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I’ll have more to say in a future post about the situation in France involving iTunes and Apple’s proprietary “Fair Play” technology. Briefly, the French government is considering a bill which would require Apple to share it’s proprietary digital rights management (DRM) technology so that a consumer could play songs downloaded on iTunes on any iPod-competing music player.

This is big news for Apple, as it threatens the near-monopoly they’ve developed on portable music players and online music downloads. And as iTunes is positioned to be a market leader in movie downloads as well, anything that challenges their business model is news for independent filmmakers too. (Like I said, I’ll write more about this later, but I really think we need to be fighting what it looks like Apple will be doing — setting up a uniform $9.99 per movie download, a pricing scheme that, I believe, will work against independents who won’t have had huge P&A budgeted theatrical campaigns to establish their value in the marketplace.)

But I did want to log on and quickly post this unexpected link to an article by Timothy Lee published by the right-wing Cato Institute, which also has some problems with the U.S. laissez-faire attitude towards corporate-initiated DRM technologies:

The courts have a proven track record of fashioning balanced remedies for the copyright challenges created by new technologies. But when Congress passed the Digital Millennium Copyright Act in 1998, it cut the courts out of this role and instead banned any devices that “circumvent” digital rights management (DRM) technologies, which control access to copyrighted content.

The result has been a legal regime that reduces options and competition in how consumers enjoy media and entertainment. Today, the copyright industry is exerting increasing control over playback devices, cable media offerings, and even Internet streaming. Some firms have used the DMCA to thwart competition by preventing research and reverse engineering. Others have brought the weight of criminal sanctions to bear against critics, competitors, and researchers.

The DMCA is anti-competitive. It gives copyright holders—and the technology companies that distribute their content—the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.

Fortunately, repeal of the DMCA would not lead to intellectual property anarchy. Prior to the DMCA’s enactment, the courts had already been developing a body of law that strikes a sensible balance between innovation and the protection of intellectual property. That body of law protected competition, consumer choice, and the important principle of fair use without sacrificing the rights of copyright holders. And because it focused on the actions of people rather than on the design of technologies, it gave the courts the flexibility they needed to adapt to rapid technological change.

The entire article can be downloaded through the link above. And for more from Lee, check out his blog, Tech Liberation, which has much smart, nuanced opinion about various digital rights issues including a post on why the French iTunes-busting initiative may not be so smart after all.

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