Earlier this year, the Trans Atlantic Consumer Dialogue provided the US and the EU governments with a list of consumer principles relating to DRM. At the time, the EU officials seemed receptive to consumers' concerns. But just a few days ago, we received an extremely disappointing response from the EU (the relevant portion begins at page 20).
Essentially, they claim that DRMs are important in and of themselves, and that there is no such thing as users' rights to content.
This response is completely unacceptable, and reflects a poor understanding of either the principles submitted by TACD, or of the European law that the Commission is itself citing.
One of the most egregious examples from this response is the assertion that circumventing DRM is illegal even when the DRM is preventing legal uses:
Re 10) Principle of circumvention/removal
This would not be in compliance with Member States' and the EU's international obligations to provide adequate legal protection and effective remedies against the circumvention of effective technological measures (WCT and WPPT). Rights holders are free to apply DRM/TPM provided that these DRM/TPM respect applicable legislation (e.g. privacy).
Actually, these principles are directly in line with the EU Copyright Directive (which presumably complies with the WCT and WPPT). Article 6, paragraph 4, says:
notwithstanding the legal protection provided for [for DRM] in paragraph 1, in the absence of voluntary measures taken by rightholders and other parties concerned, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law …the means of benefiting from that exception or limitation…
So if the rightsholders don't make lawful uses available to users of DRM-encumbered content, European countries are obligated to make sure that those uses are available. So what's so non-compliant about TACD's request?
Furthermore, the EC says that rightsholders can apply DRM so long as they respect applicable legislation. But what if they don't? Are users going to be handcuffed to illegal software by threat of liability for circumvention? Some seriously twisted priorities are at work here.
The response reads like a set of talking points from a European record label, rather than the careful response of government authorities who must consider the various consumer, industry, and human rights interests that can all be affected by DRM. For instance, the response incredibly claims that it's an objective of the EC to promote DRM:
The Commission services' objectives concerning Digital Right Management systems (DRMs) are:
To contribute towards take-up of DRMs in order to achieve digital technologies' full potential in terms of creation, dissemination, and access to 'rich' online content, which in turn favours the development of the information space and the content industries;
Funny, I'd have thought that the purpose of the law was to ensure a fair balance between the rights of copyright holders and consumers, regardless of the technological mechanisms used. Now where would I get a crazy idea like that? Maybe from the Copyright Directive, again, this time from paragraph 31 of the preamble:
a fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded.
There are more outrages built in to this document; I'll have additional analysis of this response in future posts.