to accept the case or not, and then between one and two years for a final decision” (in Crouzillacq). As Philippe Crouzillacq aptly put it “the APRIL will have the opportunity to appreciate the difference between technology time and legal time (la différence entre le temps informatique et le temps juridique).”

(*) Modifications from the original version in [ ]:

... DVDs sold by the entertainment industry, added: [as any other DRM-protected media], can only be played on open source
… to circumvent the CSS with the [computer program] known as DeCSS instead of [software]

... About public procurement; added paragraph: [For the APRIL, there is a risk that users of open source software could be unlawfully denied access to procurement contracts and to online public services. The French State is in the process of digitising the administration of procurement contracts, making it, in most cases, compulsory for individuals and companies to apply online. If the administration choses DRM-protected interfaces, individuals and companies using open source software will not able to respond to invitations to tender. This would put them at a disadvantage with those of their competitors using proprietary software.]

...The APRIL argues it would be [a misinterpretation of the law] to criminalise…instead of [illegal]

... About criminal prosecutions; added paragraph: [However, the association doubts that public bodies woud ever be threatened by such prosecutions. That would be unacceptable as it would create double standards for open source users according to whether they are public institutions or mere citizens.]

 

Sources

Legal texts

- Le décret n° 2006-1763 du 23 décembre 2006 "relatif à la répression pénale de certaines atteintes portées au droit d’auteur et aux droits voisins" (J.O n° 302 du 30 décembre 2006 page 20161).

- Requête en annulation du 19 février 2007 de L’APRIL contre le décret n° 2006-1763 du 23 décembre 2006 "relatif à la répression pénale de certaines atteintes portées au droit d’auteur et aux droits voisins".

Media

- Le 1er décret relatif à la loi DADVSI est paru. Legalis.net, 2 janvier 2007.

- Christophe Guillemin, Un décret de la loi Dadvsi attaqué par des défenseurs des logiciels libres. ZDNet France, 21 février 2007.

- Benoît Sibaud, L'APRIL défend le Logiciel Libre devant le Conseil d'État. LinuxFr.org, 21 février 2007.

- Marc Rees, DADVSI : l'April attaque le décret sur les protections anticopie. PCinpact.com, 21 février 2007.

- Philippe Crouzillacq, Les défenseurs du logiciel libre demandent l'annulation d'un décret sur les droits d'auteur. 01net., 22 février 2007.

Illustration:

- From the APRIL's website

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