French Government Lobbied to Ban Free Software

[MJ Ray]

Chris Lingard <chris at stockwith.co.uk>
> If you like, send/link anything in English; I may be able to get it
> on groklaw.net or other blogs

Here's a JFDI translation of 
http://eucd.info/index.php?2005/11/14/175-exclusif-amendement-interdisant-les-logiciels-non-equipes-de-mesures-techniques
I'm not an experienced translator and I've deliberately
changed some tenses to make it feel better in English,
but I hope I've not changed any senses. I've no idea
whether the French was easy to read to begin with. The
law reads like legalese to me ;-)


Exclusive: VU/SACEM/BSA amendment forbidding software not
equipped with technical measures.

An amendment to the proposed DADVSI law has the aim of making
criminal counterfeiting out of publication, distribution and
promotion of all software susceptible to being used to open up
data protected by author's right and not integrating a method of
controlling and tracking private usage (technical measure). All
software permitting downloads is concerned, such as certain
instant messaging software (chat) and all server software
(P2P, HTTP, FTP, SSH). This surrealist amendement has been
redirected from its start by Vivendi Universal, then reworked
by many members of the Sirinelli commission, a commission of
the High Council of Literary and Artistic Property [CSPLA].

-----

As well as constituting a death blow to the rules of law
giving the right to publish free software that can open data
by electronic routes - and therefore to carry harm to freedom
of expression and to the moral rights of divulging of the
authors of free software - the forseeable impact on innovation
("chilling effect") and on free association of this amendment
is evident. Tomorrow, all software allowing a new use should
pass through the filters of the majors. All software not
carrying a Microsoft, Sony or Apply software spy will be illegal.

This amendment seems to be inspired by the proposed SSSCA/
CBDTPA law, an American law proposal that was finally rejected
because it threatened the American economy and national
security.

At the time, the American branch of the ACM, an assocation
of informationalists founded in 1947, wrote to the senator
proposing the law:

    In our society, we have achieved technological
    excellence, research leadership, and educational
    preeminence in the world through the free exchange of
    information and the freedom to innovate. Copyright was
    intended to support those goals, not restrict them for
    entertainment companies. The explicit embodiment of
    "fair use" provisions in the law has contributed to
    our many successes. Any further legislative action -
    such as the SSSCA - which focuses on constraining or
    outlawing technology instead of penalizing behavior
    can only serve to weaken our educational systems,
    impede our technological dominance, and interfere with
    our electronic security. {Note 2}

That applies perfectly to the VU/SACEM/BSA amendment...
apart from the fact that France is not in a situation
of "technological dominance"...

Notes

1. it is not possible to make a technical measure in
free software, given that a technical measure takes
control of the computer by secret mechanisms. It's
totally contrary to free software, which permits
mastery of the system by the user through openness
of the code. See our communique to the office of the
minister of industry.

2. ACM, USACM Letter to Sen. Hollings on SSSCA, 2001
http://www.eff.org/IP/SSSCA_CBDTPA/20010926_usacm_hollings_letter.html

-----

Is assimilated to a crime of counterfeiting:

1st - the act, in knowledge of causing, publishing or
putting on public access, under any form that it is,
a software manifestly destined to put on unauthorised
access to the public of works or objects protected by
a literary and artistic right that doesn't understand
the measures for, by a state of technology, preserves
these protected works or objects against an
unauthorised use.

2nd - the act of publishing or putting on public access, under
any form that it is, a software other than that described in the
1st above, since, having knowledge of that which the software
is manifestly used for the putting on unauthorised access
to the public of works or objects protected by a literary
and artistic right, the publisher has not taken measures,
by a state of technology, to preserve these works or objects
protected against an unauthorised use.

3rd - the act, in knowledge of causing, of directly promoting
the putting on public access under some form that it is or
the use of a software described in 1st or 2nd above.

4th - the above provisions apply without prejudice to the
application of the provisions of article L121-7 of the Penal
Code and those of the law of 21 June 2004.




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Hope that helps,
-- 
MJ Ray - personal email, see http://mjr.towers.org.uk/email.html
Work: http://www.ttllp.co.uk/  irc.oftc.net/slef  Jabber/SIP ask