Wednesday, April 20, 2005

French Court Confirms: Copy Protection Measures Legal

Yet again a French court has confirmed that copy protection measures are legal. Last Friday the Court of Appeals of Versailles noted that while a music company may be liable for a refund of a CD's price if the used DRM prevents it from playing on certain devices, the implementation of DRMs is allowed if the user is sufficiently forewarned of its presence.

The headline of this posting, an echo of the French media coverage [e.g. 01net, French], is somewhat sensational. This case is really about labeling, and, much more interesting, about how consumer protection law may have a (future) presence in the protection of consumers (users) against DRMs. Since I have not yet seen the particular decision of the Court of Appeals, I refer to the (confirmed) decision of September 2003 by the Tribunal de Grande Instance of Nanterre that was on appeal [First decision on page, French].

In 2003 the French consumer organisation UCF did question the legality of the use of DRMs after a French woman wasn't able to play her CD in her car stereo (a Renault Clio). The Nanterre court did not come to answer it on procedural ground, and instead considered that:
Fran├žoise M. (the consumer) established that the CD in question was not playable on all her devices, that this anomaly restricted its usage and constituted a hidden defect within the sense of Article 1641 of the French Civil Code. [INDICARE Report, p. 59]
That is, one of the main characteristics of the purchased product (playability) is not present and the consumer's legitimate expectations towards the use of the CD have not been met. This could be considered a "breach of contract" between the retailer and consumer, and lead to a liability related to Article 3(1) of the European Sale of Goods Directive (lack of conformity). (See INDICARE report, pp. 58-60). The French decision in question argued along these lines, though based on French law.

What's important about this legal reasoning is that the protection of consumers against (overzealous) DRMs is sought outside the (traditional) realm of copyright law. While the lack of balance between rightsholders and consumer interests within copyright (e.g. Article 6 v. 5 EUCD) is a point of concern that should be solved, consumer protection law may prove to be of increasing importance in a time that the commodification of information speeds on.

What's unclear is in how far consumer protection law is applicable on the copyright flavoured situations as raised by the French case. For example, would private copying be considered an essential characteristic of a DVD or CD and is it a legitimate expectation of a consumer? Another French court already decided to the contrary. A decision that has been appealed and will be decided upon in a few days. Expect more sensationalistic headlines, e.g.: "Court Kills the Right that Never Was." Time for new rights, time for consumer protection law.
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Background info: Much of this is a reflection of the (Legal chapter) INDICARE State of the Art report [PDF] (pp. 48-49, 55, 59-60)
Also It's not a right, silly! by Natali Helberger on the (French) private copying cases
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Update: Those few days are over and the decision is in: French Court: DVD Protection Incompatible with Private Copying Exception


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