Memoire Online - La gestion des DRM en perspective

«... the only source of inexhaustible and permanent improvement of progress is freedom, since thanks to it, there can be as many hearths of progress individuals».

«All the primary education social goods must be also distributed, unless an unequal distribution of one of these goods is not with the advantage of the least favoured».

Synopsis

Glossary

Key: A key is a secrecy necessary to identify a mark. In the principal models of watermarking, it as well makes it possible to register the mark as lira or to remove it. This is why it must remain secret. The protocols setting up this type of marking at symmetrical key utilize the use of third of confidence, guards of the key.

Cryptology : to transform data, which it acts of information or signals, using secret conventions or to carry out the opposite operation of this transformation with or without secret convention

Fingerprinting: The fingerprinting is an application of the watermarking in which the mark (the print then is said) varies from one person to another. In the case of a diffusion of illegal copies, one can thus find the people whose specimen of the medium is at the origin of the fraud.

Rights Went back Dictionary - Dictionary to rights : aim at defining an organized list of terms corresponding to granted rights, while envisaging the possibility of managing different significances according to the legislation.

Rights Expression Language-- Language expressing the rights : aim at defining the granted rights, the recipient, the resource concerned and the conditions for application.

Steganography: The steganography is the science which consists in hiding information in any medium so that only a user provided with the adequate secrecy can find this information.

Tattooing: A process of marking utilizes two concepts: tattooing and the extraction. Tattooing is the stage where the mark is encrusted on the medium.

Traceability: This Anglicism indicates the possibility «of tracing» a culprit : when a reasonable coalition of size people agree to break a safety (cryptographic or of marking), one wants to identify at least one of the members of this coalition.

Watermarking : Process which consists in hiding in a file a code of property quantified to guarantee the royalties in particular and/or to limit his use. It supplements or replaces the encoding of the type DRM.

Abbreviations

AAC:	Audio Advanced Coding
CSPLA :	The Higher Council of the Author's copyright and Artistic
CGV :	General conditions of Sale
CJCE :	Run of Justice of the European Communities
:	Encryption Standard dated
DMCA :	DIGITAL Millennium Act Copyright
DRM :	DIGITAL Right Management, Management of the numerical rights
FAI :	Suppliers of access to Internet
GDN :	Management of the numerical rights, DIGITAL Right Management
HTML :	Hypertext Markup Language
LEN	Law on the Numerical Economy
MP3 :	Motion Picture Group Experts, Audio To bush-hammer 3
MPEG :	Moving Picture Expert Group
ODRL :	Open DIGITAL Rights Language
RDD :	Rights Went back Dictionary - Dictionary to rights
REL :	Rights Expression Language-- Language expressing the rights
WMA :	Windows Audio Media
XML :	extensible Media Trades Language
XrML :	extensible rights Markup Language

Introduction

The remote loading of the files commonly is accepted and used among the Net surfers today. However, these numerical media, if they are legally available to the sale ex depot, are not it, in particular and with proof of the opposite, on the networks of P2P. Indeed, the royalty must apply and it is well accordingly that the artists, the editors and producers are worried by the protection of their works.

Also, gradually, of the provisions were created in order to protect the unit from these contents as well from a technical point of view as of the management of the rights. The DRM include/understand a whole of technologies making it possible to protect the royalties by quantifying the contents and by authorizing only one access limited and controlled according to the rights associated with those.

Traditionally, protection systems of the royalties who prevailed, rested on a fragile balance between the protection given to the author of work and thus a recognition of these exclusive rights on this one counterbalanced by a series of exceptions for specific uses.

This balance was broken because of evolution of numerical technologies. Indeed, if front, the reproduction with identical was not possible that in a degraded way, the numerical one makes it possible from now on to make copies perfectly in conformity with the original, without loss of quality and in a time and for a price records.

This was also reinforced by the provision for the users of computers increasingly more powerful, having an exceptional storage capacity. Moreover, correlatively the development of the Internet, the migration to the top flow makes it possible to exchange, download and diffuse in record time any type of contents in particular through the diffusion of software P2P.

Thus, counters the threat of a perversion of the system and for the respect of the royalty, the DRM were thought like one of the possible alternatives to the respect of the rights of each one.

However, as recalled by Daniel Semaya^1(*), it is necessary to pay attention to the manner of setting up the DRM. Indeed, « The introduction off technologies that frustrate the to consume and limit to fair uses off will hurt the successes DRM yew consumers will not stand for it ».

It is important to understand well today, that we are still during a time of choice. I.e., that at present, that it is a question of industry musical or cinematographic, the choice of measurements which will be snuffs and misent in place was not stopped yet.

The various recent initiatives^2(*) in these sectors are rather a period of natural test size from which strategic decisions will be made either in favor of a protection by measurements technical adequate and effective being based at the same time on technological but also juridically framed choices what will then make it possible to develop new economic models or worms of the mixed models combining a protection certainly effective but limited in term of management of rights for example.

One of the keys to success of the initiatives which will be proposed to the users resident in the adequacy, in particular in France, of the technical measures taken in comparison with the concept of private copy. Indeed, it is important to understand that technical measurements, and it is one of the major difficulties, must take into account the whole of the perimeter corresponding to this concept and the uses of these media.^3(*)

Preliminary chapter : Technology with the help of the right

The need inherent in the installation of a management of the numerical rights comes owing to the fact that, at least on Internet, there is an increasing number of processes making it possible to circumvent the technical measurements installation on the various types of supports. In this respect, one will refer in a very didactic article of Shantanu Rastogi^4(*) in which the author delivers the various means quite simply to us, to have access to any type of files and to exchange them. without too many efforts

The principal list including/understanding the following techniques : the networks Peer to Peer (P2P), the newsgroup, the cat (via the Internet Relay Chat), the sites of auction sales, the protocol File Transfer Protocol (ftp), the shops «will warez», the aces, the patches, the generators of job numbers, the distribution of the images discs (Iso).

Section 1- technical preconditions

Before immersing themselves in the management itself of the DRM, wondering about operation inherent in this management of the rights is a paramount stage. It makes it possible to apprehend in all its width the implications as well technological as legal which are in plays.

Thus, one will study successively technologies of applicable cryptography as much for the protection of physical supports that for the access control and the use of the digital components and technologies of watermarking, usable for the recognition of the rights, but also the traceability, the analysis of audience or the fight against the counterfeit, etc

§1- Cryptology

Cryptology is heard here like E so many the concept of coding the data at ends of nondisclosure and nonreproduction.

Also, one will endeavor to consider the major concepts of cryptology for then harnessing itself to practically identify what that implies on the level of the protection of the contents.

With- major Concepts

Before returning more in detail in the problems of cryptology, a short recall of the concepts of cryptology will make it possible to dissociate cryptography with secret key (or symmetrical key) of cryptography with private/public key (or asymmetrical key). Indeed, cryptography with secret key is used mainly for the protected transfer of the messages and the documents. Cryptography with key private/public, more personal and more expensive in data-processing computing time, is used to quantify the most significant parts of the messages: it is at the base of the concepts of fingerprint, signature, seal, electronic envelope.

1- cryptology with secret key

In a system of use of cryptography with secret key the various speakers divide the same key which will be used with the transmitter with crypter the message and the receiver to decipher it.

The algorithm with secret key most known is^5(*) and insofar as it can be « broken », it is preferable, at ends of safety, to frequently change the key : what brings us to a system known as of hierarchical keys.^6(*)

2- cryptology with asymmetrical key

The principle of cryptography by private/public key lies in the existence of a couple of keys for each interlocutor. These two keys, one private and the other public one, are generated at the same time and are closely dependant. The private key is personal and does not have to be revealed with which that is. Conversely, the public key can be accessible to no matter whom, for example directly on the network. The principle of use is as follows : an encrypted message with a public key is décryptable only by the corresponding private key. Conversely, an encrypted message with a private key can be deciphered only by its public key.^7(*)

This system is often used in relation to mechanisms of authentification and electronic signature. It is besides this one which was « adoptee » by the 13 the Mars law 2000 which transposed the directive on the electronic signature from December 13, 1999.^8(*) Nevertheless, this type of coding is generally rather slow. Also, « one frequently uses the system of «the numerical envelope»: the message is transmitted quantified with a random symmetrical key «M», and the key «M» is transmitted quantified with the public key of the recipient ». ^9(*)

B- Protection of the contents

The interest of the installation of a system of DRM is related to the fact that it is about a technology which makes it possible to the owners of contents to protect their products. Indeed, protection is ensured by the encoding of the multi-media contents and authorizes the access only to the people in possession of the license to read this one.^10(*)

The protection of the contents is closely related to the selected type of protection. One will remember, for example, protection associated with the DVD, the algorithm CS (Content Scrambling System) which was, inter alia, broken by Jon Lech Johansen.^11(*) As example, it is right now recommended to use lengths of keys of 80 bits for symmetrical algorithm TDES and of 1024 bits for asymmetrical algorithm RSA. ^12(*)

§2- Tattooing

The techniques of tattooings, mainly the watermarking, or the fingerprinting, have as an aim of « to add, on a medium (which can be an image, a song, a video film), a mark which must be sufficiently unperceivable not to deteriorate the medium and sufficiently robust to be able to be detected even after treatment of the medium that it is a usual treatment or that resulting from an attack of the system of marking ».^13(*)

The interest of the watermarking and the fingerprinting, one will have included/understood it, lies in the fact that it inserts in an unperceivable but so specific way a mark inside contents ; what allows then « to follow ». However, it will be necessary, like technologies of cryptology to key, to choose the best manner of crypter this mark. According to Sirs Brunet and Raynal, if it « asymmetrical marking represents the panacea. More need for third of confidence, the mark is a property of the medium that everyone can read. And yet, nobody can remove it. However, one did not find an algorithm valid of marking asymmetrical ».^14(*) Also, it seems that that is it « marking plugs that it is advisable to use in the measurement of course where the algorithm of marking is solid cryptologiquement ». ^15(*)

Thus, like points out it Philippe Chantepie, the use complementary to these two techniques is necessary within the framework of a system of GDN.

Indeed, the fingerprinting allows the traceability of work, control by identification of the diffusion of works and the watermarking the administration of the evidence as for the integrity, the origin, even the titularity, if it relates to the mode of the rights of works, the control of the reproduction, the checking of the modifications of information or deteriorations of works. ^16(*)

Despite everything, it is by no means a question of setting up inviolable systems because that would require too heavy investments and would probably not facilitate the use of the consuming users/. The phenomenon of the counterfeit and the hacking always exists and will exist, no technology not being completely reliable.^17(*) The goal being more in correlation with the principle of precaution and proportionality to knowing, to establish a subtle and adequate balance between the whole of the chain, the artist to the producer, the diffuser and finally to the consumer. ^18(*)

§3- the Language

If the techniques of cryptology are necessary to the numerical management of the contents, that cannot be done without a suitable language. That implies in this field a convergence of the whole of the actors towards a common language.

At present, there are no yet standards ; on the other hand, one can indicate right now that the standards have a common base, metalanguage XML already used and adopted in industry.

If, for the moment, no decision were still taken, it would seem nevertheless that XrML was adopted for standard MPEG-21.^21(*) This question is determining insofar as, the description of the rights « as well determine nature originating in the rights of author's copyright and artistic that the place and the function of the respective actors, and the whole of the modes of uses of works, in other words the marketing strategies present and future ». ^22(*)

The stake is all the more important as it is about a language owner thus being the subject of rights, which is not the case with the ODRL. ^23(*)

Major interest of the language, beyond the purely technical aspect being which it is about a language known as of description of the rights consequently making it possible to set up documents by contract having vocation to define precisely « legal conditions of operating and use of certain works by certain people under certain conditions (...) : A numerical system of management of the rights thus associates a language of description of information on the rights with technical protection measures aiming at controlling the respect of the contract ». ^24(*)

Thus, it will be allowed to exert the rights of access to the contents by completely dissociating the supply of the support of the rights associated with this one.^25(*)

Section 2- industrial preconditions

In order to better determine the implications related to the DRM, it is necessary to include/understand which are the various actors who can be concerned with these problems for then considering the bringings together of those at ends of interworking.

§1- actors

The stakes here, is to be interested in part of the active actors in the field of the GDN and having a need growing for development of these measurements in order to take into account economic realities increasingly more complex.

They are mainly four types of actors^26(*) who will have, so that the whole of the systems functions in a satisfactory and transparent way for the consuming users/, to cooperate and develop technologies which will have in fine being interopérables.

These categories interdependent and are primarily gathered on a side in the electronics industry general public^27(*) where the stake is in particular centered around the systems of reading and recording of optical supports (Audio CD, DVD) and in the data-processing industry^28(*) which is in the middle of what one can call computer equipement and includes in particular different components multimedia for the PC as well as the software systems of reading, compression/decompression, and transmission by Internet of works. And, other of the software publishers DRM^29(*) and specialists in technical protection.^30(*)

For each one of these actors, the stake is serious. Indeed, if one takes again one of the markets which interests these industries, Forrester Research envisages, for the music on line « an exponential growth of the sale of music in numerical form. The estimates of the market for 2004 vary between €900millions and €1 500 million to reach €12 000 million within 10 years is 19% of the total market ».^31(*)

In this respect, one will follow with interest the development of alliances in this sector with, for example, a recent bringing together between Contentguard (in which Microsoft reinforced its participation) and Time Warner to develop and « to ensure the promotion and the development of the solutions of distribution and management of the numerical rights ». ^33(*)

In the same way, Microsoft, which had been in lawsuit for three years with InterTrust^34(*) which showed it to have illegally borrowed some of these technologies to develop its solution DRM, decided to pour to him 440 million dollars in exchange of the access to its technologies of protection of contents. Thus, the prospect for an opening towards other markets encourages with a bringing together between the actors. ^35(*)

§2- interworking

Major stake of the DRM, interworking is the fact of working out a whole of standards « standards » between the various actors of one or more sectors. That so that, even if these standards are not any obligatory, insofar as the majority of the actors use them make consequently them almost obligatory. Indeed a product which would not be compatible with them would have enormous difficulties of developing on a given market.

Indeed, the whole of the produced and distributed contents must be readable by the users, i.e. those must be stored, distributed or diffused in a format which can be recognized by the whole of the readers sold in the trade independently of their source.^36(*) This asking, consequently, an effort of co-operation between the various actors of the sector so that a standardization can succeed most quickly. ^37(*)

With- the consortia and alliances

One will endeavor here to evoke some of the most influential groups and most advanced in the related fields with the management of the DRM. ^38(*)

In the field of the GDN, a crucial importance must be related as well to the standards of data compression as on the language of expression of these data even, more and more, on the languages of meta-data.

Historically, group WG11 is that which defined « standards of compression MPEG-2, used for numerical television then MPEG-4 used for the diffusion of video on Internet. The audio part of the specifications became famous «the MP3» (MPEG To bush-hammer 3). Standard MPEG-4 integrates a part IPMP (Intellectual Property Management and Protection) to allow an identification of work, a management of the rights of copy and elements of coding of the contents and to constitute a complete standard of video diffusion. MPEG envisages new formats, in particular integral MPEG-7 of meta-data XML (given complementary attached to the video which can identify work, describe the rights, describe the scenes, etc) and MPEG-21, which aims at defining a total architecture multi-media, integrating various objects and contents. MPEG 21 will include/understand in particular a module IPMP, as RDD (Rights Data Dictionary-- Dictionary from rights) and REL (Rights Expression Language-- Langage expressing the rights) ». ^39(*)

More precisely, Leonardo Chiariglione indicates: « That is why we cuts has «Rights Expression Language» (REL) so that rights butt has item digital edge Be expressed in A way that edge Be interpreted by has computer. With right exists to perform actions one something. Today we uses such verbs have: «display», «print», «Copy» gold «blind» and we humans (hopefully) know what we mean. Drank computers must to Be taught the meaning. This is why we need has «Rights Data Dictionary» (RDD) that gives the specifies off semantics Al the verbs that are used in the REL ». ^40(*)

The simplified diagram, below, indicates the basic functions of a REL with a whole of associated rights that the author calls « permissions use » (in yellow) ; localization or unit, time constraints, (pink) as well as obligations of payments, traceability, etc (in blue).

It will be noted that, at the time of a workshop at the European Commission, it was specified that interworking was very important and that it was necessary in this direction to try to privilege : «Much emphasis was placed one the need for open standards that guarantee interoperability, and nap called for «common platforms». Indeed, there was has majority in favor off open and interoperable standard. Summon stated that proprietary standard could risk creating bottlenecks for users' accesses to content, giving small channel to content «gatekeepers», who could not only monopolize accesses to content and distort competition, goal might also misuses to their position by restricting the availability off content, which could cuts wider farming implications for society. With failure to achieve interoperability would significantly increase costs and would Be major disincentive for users has ». ^42(*)

B- The group of Article 29

The group of data protection resulting from article 29 of Directive 95/46 adopted last January^43(*) a working paper on the data-processing platforms of confidence, and, in particular, on the work carried out by Trusted Computing Group (Group TCG).^44(*) This one includes/understands a very significant number actors^45(*) of the data-processing sector and telecommunications of which the goal is, inter alia, of « to write draft specifications for a new generation of chips of safety hardware called Trusted Platform Modules (TPM) ».

One will note in this respect that « Chip TPM comprises the following functionalities:

- public key: generation of the pairs of keys, signature by public key, checking, encoding and decoding ;

- starting in confidence: the registers of configuration of platform (PCR) record sections of information of the configuration during all the sequence of starting. Once the computer moving, of the data (such as symmetrical keys for encrypted file) can «be sealed» under a PCR;

- initialization and management: these functions make it possible to the owner to use or not the chip, to give it to zero and to take possession of it. The new version of the specifications makes it possible to the owner to delegate a certain number of functions to the user ». ^46(*)

Nevertheless, work of this consortium is interesting to follow insofar as, on the one hand it includes/understands the whole of the major actors of the data-processing sector and télécoms and on the other hand it was committed respecting and to take into account the whole of the Community legislation relating to the data protection^47(*) such as that is specified and discussed in the document quoted above. The evolutions of the specifications of version 1.1 with version 1.2 propose in particular various solutions in agreement with waitings specified by the Group of Article 29.

One will mention here, and as example, the problems relating to the data protection via an external certification. Within this framework, the TCG envisaged two possibilities, that is to say :

- the intervention of a third of confidence which would certify the identity of the users to their correspondent, without revealing it ;

- to use the characteristic «Direct Anonymous Attestation (DAA)» which makes it possible the user to create a key of certificate of identity (Certificate Identity Key, AIK) without presenting the key of endorsing (Endorsement Key, EK), which constitutes a single identifier. ^48(*)

If no decision were still taken, one sees despite everything the efforts and the implications which can have a bringing together between various at the same time private but so institutional actors.^49(*)

Chapter 1- legal stakes related to the DRM

The acceptance of a system of GDN for the consuming users/must have as counterparts to reassure them on the whole of measurements which could installation to protect their private life. And, that they thus know the perimeter of the personal data likely to be the subject of a data-processing treatment, i.e. more precisely of the consolidations of information necessary to the execution of the contractual conditions of use of works than they will be able to buy, download, distribute.

Indeed, the essential stake which exists between DRM and PRM lies in the fact that it is at the same time necessary to be able to distribute digital components to individuals by authenticating them as such without for that making readable personal information of each system. It is in this balance that resides the right adequacy between respect of the private life and management of the numerical rights as we will see it below.

In this respect, it is interesting to read what Alan Greenspan said to the United States in 2003:

« Does yew our objectify is to maximize economic growth, are we striking the right balances off in our protection intellectual property rights? Are the protections sufficiently broad to innovation drank not so broad have to shut down follow one encourages innovation? Vague are such protections so that they produce uncertainties that raise risk premiums and the cost off capital? Do How appropriate is our current system--developed for has world in which physical have predominated--for year economy in which been worth increasingly is embodied in ideas rather than tangible capital? ». ^50(*)

« We must could rights and technology into perspective with one another. What are the desired results?

1. Content Firstly, to stimulate the creation off, and investment in, quality. This boat Be achieved by DRMs gold new business models alone (have alternate to copyright protection), goal through has balanced protection off intellectual property in combination with technological measures.

2. Secondly, we must enable legitimate accesses. This cal for prudence concerning the scope off exclusive rights and off technological measures ». ^51(*)

The protection of the private life is and remains a fundamental data in our companies and more particularly in the world electronic commercial. A study of PriceWaterhouseCoopers, in 2000, showed that two thirds of the questioned consumers: « would shop more online yew they knew retail sites would not C anything with to their personal information ». In the same way a Harris study, in date of 2002, indicates that major concerns of the Net surfers when with the risks of safety are related to: « companies trading personal dated without permission, the consequences off insecure transactions, and theft off personal dated ». ^52(*)

Ultimately, it is largely understood that the problems of the DRM are closely related to an adequate, balanced and proportioned management personal data of the various users on line.

Section 1- Between royalty and personal data protection

Since the adoption of expect Treaty ADPIC that each State must establish a protective legal status of the exclusive rights of the royalties and rights close, and especially since the adoption of Treaties OMPI of 1996, the legal protection of technical measurements became the international intellectual gun of the protection of these rights in the numerical environment. ^53(*)

Treaties OMPI of December 1996 traced, for the whole of the States, a legal model of protection of technical measurements of protection of the digital components, in particular with regard to the phase of distribution of this saving and the sphere in uses of the consumers. ^54(*)

Vis-a-vis these measurements, the principle of the respect of the private life^55(*) and data protection in personal matter remains him also a European requirement of first order like that was pointed out, in particular, with article 8 of the Charter of the basic rights like by the repeated assertions of the French national jurisdictions and in various situations. ^56(*)

§1- royalties in prospect

The European legislation enacted a whole of rules through directives in order to modernize the royalty, in particular by the Treaty of OMPI of 1996. However, those were not transposed yet what raises some difficulties in term of legislative balance. All the more, that the Commission has just proposed a new directive in this field which is the subject already of intense actions of lobbying.

With- the directive on the royalty and the French bill

The French bill prepared by the Ministry for the Culture should make it possible, if it is adopted relatively quickly, to harmonize in this field the royalties the European legislation.

1- the directive on the royalty

The transposition of directive 2001/29 EC relating to the harmonization of certain aspects of the royalty and the rights close in the company to information has as a function to ensure the integration of this international standard in the national laws of the Member States. The object of the directive precisely consists in defining a legal protection of the preparatory acts or neutralization of effective technical measurements, which they are inspecting devices of access or technical measurements control copy.

The measurements installation by the directive^57(*) are, for the case which concerns us, the exception of optional private copy, the installation of an equitable compensation and the protection of the skirting of technical measurements.

Indeed, article 5 §2 b)^58(*) lays down «faculty» for the Member States to exempt reproduction right the copies on any support by an individual for a private use and at purposes not directly or indirectly commercial, provided that the holders of rights receive an equitable compensation. ^59(*)

Concerning, the protection of the skirting of technical measurements, article 6^60(*) imposes on the Member States a new infringement : the act of skirting of «effective technical measurements». Not only the act even of skirting is aimed, but also the fact of manufacturing, of importing, of distributing, of selling, of renting, of having at commercial purposes or of making the promotion of tools having for principal object the skirting of these technical measurements.^61(*)

Thus, freedom is left to the holders of rights to set up technical measurements protecting their works. European Commission, in February 2002, having specified that an effective management of the rights within the framework of the DRM and in direct relationship to Directive 2001/29/EC was to be based on the fact that : « Legal The framework supports uses off DRMs by protecting technical measures, and by requiring Member States to take into account the application gold non-application off technological measures when providing for to fair compensation in the context off the private uses exception for which to fair compensation is required, (Recital 35 and Article 5.2 (b))., edge facilitate the effective management off rights and exceptions. Effective Where technological measures are operational and, right holders should Be whitebait to ensure appropriate exploitation and enforcement off to their rights have well adequate returned by using DRMs. Legal The framework provides for the possibility to avoid double compensation where copyright levies and DRMs would Be used in parallel ». ^62(*)

2- the bill on the royalties63(*)

The explanatory memorandum of the bill of transposition in French right of directive 2001/29 EC indicates that it asks a priori only « very limited modifications of the code of the intellectual property. It acts primarily, on the one hand, of the introduction of sanctions in the event of skirting of technical measurements of protection and identification of works and, on the other hand, the institution of an exception to the royalty in favor of certain types of technical copies carried out during the transmissions of contents on the numerical networks ». ^64(*)

The bill seems to have remained rather near to the European text^65(*), and it is the goal of a directive of harmonization of the legislations. However, one will note some changes having milked mainly with : on the one hand, recognition of new exceptions to the royalties and, on the other hand, to the coexistence of the private copy and technical measurements.^66(*)

Article 7 of the bill indicates : « effective technical measures intended to prevent or limit the uses not - authorized by the holder of a royalty or a right close to the royalty, of a work, an interpretation, a sound record, an ideogram or a program, are protected under the conditions envisaged with the present title. These provisions are not applicable to the software;

«One understands by technical measurement, within the meaning of the preceding subparagraph, any technology, device, component, which, within the normal framework of its operation, achieves the function envisaged with the preceding subparagraph. These technical measurements are considered effective when an aimed use to the preceding subparagraph is controlled thanks to the application of an access code, a process of protection, such as encoding, the jamming or any other transformation of the object of protection, or of a mechanism of control of the copy which achieves this goal of protection.

«The licenses of development of technical measurements of protection are granted to the technical manufacturers of systems or to the owners of services which want to implement interworking, under conditions equitable and nondiscriminatory, when these manufacturers or owners commit themselves respecting, in their sphere of activity, the conditions guaranteeing the operational safety of technical measurements of protection that they use ». ^67(*)

Be added to these provisions that the skirting of these devices anti-counterfeit set up in particular on CD or DVD will be compared to counterfeit (article 11 to 15) and will be sanctioned penally. It will be noted that, the law Perben II extended the sorrow for counterfeit from two to three years of prison and 150.000 to 300.000 euros of fine, and to five years and 500.000 euros when the offense is made in organized band. ^68(*)

Moreover, the directive obliges (article 6.4) the Member States to envisage: «an adapted legal protection against manufacture, the importation, the distribution, the sale, the hiring, the publicity for the sale or of the hiring, or the possession at commercial ends of devices, products or components or the provision of services which: has) are the subject of a promotion, of a publicity or of a marketing, with an aim of circumventing protection, or b) have only one limited commercial goal or a limited use other to circumvent protection, or c) are mainly designed, produced, adapted or realized with an aim of allowing or of facilitating the skirting of the protection of any effective technical measurement. ». This measurement was transposed in the Bill to article 13. ^69(*)

Also, one will look with interest a decision of the federal court of San Francisco on February 19 2004^70(*) which forbade the Company 321 Studios to continue in the United States the production and the marketing of any software allowing the duplication of video DVD.^71(*) Indeed, this decision was made because this type of software allows the skirting of the protection measures and violate thus the DMCA of 1998. This first judgment was given and the Court of New York^72(*) confirmed this approach on March 3, 2004 in another business against 321 studios. It specifies that the software published by the company 321 Studios, enfreignait the royalty. It considered that « However, prohibition off manufacture gold trafficking off any technology primarily designed to circumvent has technological measure that either controls accesses to gold protects has right off has copyright owner to gold in A work protected under DMCA, obviously is not evaded by the alternative existence gold arguably limited use «. ^73(*)

This faculty will have, it also, being given up in France at the end of the transposition of article 6.4 of the directive of May 22, 2001 on the royalty !!

On the other hand, one finds in article 8 Al 3^74(*) of the Bill a provision which differs from the directive insofar as faculty is offered to the holders of rights to limit the number of private copies, which can very clearly be made by the installation of DRM. This measurement is D `largely used right now elsewhere by the various actors of the sector of the distribution in line of contents.

One will then follow with interest the Bill when it indicates that, if technical measurements are legitimate, they should not limit the exercise of private copy.^75(*) However all the difficulty is well there : how to reconcile the logic of the fight against the counterfeit and the hacking of works with that of the exception of copy deprived at private ends or the family circle...

Indeed, technical measurements which make it possible to control the use, the destination, the distribution of works have as a finality to prevent any illicit copy of those like any violation of the other exclusive rights of the holder. The skirting of those being illegal as from the moment when, like specifies it Caprioli, that was with full knowledge of the facts accomplished.^76(*)

Thus, it would seem that in the future the user cannot exert his right of private copy quite simply any more. And, it is well the tendency to which one forwards oneself, the content providers on line initially set up of such measurements via the systems of DRM^77(*) on line for then gradually applying them and according to the evolution and of the renewal of the equipment of the consuming users/with the purchases in the trade (off line). Certain CD being already famous like noncopiables, which was the occasion for the judges besides to decide in certain businesses.^78(*) In those, most important in our opinion, and one will follow in that Eric Barbry^79(*), not being that the companies were condemned for vice hidden and fraud but that the judge imposes « to make appear in the back packing CD the following formula in character 2,5mmm « Attention, it cannot be read on any reader or car radio »^80(*) ; « the consumer by reading the mention « this CD contains a technical device which limits the possibilities of copy » cannot know that this system anti-copy is likely to restrict the listening of its disc on a car radio or a reader ».^81(*) In that, it recognizes de facto the existence of a right of technical measurements and stresses only the fact that the consumer was not clearly informed of the restrictions likely to be able to intervene during the use of the bought support.

One will also follow with much interest the continuations of the decision returned by the TGI of Paris of last 30 April.^82(*) French Union of Consumer (UFC) That To choose was déboutée by this one of its request towards Universal, the Films Alain Sarde and Studio Channel. Indeed, a private individual having bought the DVD of film of David Lynch Mulholland Drive could not make a private copy of this one because of the protection measures of the DVD. The judge indicated that the law was obsolete since, because of its seniority, « it did not take into account the recent reduction of the supports on which a work can be reproduced ». And to add that « the copy of a work published on a numerical support could only attack the normal exploitation of work ». ^83(*)

It is in the name of the fight against the hacking that these same companies of perceptions are today pointed finger by the European Commission and more particularly by its Direction in load of the respect of the right of the competition. Sixteen companies of authors, whose SACEM, which collects the musical rights, are concerned. To make short, the Commission wishes to introduce competition between the companies of authors who in particular release the rights of diffusion of the music. The agreements of Santiago and Barcelona, in 2001, stipulated that each diffuser was to negotiate, country by country, the licenses of diffusion of the music to be bought on line. This territoriality and this exclusiveness are now disputed by the European Commission which wishes to open the system and to put the companies in competition. A way like another of encouraging the paying sites in their facilitating the life. On their side, the companies of authors fear that competition of the companies entitled to grant user licenses results in cause a drop in singularly the amount of the rights in the name of the commercial attractivity

B- Directive IP Enforcement84(*)

Recently, the European Parliament adopted by 330 votes for and 151 votes against the directive on the application of the rights of ownership intellectual and industrial suggested on January 30, 2003 by the Commission the purpose of which is in particular to reinforce the fight against piracy and the counterfeit. ^85(*)

This one, then, was adopted by the Council of Ministers on April 26, 2004, for an effective application in 2006. ^86(*)

It will be noted that the Parliament in particular wanted to endeavor to sanction only the infringements carried out at commercial purposes when the directive indicates to considering 13 (a) : « the measurements envisaged in article 7, paragraph 2, with article 9, paragraph 1, and with article 10, paragraph 1 (a), of this directive should apply only to acts made on a commercial scale, without damage of the possibility that have the Member States to also apply these measurements to other acts.^87(*) The acts made on a commercial scale are those which are perpetrated in order to obtain an advantage economic or commercial direct or indirect, which excludes in theory the acts which are the in good faith acting fact of ultimate consumers ".

But the fact will be also mentioned that the Commission asks so that there be able to be one « (...) right of information, which makes it possible to obtain precise information on the origin of the goods or the litigious services, the distribution systems and the identity of the thirds implied in the attack ».^88(*)

In the same way, article 9 precise : « The Member States take care that, within the framework of an action relating to an attack with a right of ownership intellectual and in response to a justified and proportioned request of the applicant, the competent courts can order that information on the origin and the distribution networks of the goods or the services which carry reached to a right of ownership intellectual is provided by the contravener and/or any other person (...) » and to continue while indicating to subparagraph 2 to what this information will relate : « names and addresses of the producers, manufacturers, distributers, suppliers and other former holders of the goods or the services, as well as wholesalers recipients and retailers ». ^89(*)

It seems that this article 9 is inspired directly by the US legislation, also discussed (DMCA), which is used to obtain information in personal matter of the users of networks of file sharing to the contempt of the rules of respect of the private life. Moreover, Peter Schaar, Directeur of the equivalent of the CNIL in Germany (BnD) do not say anything others when it indicates that : «According to our interpretation, the suppliers of access and the shelterers belong to those which will have to yield with this rule, [the police chief declares,] what could involve a serious attack with the secrecy of the correspondences».^90(*)

Thus, the debate on the obligations of the FAI would be started again, they should in particular have a duty « to communicate the identity of the users (...) some are the laws of protection of the life deprived into force ».^91(*) But, it is true also that the Parliament specified by an amendment that « this does not constitute however a general obligation of monitoring of the thirds ».

Peter Schaar, stresses that « exact contours of this provision are still vague, so that it could as well target the pirates engaged in an industrial process of illegal copy, than of the private individuals who exchange private copies of work. In his opinion, this text is completely disproportionate ". ^92(*)

On the other hand, it would seem that the French government is not of the same opinion when he states in particular that this directive, once transposed « will support in particular the conditions of meeting and establishment of the evidence of the counterfeit, including through better information of the public authorities, the variety and the effectiveness of the provisional measures decided by the judge, as well as the civil and pecuniary sanctions in order to better compensate the damages. Supported actively by the French authorities, this directive will have to be supplemented by a national penal shutter, which is being prepared by the Member States, and will be the subject of a transposition as fast as possible ». ^93(*)

§2 - personal data protection in prospect

The French legislation rests on the base of the law Informatique and Freedoms of January 6, 1978. However, this one must be put in agreement with the various provisions of the Directive of October 24 1995^94(*) which should already have been transposed, within the time limit, in French right insofar as, unlike the directly applicable payments, the directive binds the Member States as for the result to reach while leaving with national authorities competence as for the form and with the means.^95(*) In the same way, the directive on the electronic trade of June 8, 2000 and one of the directives Paquet Telecom (2002/58) must be the subject of a transposition to be in conformity with the requirements European.

With- the right to the personal data protection

In February 2003, the EUCD.INFO underlined in front of the CSPLA that « the electronic systems of management of the rights («DRM») could not cause for object or to make it possible at private organizations to operate automated processings of personal data for the identification of possible infringements to the royalty and the close rights. In accordance with the provisions of law and order of the law known as «data-processing and freedoms», people not invested morals of private law of a mission of public utility could not in no case to replace for the police force or justice by assuming capacities of investigation which come under the exclusive responsibility of the State ».^96(*)

In that, it was based on article 30 of the law Informatique and Freedoms of January 6 1978 which indicates that « except contrary legislative provisions, the jurisdictions and public authorities acting within the framework of their legal attributions like, on assent of the national commission, the people morals managing a public utility can only carry out the automated treatment of personal information relating to the infringements, judgments or measurements of safety (...) ».^97(*) One of the other difficulties inherent in the installation of a system of GDN being adequacy and balance to be found for the respect of the private life and the personal data protection.

One will note what Pamela Samuelson understands by DRM : « Year alternative phrases digital for DRM is «restrictions management,» given its uses by copyright industries to restrict to use rights »^98(*) what will give us to reflect on the implications in terms of management and protection of the person. Alliances between industrialists, necessary to make emerge standards and interworking in particular, must be looked at with caution.^99(*) Because behind those, and the DRM, is profiled technologies « that will Al more perfect control over accesses to and uses digital files off. The same capabilities that enable more perfect control also implicate the privacy interests off users off information goods (...). They also create the potential for vastly increased collection off information butt individuals' intellectual clothes and preferences. Thesis technologies therefore space affect both and informational dimensions off the privacy that individuals customarily cuts enjoyed in their intellectual activity ». ^100(*)

What is obstructing so much a legal and ethical point of view is the fact that technologies of GDN, can create data records which even if they are generally made automatically via « robots » without any human intervention are likely to threaten the respect of the private life of the users. In particular if these data collected are accessible to others and that they can be used with fine marketing and/or that these data, like specifies it Julie Cohen, can be « gathered through monitoring [and] later Be used to generate detailed profile users' revealed intellectual preferences off. The information provider edge uses the resulting profile to market additional information goods to users, but edge salt it to third left who may uses it for has wide variety off other purposes ». ^101(*)

Moreover, the European Commission recalls its attachment to these values by explaining that if the goal first technical protection measures is to preserve the rights of ownership intellectual and the economic rights associated, it does not remain about it less than : « However, in so far have DRMs may involve the collection and further processing off personal off dated in order to curry out the essential function protecting the works, but in so far have they may content also Al owners to closely monitor and track the uses off digital content, to consume organizations, privacy advocates, national supervisory authorities and the Commission are also concerned butt DRMs affecting the fundamental rights to privacy and personal dated ace guaranteed by the HAVE Charter one fundamental rights^102(*) and the HAVE dated protection directives ». ^103(*)

It is certain that the use of the DRM must be completely compatible and in direct bond with the principles resulting from Directive 95/46.^104(*)

The CSPLA returned a report/ratio in June 2003 in which it points the risks related to the management of the DRM. It will be retained in particular that they : « could allow «to know in a very precise way of the whole sides of the private life^105(*) of the individuals»^106(*), «to collect data going beyond what is simply necessary to the exercise of the rights of the author's copyright and artistic», «to be coupled with [information] gathered on other sites thanks to single systems of identifiers, such as that of system .NET Passport developed by Microsoft», and problems in the event of repurchase of companies would pose, making it possible these last to constitute «files relating to a great number of characteristic ».^107(*)

« Technology is neutral but the use that one does it is not and must thus be guided by ethics and not only by economic interests. Massive deployment of technical measurements of protection « new generation », communicating with central waiters or being pressed on intelligent labels (RFID), presents consequent risks of attack at the personal freedoms (like the CNIL A raised besides) ». ^108(*)

Contrary and one will not be astonished any, having them rights and their partners estimate that the DRM do not pose problems in term of attack to the private life and one can be astonished that the CSPLA gives him reason when it indicates in his opinion of June 26 2003 that « these systems lie within the general scope of the electronic trade and the rules, including penal, applicable as regards personal data protection ».^109(*)

More still, in an opinion of March 2, 2004, the CSPLA^110(*) if it is conscious of the potential risks related to « collect and the consolidation of precise data on cultural consumption of interested and their possible use in not desired ends » indicates that on the matter the these risk assessment is difficult... and inherent in emergent technologies... are common in the cybermonde !

This opinion is interesting insofar as it systematically will ask for and/or reinforce the means of fights against the hacking and the illicit exchanges of works between users by indicating that :

- the rules of administration of the proof in the penal lawsuit do not make obstacle with the launching of requests on the Internet by the authorities or having them right (in particular by the means of the sworn in agents of the article L. 331-2 of the code of the intellectual property) for purposes to note the offers of files carried out in violation of the rights of author's copyright and artistic.

- [if] character only indirectly personal of IP addresses^111(*), (...) gives access the real identity interested parties only after bringing together with the data of connection held by the technical operators, within the framework of a legal procedure, [It] insists on the need for having the right, have regard to the massive character of the counterfeit on line, to be able to resort to such treatments, with an aim as well preventive as repressive. [the CSPLA] wishes that the Parliament find (...) a solution allowing to the holders rights and the organizations acting for their account to proceed to the constitution of such files, with an only aim of ensuring the protection of these rights [and] to adopt a formulation which makes it possible without ambiguity to look it like including, on the one hand, among the finalities of the collection, prevention and the repression of the violations of the rights of author's copyright and artistic, on the other hand, with the number of the people concerned, professional organizations and companies of collection and distribution of the duties, when they act on behalf of having the right.

The bill reforming the Data-processing Law and freedoms^112(*) adopted by the deputies on last 29 April seems to go in this direction when it indicates : « «Art 9. - The processings of data in personal matter relating to the infringements, judgments and measures of safety can be taken only by:

(...) «3° (new) the people morals victims of infringements, for the strict needs for the fight against the fraud and under the conditions envisaged by the law ».^113(*) Thus, the solution required by the CPSLA should allow for example compared to the illegal remote loading music on Internet to authorize the people morals, therefore the companies of royalty « victims of the counterfeit, to constitute their own files of infringements in order to collect personal data, as IP addresses ».^114(*) One will await the confirmation of this measurement during the examination of the text by the senators in 2nd reading.

- Being finally the identification of the counterfeiters, the higher Council underlines the need for implementation an effective of the obligation of conservation, by the operators of telecommunications and the service providers on line, for the needs for research, the observation and the continuation of the penal infringements, of the data allowing such an identification (...) Being more particularly the data of connection, the higher Council estimates than, have regard in particular to the guarantees of which their conservation is surrounded, the time of this one would not have, in the current state of the legislation, being lower than one year, (...). A lengthening, for certain categories of data ;

- under certain conditions, the engagement of the responsibility for the intermediate people receiving benefits of services on line when they abstain from taking measurements making it possible to put an end to the illicit activities of which they are informed, envisage the possibility, for the administrative or legal authorities proper, to require these same people receiving benefits that they put a term at such activities, in particular by withdrawing the litigious contents or while making them inaccessible, and invite the Member States to set up of the recourse jurisdictional effective, including in summary procedure. ^115(*)

With the reading of this opinion one will be able to wonder about the degree of freedom left to the users of the networks and the real legitimacy of this arsenal of repressive measurements and attentatoire with the freedom and the respect of the private life. The framework favourable with a blooming serene and balanced electronic trade is not yet clearly fixed !! Overall, one will wonder about the stakes existing between right and technique bus in the long term, like specifies it daN L Burke, « content owners may Be relatively unconcerned butt obtaining gold enforcing intellectual property rights have such rights cuts previously existed. Where accesses and uses off edge Be controlled by built-in technological restrictions, regulation the content via legal sanctions becomes far less gravitational. Indeed, content owners may prefer, rather than relying one copyright law to prohibit some statutorily determined use off the work, to rely one anti-circumvention laws to prohibit tampering with the technological controls, leaving the technology to prohibit whichever use the content owner unilaterally chooses. Such anti-circumvention laws, acting have year adjunct to technological controls, confer upon content owners A dismantles control never attainable under off has mode off traditional copyright ». ^116(*)

Following the interrogation which one posed within the framework of address IP^117(*), one will be interested particularly in the actions pursuant taken within the framework of the fight against the hacking to the amendment n°8^118(*) which would seem to allow « people morals mentioned with the articles L. 321-1 and L. 331-1 of the code of the intellectual property, acting under the rights of which they ensure management " [] to carry out the personal data acquisition ». Thus, if this amendment were retained, it is the opened possibility, for the trust companies of the royalties to be used for itself of IP addresses (indirectly personal) to obtain information on the people operating on the networks and particularly within the problematic framework of the P2P.^119(*)

B- Directive 2002/58/EC and the LEN

Directive 2002/58 be to replace directive 97/66^120(*) and to specify and reinforce, in particular, in the sector of the electronic communications right to the life deprived in the data processing in personal matter. It should be the subject of a transposition in the national law through the law on the numerical economy.

1 - Directive 2002/58/EC

One will study some provisions of this one for then seeing how and when they can be applied in France.

This directive has as an aim principal to protect the personal data^121(*) in the electronic communications when it states that it: «applies to processing the data in personal matter within the framework of the supply of services of electronic communications accessible to the public on the public networks from communications in the Community ». ^122(*)

However, if one considers the definition of « communication », it is about « any information exchanged or conveyed between a finished number of parts by means of a service of electronic communications accessible to the public. That does not include/understand information which are conveyed within the framework of a service of broadcasting to the public via an electronic communication network, except insofar as a bond can be established between information and the subscriber or identifiable user which receives it ».^123(*) And in the case which concerns us of installation of systems of DRM, cannot one see in this definition the protection of a service of music in line in remote loading ? Indeed, one can consider that there is a substantial bond between the information transmitted by the user and the reception or remote loading of the musical file ? Same manner it seems to us that that can be the case within the framework of a service of purchase/film hiring on Internet for example. Thus, general protection resulting from directive 95/46 would be to some extent reinforced sectoriellement.

The bringings together and reinforcements in terms of data protection with directive 95/46 are numerous. For example, as regards data, article 6 (E) of directive 95/46 specifies « The Member States provide that the data in personal matter must be preserved in a form allowing the identification of the people concerned for one length of time not exceeding that necessary to the finality for which they are collected or for which they are treated later on » whereas article 6 of directive 2002/58 EC indicates as regards traffic « The data relating to the traffic concerning the subscribers and the users treated and stored by the supplier of a public network of communications or a service of electronic communications accessible to the public must unobtrusive or be made anonymous when they are not necessary any more to the transmission of a communication ». The similarities are large ; directive 95/46 covering in fact the whole of the obligations imposed on Directive 2002/58.

These provisions also present and are reinforced within the framework of the confidentiality of the communications when article 5 states that « Member States (...) prohibit with any other person that users to listen to, intercept, store the communications and the data relating to the traffic y related, or to subject them to any other means of interception or monitoring, without the assent of the users concerned except when this person is legally authorized there (...) ».^124(*)

Moreover, it is interesting to raise that the CJCE is, recently, pronounced on a purely prejudicial basis on the direct effect of certain provisions of directive 95/46/EC, which fixes the applicable general framework as regards protection of the private life. However, it admitted that certain provisions were stated in a sufficiently unconditional way and specifies to be able to be called upon by a private individual and to be applied by the national jurisdictions. Also, with Caroline Carpentier, one can wonder about the possibility of applying the same reasoning, by analogy, with the provisions of directive 2002/58/EC, which could be also seen recognizing a direct effect in so far as they answer the conditions fixed by jurisprudence.^125(*)

2 - The LEN

The LEN^126(*) has for main goal the transposition of European Directive 2000/31/EC of June 8, 2000 on the electronic trade. This law also aims at partly transposing European Directive 2002/58/EC from July 12, 2002 on the personal data protection in the electronic communications.

May 13, 2004, the senators adopted, following the equal Joint Committee and after the examination in public by the French National Assembly on 6 last May, the bill for confidence in the numerical economy^127(*) which specifies, in particular, the obligations of the people receiving benefits.

Indeed, if at the beginning weighed on those on a general obligation of monitoring, the senators reconsidered this provision and the people receiving benefits are henceforth subjected to no general obligation to supervise information which they transmit or store. Nevertheless, the judge will preserve the possibility of imposing such a measurement of monitoring, targeted and temporary. ^128(*)

The notification with the FAI or the shelterer becomes obligatory becoming of this fact an obligatory stage before a possible action at law.^129(*) It obliges to notify before seizing the judge. The deputy minister considers that is to the person receiving benefits to decide if it takes action pursuant or not at the request of withdrawal of the denounced contents, and to find itself then if necessary in front of the judge if it does not take action pursuant.

In the same way, the initial provisions concerning filtering of the contents they were also modified. The text provides that « the legal authority can prescribe in summary procedure or on request (...), all measurements suitable to prevent a damage or to put an end to a damage caused by the contents of a service of communication to the public on line ».^130(*) The most convincing example of application of this measurement being the fight against the illegal exchange of musical files on the Web sites or the networks of P2P.

However, already, of interpretations different from these measurements divide the industry of the disc and the Association of the Suppliers of Access and Services Internet (AFA). Herve Rony « fear that the FAI are useful of this modification^131(*) for saying only, if the legislator removed this provision, it is that it had itself of the hesitations on the fact that measurements of filtering could have a direction. They will use that to justify their alleged impotence to set up the measurements requested by a judge ».^132(*) Whereas the AFA interprets the text like the suppression of «the possibility for the judge of ordering with a supplier of access to block the access to contents on line by its subscribers (...), the Senate «having made the choice rely on the capacities that the legal judge draws from the common right». ^133(*)

It will be also noted that the concept of public communication of the article 1st was modified compared to the text forwarded to the senate and that it is refers to « the exercise of this freedom can be limited only in required measurement, on the one hand, by the respect of, freedom and property of others, the pluralist character human dignity of the expression of the currents of thought and opinion and, on the other hand, by the safeguard of the law and order, the needs for national defense, the requirements of public utility, the technical constraints inherent in the means of communication, like by the need, for the audio-visual services, to develop the audio-visual production » and to continue by specifying that « the audio-visual services include/understand the services of audio-visual communication as defined in article 2 of this law as well as the whole of the services placing at the disposal of the public or a category of public of audio-visual, cinematographic or sound works, whatever the technical methods of this provision ». ^134(*)

The reference to the protection of the royalties being seems T it limpid insofar as it is well specified that it is a question of protecting from audio-visual works, cinematographic. It is well here the starter of a parallel with the concept of protection of works through technical measurements such as they will be enacted through the bill on the royalties.

Section 2- Between US Rights and Export

It seems to us interesting to consider the American approach, on the one hand because the United States was equipped, very early, of a legislation in this field and that its approach in term of royalties is different from the vision European and more particularly French.^135(*) Moreover, the American example seems to us to be most suitable insofar as most of the actors of the management of the contents on line proposing solutions already or having developed techniques of DRM are benches there what will enable us for this reason to consider the transfers of data flow towards this country and the implications that that can have in term of attack to the respect of the private life.

§1- the United States and the DMCA

One will approach here the US attitude with respect to these difficulties related to the control of New Technologies. The United States enormously implied itself in these problems of the royalties. Indeed, already in 1995, a White Paper^136(*) recommended that the Act Copyright is amended and that one inserts there provisions prohibiting skirting of average the techniques being used to protect works.^137(*) Thus, following Treaty OMPI of 1996, American will obtain a tool for protection by adopting the DMCA in 1998.

In this respect, one will lean obviously on the protections offered by article 1201 of the DMCA which aims technical measurements more particularly.^138(*)More precisely, the DMCA sanctions the act of skirting as well as the preparatory activities. Three infringements hitherto unknown as regards copyright are created by the American text:

- the skirting of technical measurements which control the access to the works protected by the law ;

- manufacture, distribution and diffusion of devices or the provision of services aiming at circumventing the systems of access control ; ^139(*)

- manufacture, distribution and diffusion of devices or the provision of services allowing the skirting of technical measurements of protection of the rights of the authors. ^140(*)

Thus, it seems that the problems which interest us in Europe are similar in the United States. Indeed, this legislation which extends the protection of the copyright beyond work involves de facto a reduction of the use potential which each user can make what would seem to be against the doctrines of fair uses such as it was desired at the beginning.^141(*)

The equitable use of a work not becoming of this fact almost more possible while at the same time like daN L. Burke says it « the uses off intellectual property law is always has balancing act between Al the greatest number off people to enjoy works At low cost, without lowering the cost so much that the works will never Be created in the first authority. Indeed, this balances is constitutionally mandated in the United States, where the constitution provides Congress with the power to enact copyright laws only yew such laws «promote the progress off science and the useful arts» ». ^142(*)

If it is true that the author must obviously preserve rights on his works, that should not inevitably be done with the exclusive detriment of the user by breaking this fragile balance. It is besides well what D.L. Burk says when it affirms that : « [T] He employment off the anti-circumvention statute to date should as have something off surprised. The record suggests that the anticircumvention right was intended by Congress have has shield rather than has sword, intended have has means to prevent wholesale misappropriation off copyrighted content, rather than have has means to extend content owners' exclusivity to cover adjacent, uncopyrighted technologies. Yet the boxes brought by rights holders thus far, cuts been characterized by has decided lack off anything resembling «piracy» gold unauthorized copying ».^143(*)

Similar to Directive IP Enforcement, at least in the spirit, the United States is also studying a bill^144(*) which would facilitate the penal continuations against the hacking. The senator Leahy entitled « Protecting Intellectual Rights Against Theft and Expropriation Act off 2004 »^145(*), and permetrait « [to] let the Justice Department spins civil lawsuits against file swappers ».^146(*) it would envisage in particular a lightening of the burden of proof when it indicates « IN GENERAL The Attorney General may has civil action in the appropriate United States short district against any person who starts engage in conduct constituting year offends under section 506. Upon proof off such conduct by has preponderance off the obviousness, such person shall Be subject to has civil penalty «. ^147(*)

§2- contracts of transborder flows

These problems, in particular, were evoked in a working paper of the Group of Article 29^148(*) in June 2003. Indeed, the provisions of articles 25^149(*) and 26^150(*) of Directive 95/46 on the personal data protection impose, in particular, these measures to the framework of transfers of these data in countries non-member of the European Union.

Moreover, following the first report/ratio at the Commission on the application of Directive 95/46 in May 2003^151(*), the Director of the Domestic market DG questioned himself and indicates in a note that « certain indicators obviously give to think that many transfers not - authorized and possibly illegal take place towards destinations or recipients not guaranteeing an adequate protection. One of these indicators [being] the very limited number of received notifications of the Member States pursuant to article 26, paragraph 3 of the directive: «although there are other possible means of legal transfers that article 26, paragraph 2, the number of received notifications is ridiculous compared to what one could reasonably expect ».^152(*)

Also, of measurements likely to facilitate the diffusion of information will be taken : for example, if « directive 95/46/EC does not make obligation at the Commission to inform the Member States of the notifications received under the terms of article 26, paragraph 3. The Member States are urged to inform the European Commission and the other Member States of any granted authorization. Nevertheless, the Commission departments will alert the Member States and the authorities in charge of the data protection of these notifications so that the interested parties can contact the authority of qualified notification and obtain all information necessary directly of this one ».^153(*)

The recourse to the contractual clauses is also a possibility. For the United States, these contractual clauses are not, generally, necessary in the case of a transfer of data to American companies adhering to the principles of the «sphere of safety» (safe harbor) published by the ministry for the trade of the United States.

However, have regard with the importance and the sensitivity of information, this principle is checked by the national authorities such as the CNIL and the Group of article 29 also emits within the framework of the mission which to him was entrusted opinions. In this respect, one will follow with interest the evolution of the discussions which take place on the problems of the personal data contained in the files of passengers (PNR). Indeed, since March 5, 2003, the European airline companies transmit these data to the American authorities. However to follow the successive opinions of the group of article 29^154(*) these transfers are not satisfactory ; the position of the CNIL being it similar insofar as it considers that « the transmission of the data contained in the PNR with the American authorities constitutes a diversion of finality of the data-processing treatment insofar as they were collected at commercial purposes and not for reasons of safety ».^155(*) It also specifies the fact that « certain information appearing in the file of reservation of a passenger is likely to reveal with a third of the data likely to attack the private life of the people concerned. The route of displacements of a person, the name of her travelling companions, his telephone number can concern its private life. It is even more the case of the data which can reveal the racial origins or the political opinions, philosophical, religious or manners ».^156(*) It finishes by referring to article 26 of directive 95/46 and by indicating that the United States does not offer an adequate protection of this information. ^157(*)

Also, in the light of these difficulties of processing personal data in an identified context, one can wonder what it will be on the level of the management of the DRM. Indeed, the services suggested to the users will have to be in conformity with the whole of the legislations in place and in particular the European legislation and to give a report on contract of transborder flows of data respecting these intentions imperatively so that the sedentary and commercial mistakes allowing the crossing of the files, the resale of those can be authorized only within the limits of legality.

Companies will have, in any event, if an adequate protection is not established to draw up contractual clauses which can, through the application of an exception of article 26, to substitute and offer sufficient guarantees to carry out the known as transfers to third countries. The Commission thus proposed certain models of contractual clauses^158(*) being obligatory allowing the companies on the matter to respect their obligations. ^159(*)

Chapter 2- DRM in practice

The installation of a system of DRM is based at the same time on the control of the architecture of the system but also on a contractual development necessary to the appropriation and the diffusion of the system near the various speakers and users.

Section 1- Approaches Technical and functional

The development of a project allowing the distribution of digital components on line necessarily rests on a consequent technical infrastructure in which all the aspects related on the confidentiality, the transactions, the rights of the users,... are found. This one is related to partnerships established and developed with various partners (IE : house of disc) then allowing him to present and distribute the whole of the various contents to the users.

§1- technical Architecture

The major difficulty of installation of a functional architecture of a system of DRM lies in the fact that it must be : « divided in three areas: content creation, content management and content use. Content creation includes the creation off the media and defining the rights. Content management is content butt distribution and trading off the rights. Finally, content use is used to enforce that rights are adhered to and to track content use ». ^160(*)

Also, it is a question of controlling at the same time the whole of the chain but also the whole of the speakers so that the system is most transparent for the users because it is one of the keys to success. ^161(*)

One will be satisfied here to evoke some possible architectures suitable for the installation of a system of DRM.

With- Architecture DRM using PKI and Watermarking

The experiment undertaken by the researchers of Université of Finland east to our direction a rather complete response to the deployment of a system of DRM. Indeed, on the basis of the report first that any inviolable system does not exist, they succeeded in establishing a balance which seems to us interesting to study.

Their step rests on a model of distribution of contents. In this one, and such as that is represented on the diagram above, the process can break up into several stages :

- the licenses are related on the user and not to the terminal, in fact the hardware, the computer.^163(*) The direct benefit being that the user can have access to the contents indifferently support considered. It suffices for this one to establish a connection network and to obtain the license^164(*) since a waiter^165(*) ;

- « player » identifies the protected contents and acquires a license to be able there has to have access. Architecture used is provided by a Public-Key Infrastructure (PKI).^166(*) The only services used of the PKI are the creation and the revocation of the certificates. In this direction, they use the X.509 certificate^167(*) at the same time to buy and sign the license^168(*) ;

- The contents are protected using two methods : asymmetrical cryptography^169(*) and a process of watermarking.

Thus, before letting the user have access to the contents, it « player »^170(*) checks if the license is valid and if the user has well the private key corresponding to the certificate contained in the license.

If this method is not completely inviolable^171(*), it does not remain about it less than the efforts of the user are negligible and than the transparency for him is rather large what remains like underlined it many authors one of the keys of the success of deployment of the DRM.

B- An integrated system : Windows Media DRM

The system conveyed by Microsoft, Windows Media Rights Manager (WMRM) is appreciably similar to the preceding example.

The operation of the WMRM has as a principle of being able to read a file protected only after the user acquired a license containing a key allowing him « déprotéger » contents of the file so if it is a question of a song for example of being able to listen to it.

This key is stored in a encryptée license which will be distributed separately. Other information is added to the file as the URL where it is possible to acquire the license for the contents. The user connects himself then to the waiter of license to acquire the license necessary and to allow his authentification.

One includes/understands the stakes related to the supply, out of standard, of a system including/understanding one « player » such as Windows Media Player what is the case for Windows XP. European Commission A included/understood well besides, it which has just condemned Microsoft to carry out some changes : « With regard to the bound sales, Microsoft will have, within 90 day, to propose to the equipment suppliers a version of his operating system Windows for PC customers not including/understanding reader WMP. This corrective measurement, which puts a term at the bound sales, does not mean that the consumers will obtain PC and operating systems without multi-media reader. The consumers buy, for the majority, a PC with an equipment supplier who already grouped, for their account, an operating system and a multi-media reader. The effect of the corrective measurement ordered by the Commission will be that these grouped sales will be configured according to the wishes of the consumers, and not of choices imposed by Microsoft. Microsoft preserves the right to offer a version of its operating system Windows for PC equipped with reader WMP. It will have however to abstain from resorting to any commercial, technical or contractual means resulting in making less interesting or less powerful the nondependant version. In particular, it will not have to subordinate the reductions which it jointly grants to the equipment suppliers with their purchase of Windows with reader WMP ».^173(*)

An innovation of the system of DRM from Microsoft recently was born : baptized « Janus », this system complementary to DRM integrated to WMP, allows inter alia, and in particular for the accessible digital components on line, to mark/tattoo the numerical files while applying to him « an indelible scratch date, even in the case of a transfer to a reader mp3, a secondary computer, etc Once this exceeded date, the file will become inoperative where that it is ».^174(*)

§2- Functional architecture

One will endeavor here to try to account for the experiments in progress, in particular within the framework of the provision of the users of services of remote loadings of music on line.

Within this framework, interest not being to make a review of the whole of the actors but rather to try to apprehend various experiments through various forms and economic models.

Thus, one will be delayed on the services provided by iTunes^175(*) of APPLE, as a manufacturer and a distributer of computers but also of cultural services in lines then an alliance of circumstance between two houses of disc, in fact EMI and BMG^176(*) and a platform of P2P Wippit^177(*) for finally being delayed on a distributer of contents which feed several services with the request, OD2. ^178(*)

With - APPLE- iTunes

In April 2003, APPLE announced the provision of its shop in line iTunes which makes it possible to download a song for 99 hundreds.^179(*) Files downloaded under standard AAC in MPEG-4 to which APPLE has associate certain DRM who did not exist at the beginning under this format. APPLE refers to this technology under the term of FairPlay framework^180(*) and explains why for this reason « The iTunes Music Store use FairPlay, Apple' S new digital rights management system that' S designed to Be to fair to the artist, to the record companies and to you. In A nutshell, your FairPlay agreement entitles you to play your music one up to three computers (and enjoy unlimited synching with iPods), Al unlimited burning for individual songs and lets you burn unchanged playlists up to 10 times each «. ^181(*)

One will also find on the site of APPLE various other information concerning the possibility offered to use the files downloaded on several computers (Macintosh). Indeed, it is enough quite simply with the user as that is clarified to authorize the computer to play the song with this intention while entering a name of user and a password. This identification is made by Internet and if one does not know any more about the process used it could act, as suggests it Daniel Semaya : « Possible It is that it use single hardware information drank even APPLE admits in their to develop documentation that there is No universal to identify for Al Macs ». ^182(*)

Once again, the goal seems T it, at least initially is not to set up techniques extremely sophisticated of GDN but rather of miser on a certain philosophy what Steve Jobs indicates clearly when it indicates in Time that « Piracy is has behavorial resulting, not has technological one ».^183(*) However, one will note that John Johanssen has, in November 2003, seems T it « developed a new software tool allowing to download free mp3 since APPLE Music Blind, (...) «QTFairUse» thus avoids with the Net surfer having to discharge 99 the hundred lawful ones per downloaded piece ». ^184(*)

B - BMG and Wippit185(*)

The nature of the offer suggested by BMG is D `as much more interesting than it makes it possible to foresee the impact of often décriés networks P2P.

Offer, for the moment exclusively reserved to the British users, of part of its catalog^186(*) in access by paying remote loading, which is carried out by the means of an access to the Wippit platform where are lodged the musical files, on an annual basis thus allowing a right remuneration of having the rights.

Then, the division is carried out via the P2P when the whole of the Net surfers stored the pieces bought on their PC. On the other hand, it is impossible to exchange, via Wippit, of the pieces downloaded on the platforms such as Kazaa, eDonkey, etc

The catalog of BMG is subjected to the usual economic model of Wippit. Maybe, for 30 books per annum, of the unlimited remote loadings of files to formats MP3, wma, midday, wav, the possibility of transferring them from the computer (Mac and Linux are excluded) towards a walkman. A restriction however : the user will be able to engrave the pieces only three times on CD. It is also the case for the pieces of EMI. Moreover, EMI, also negotiated purchasing possibilities to the unit of the titles of its catalog, to 50 pence the piece, apart from the monthly or annual subscription.^187(*) The equivalent of the 99 hundreds per title on iTunes.

The system functions according to the following model : « Wippit use has whitelist system where only approved material may Be swapped. Content Al is recognized by has off combination ID3 tags and checking using Cantametrix MusicDNA technology. Every song edge Be analyzed and identified even yew the name have with it is incorrect ».

This system uses one « waveform analysis and psychoacoustic modeling technical to identify songs [And] MusicDNA maintains has database off fingerprints off tracks that are approved for sharing one the network; only those tracks edge Be shared among Wippit subscribers ». ^189(*)

Wippit also allows, as Figure 8 shows it to define certain rights associated with the media to be downloaded.

One will read with interest the white paper of Bill Rosenblatt^191(*) in whom one will find the whole of the stakes concerning the DRM and the P2P. Opposé at the beginning, for much, they can become a tool with the services of the market if they profit from a sufficient interworking as of other measurements of balance of which we posed the stakes before.

In the example below, it « peer content P1 makes item C available have share off has repository though has paid-subscription service. When to use P2 obtains the object, it should cuts coil-contained functionality to retrieve P2' S identity, send it to has service for checking that P2 is has subscriber to P1' S service, and then receive A license L from that subscription service that enumerates the rights to which P2 is entitled ». ^192(*)

Figure 9: Two peers in A peer-to-peer architecture with content DRM-packaged. Content The C has functionality for accessing Web services. The Authentication Service authenticates P2' S identity, and the License Service exits has License L for P1' S content C. ^193(*)

It is an illustration of the possibilities and difficulties related to the installation of the DRM and standard languages associated such as ODRL or XrML with in particular the crucial importance of RELs associated : « RELs important are especially in Superdistribution networks. If P1 master keys summons content to P2, then P2' S rights to that content need to Be has off subset P1' S rights, and yew content P2 master keys the same to P3, then P3' S rights need to Be has subset P2' S off -- however, yew P2 gold P3 want additional rights, they need to Be whitebait to define them with precision and acquire them from the original IP owners. With properly designed REL enables this ». ^194(*)

However, and in spite of the whole of the developments and agreements which were set up, one can legitimately put the question to know which is the legality of a platform of the type BMG/EMI/Wippit taking into consideration royalty. Indeed, if one refers to the concept of private copy suitable for the French right, one knows pertinently that the copy should not be intended for a collective use. It is thus necessary to deduce from it a private use, i.e. reserved for the private use. Moreover, the number of copies carried out will be considered by the courts an index of the nonprivate character of the copy. However, in the species a user can, as from the moment when it paid one « royalty » to reach the files to put them in division for users having subscribed themselves to a subscription. One will wonder about the fact of knowing, and a fortiori it is not the case, if it is about a private use !

The logic which would prevail thus would be that of a new model where the rights of each user would be related to a deprived community inside which having the rights would authorize, because of a lump sum payment, with a division of the files.

As, one will follow with attention the developments of a decision of the Canadian federal court of last 31 March, namely as the remote loading of MP3 was covered by the exception of the copy deprived in royalty Canadian. Article 80 indicating : « (1) Subject to the paragraph (2), does not constitute a violation of the royalty protecting as well the sound recording as the musical work or the service from a musical work which constitute it, the fact of reproducing for private use the integrality or very great part of this sound recording, this work or this service on an audio support ». Moreover, it would seem for the judge that the fact of placing at the disposal in a file files for submission to third, third which would come without the knowledge of the owner of the files would make it possible to deduce an absence from intention of distribution of these files, no positive act not having been achieved by the owner of the aforesaid file.^195(*)

In the same way, a decision of the court of Haarlem in the Netherlands on May 12, 2004 débouté the local equivalent of the RIAA of its request to prohibit the search engine of files MP3 Zoekmp3.nl. Indeed, the precise judge in this decision, that the remote loading is not illegal, when it indicates : « the legislator stipulates, in comparison with the current law on the royalties and the law on the additional rights, as well as the directive [European] and its project of transposition, that the copy for private use (in this case by the means of remote loading) of a contravening/illegal file MP3 does not constitute a violation of the aforesaid the law... it can be question of fraudulent act only if the user of the downloaded file multiplies it or makes it available ». In other words, only the upload would be illegal for the Dutch judge. It will be necessary to await the decision in call to have more precision on the effects of this decision. ^196(*)

C - OD2

OD2 is a European company whose principal interest is to incorporate contents of artists and labels different and to make them distribute on Internet.

According to CEN/ISSS, it offers approximately « 100,000 tracks from major labels EMI, BMG, Warner Music and has number off independent labels ". ^197(*)

In term of safety, OD2 offers a service of Management of the numerical rights (DRM) based on the version7 of the software of management of the Rights of Microsoft^198(*) ; allowing by there the choice of a range of option in term of distribution and listening and ensuring an internal and external protection files of contents thanks to the last techniques of security and encryption.

In this respect, it will be noted that the various labels can according to their policy interns to choose among a panel (Figure 10) the rights associated with the various users of the contents.

It will be specified that moreover, it also offers to its partners ancillary services and in particular an information system making it possible the labels to follow the sales uninterrupted and proposing the information detailed on the transactions. ^200(*)

The list of the unit their customers in Europe shows that their step were already accepted per a many actors and not of least.^202(*)

One will await launching from here July of two offers, one coming from Sony with Sony Connect^203(*) and that of Fnac with Fnacmusique.com^204(*) which will be ensured of the services of MPO OnLine whose principal objective is to directly compete with the services of Virgin Megastore^205(*) ( Virginmega.fr) and Universal Music ( E-Compil.fr). ^206(*)

Thus, one can say, that the installation generalized of system of management of the numerical rights will be done in two times : the first time being that of discovered and the tests of various solutions through medium Internet, with models diversified such as those developed by APPLE, OD2, BMG, etc^207(*)

In parallel, the initiatives coordinated and complementary to industries and distributers in the sector of the traditional sale will allow short/medium term to make evolve/move the whole of the equipment so that they are in conformity and adequacy with the pilot experiments of management of the DRM on Internet.

When these stages are committed, the management of the numerical rights will spread and allow thus the new models economic of sale of the cultural goods to develop. ^208(*)

Section 2- Approaches contractual and financial

One will endeavor to plan different the existing formulas today on the market in order to appreciate the stakes and waitings of the customers in term of management and diffusion of contents for then evoking the new possibilities of remuneration of the authors through a system of DRM.

§1- CGV in force

Practically, to be interested at present has some of the various offers available on the market can enable us to have a more precise idea in the way in which the DRM can interact with the consumers and what they bring as well in terms of right of access as of restrictions.

One will with this intention try to study the most largely possible accessible CGV on the sites and to withdraw from them the lesson which is essential in particular taking into consideration de the rights on the files and the costs associated with those.

With- the associated rights

More generally, the question raised by the sale in line of digital components and in particular of works raises the question of the rights of the user.^209(*) It becomes necessary and desirable to specify the contents of the legitimate use of a work by the owner of « support » except considering that one directs oneself towards a right of access requiring a more specific mode.

1- Right of reading

The whole of the studied gates functions with a reader Windows Media Player^210(*) and only in one environment PC except obviously iTunes which if it functioned only under APPLE/macintosh until recently is now, also, available under PC.

It will be noted that Digifnac^211(*) also offers it, exclusively, of the remote loading under format WMA of share his partnership with OD2 while at the same time since years the whole of the titles in access on its site in www.fnac.com line for thirty seconds listening is accessible only with the reader RealPlayer de RealNetworks...

Nevertheless one will read in the section « Others » of the Wanadoo offer^212(*) that « When we suggest you «using the reader Media Microsoft version X», etc - we do nothing but recommend the tools best adapted to the reading of the titles. We do not make any promise or guarantee as for the performance of these tools. Any complaint on these tools must be made with their editor ».

In the same way, associated to reader WMA, the service remains inoperative under navigators such as Netscape, Opera, Firefox what obviously seems to restrict as much possibilities offered to the consumers who will have to be « compatible » and « counsel » Microsoft to have access to the whole of these services. ^213(*)

One will not study here Rhapsody^214(*) DIGITAL Music Service, subsidiary of Realnetworks which proposes a whole of services and a player different from that of Microsoft. However, it will be noted that according to Grandlnk^215(*), RealNetworks saw the use of its service of music in Rhapsody line growing of 14% in February 2004, with more than 48 million titles diffused with the request, that is to say an average of 1,6 million titles per day.

Rhapsody proposes a catalog of more than 600.000 titles to the diffusion, of which 500000 can be downloaded with the unit with the tariff of 76 hundreds. At December 31, 2003, RadioPass and Rhapsody counted 350.000 subscribers, against 250.000 to September 30, 2003 and 75.000 to December 31, 2002.

2- Right of engraving and transfer

The CGV of e-compil^216(*), service of Universal Music One Line indicate that the offers of remote loading in line of music are the subject of a license which allows to carry out an engraving on a support of the type CD-R and 3 transfers on portable peripherals. ^217(*)

The policy of OD2/MSN^218(*), gate emblematic of Microsoft, indicates well that the titles are supplied with a protected license which enables them to function only on the computer on which they were downloaded. But the number of possible engraving nor of transfer does not specify precisely : « You however can, for the majority of them, to engrave them on CD or to transfer them on a numerical walkman ». ^219(*)

The services offered by OD2/Wanadoo/MTV^220(*) and offer OD2/Wanadoo^221(*) indicate, clearly, that it is not possible of : «to make copies of the titles listened in « streaming » neither by safeguarding them on your hard disk, neither by engraving them on ROMANIAN CD, nor by transferring them on a numerical walkman, etc... On the other hand, the engraving and of numerical transfer on walkmans of the titles in remote loading are authorized a certain number of times. In order to know this number, follow the bond «Rights» associated with each title. You cannot either copy the titles to offer them, sell them, rent them, diffuse them, send them or give them to friends, with your family..., nor with very an other person ».

Fnac digital^222(*) indicates that the license allows a transfer « on your assistant or numerical walkman, but not on another computer. This license must systematically accompany file WMA so that the corresponding song can be played by Windows Player media ». ^223(*)

At Numéricable^224(*), the conditions are also rather vague insofar as they specify that if « All our music is supplied with a protected license which enables him to function only on the computer on which it was downloaded. In certain cases, you can engrave it on a CD-R or to transmit it to a numerical walkman but you will not be able to copy it from another computer ».

The offer suggested by Wallmart indicates that if one wants to listen to the titles downloaded on Wallmart after having bought a new computer, it is necessary beforehand to have made a copy of the titles and licenses corresponding and to transfer them on your computer. This option of « back up » of the licenses being done through Windows Media Player 9. This possibility of back up is possible on two computers in addition to that used.^225(*) Moreover, it makes it possible To engrave up to 10 times the downloaded titles.^226(*) The transfer to walkmans compatible with WMP is unlimited. ^227(*)

iTunes proposes when with him a possibility of engraving the titles on CD and in the case of of listening to them on iPods (wandering APPLE) in way unlimited a personal use and allows a transfer of those on three computers PC or Macintosh. ^228(*)

Like iTunes, Wippit makes it possible to the users to engrave the various titles downloaded on from CDs and to transfer them on walkmans. Moreover, Wippit allows the setting in division of the whole of the files downloaded within Wippit.

As we have just seen it, the offers are varied and are right also associated. One will however note a flexibility in the offers coming from US which are more flexible in their policy. Moreover, the provision of a customer service, accessible via mall and telephone number will allow, at least in posting, to have better a priori user point of view of.

3- geographical Restriction

At Numéricable^229(*), « certain titles can be compelled with geographical restrictions, which, unfortunately, will prevent certain people from buying them. That arrives when we were not authorized to sell certain songs in certain areas. We check that you can buy the music which you want before you add it to your basket. You will not be output for a title which you cannot download ».

DigiFnac associated with OD2 explains it also this geographical constraint exists and that it is : « directly related to the respect of the royalties and the producers of music. Indeed, certain songs suggested in the store of music in remote loading of Fnac.com can be distributed in all legality only near Net surfers located in certain very precise territories, other than very other. Such a territorial restriction is comparable with the zoning of the DVD which frames the conditions of distribution of films on this support ».

In the same way, for the moment, the offer of Wallmart is available only for the people lying in one of the 50 states of the United States. ^230(*)

The restrictions are for the majority of the services offered reserved to the country of issue of the offer insofar as partnerships were negotiated in this direction.

4- Right on the licenses

4.1- Expiry of the licenses

At Numéricable^231(*), it is astonishing of being able to read that : « The license remains valid as long as you are subscribed with a valid service. However, if you stop subscribing yourselves, the license will expire after a certain number of days and you will not be able to listen to your remote loadings any more ».

A recent development of Windows Media Player should make it possible the editor to integrate a new DRM. This one should normally give : « the possibility of integrating into an audio file a kind of internal clock which will be fixed over the duration of the subscription of the users to service MSN Music. As soon as the subscription of the user expires files WMA are more readable, neither on its PC, nor on its audio walkman. To reactivate the reading of the downloaded files it will then be necessary to continue or start again its subscription and to carry out a synchronization between the walkman and its PC ».^232(*)

At Wallmart one will note that after the purchase, the license of activation is valid during 120 days but as soon as the title was heard once, there is no limitation in time.^233(*)

A great difference between France and the United States is the absence with US of adequacy between the subscription and the right on the bought files. Besides one will wonder in it measure it is not a clause « abusive » in the direction where that does not allow a use adequate and proportioned files which finally remain some share « intrinsic property » of the suppliers and their labels.

4.2- Loss of license

At Numéricable^234(*), the possibility (after formatting of a hard disk for example) of recovering the licenses is possible since you : « you identifies [Z] as a holder of the license (what will be done while answering the questions of the phase of inscription). It to you will then be given a duplicate of your license. There is a limit with the number of specimens of a license of which you will lay out (this limit is in general 3, but it is fixed by the houses of discs and can vary from one title to another) ».

The policy of Fnac on the matter through OD2 is that you^235(*) will be needed : « to authenticate as a holder of the license validates on this song. Once duly authenticated through some questions concerning the jukebox which you created, a new license will be automatically downloaded to you on your computer. Caution: according to the agreements with the labels, you are authorized to download this license in general only one second time, with the title of the backup copy ! ».

At Wallmart, chain of supermarkets in the United States, it is specified that if `lon loses a song for example, one can Re-download it to the maximum three times. On the other hand, if this number is reached, « you will need to contact one off our Customer Service ace by sending year email to musicdownloads@walmart.com, but by calling 1-800-222-8132, available 24 hours has day, 7 days has week, who will determined possible yew it is to restore the song file ».^236(*) This last solution is also proposed at the time of a reinstalment of the system of your computer insofar as if the files could be restored it still misses the licenses.

As a whole, one can say that there are overall similarities in the manner of managing the licenses and their possible losses. The policy being at least of two with an established maximum with three times.

5- Right of Listening

At Numéricable^237(*), in certain cases, it is possible that with « certain remote loadings S [oient] assigned restrictions by the holders of rights (houses of discs). That relates to the free remote loadings in general. The screen of the details titles will then indicate the number of readings to you to which you have right ».

In the same way, certain remote loadings comprise a restriction of the number of days during which you will be able to listen to the title; this is indicated on the screens of details of the titles. After this period, you will not be able to play the title any more. There is also the case where the title cannot be played any more after a cut off date .

This policy will be also pursued by Fnac for : « certain songs in free remote loading (...) proposed on a purely promotional basis with the direction where you can listen to them only during one number of days limited, or for a number of listenings limited or until a deadline ».

The restriction of the rights to listening seems in the studied offers to be reserved in France for free titles. One can wonder whether this model is relevant. Would not be worth it to better give a right of listening in « streaming » free him without possibility of copy without giving an access in remote loading which could be capable to frustrate the user at the time of later listenings. Indeed, it would be tiresome for the consumer to have, with each piece among the unit it « playlist » that it was constituted, to check the rights associated with the file.

Recently, as we already specified, Microsoft announced that it planned to set up a system DRM in its MSN Service Music. This one, entitled «Janus enables songs distributed under has subscription model to portable Be transferred to devices, with has built in «time bomb» that enables songs to expires in the vent that has customer' S subscription lapses ».^238(*) Thus, the model which could prevail and begin this autumn, will be that of the subscription with the chart via various people receiving benefits. Moreover, the use by Microsoft, like APPLE of a format owner will reinforce the seizure of industries on the future standards.

B- Associated DRM and costs

The costs associated with the distribution with the contents on line are, in the examples which we had the occasion to treat distributed in two principal forms : the subscription where the purchase with the unit.

1- A the Unit

For APPLE and iTunes, the price is 0,99$ per downloaded title and the price of the albums varies according to the groups. For Wallmart, it is the same principle but the price of the title is to 0,88$. ^239(*)

One will note that if the purchase with the title remains, in spite of his price of low calls to US, rather expensive. But there still, the modes of consumption changed and it is according to the choices of each one. If the ones prefer to discover the whole of the album and not to restrict itself in the choice of a single title they can always do it and the reverse is true. Thus, a flexibility in function use of the needs for each one allows this adaptation. More generally, it would seem nevertheless that one directs oneself towards a model « with the access » of consumption of cultural goods.

2- Subscription

The concept of subscription seems to be in the middle of the European offers ; it privilege the monthly subscription which seems according to the offers to offer a good quality ratio/price if the Net surfer takes time to compare in fine the whole of the offers which are proposed to him.

One will note the important found variation, between the purchase of two CDs via a site of remote loading and a site of E-Trade.

2.1- Monthly subscription

With these offers one can add those done to the members who can profit from a surplus of appropriations according to the selected subscription. The system functions as follows :

- 10 appropriations : to download the title for l'écouter as long as you remain subscribed

- From 59 appropriations: download the title, you definitively can l'écouter, to engrave it and transfer it towards a compatible numerical reader.

Numéricable offers when to him another formula of subscription which is formulated kind.

However, if one looks at the average price on the site of a title, the system functions in the following way :

- 1249 appropriations : remote loading of an album of 15 titles = 83,2 appropriations per Title (ex : album « Who Of Us Two per M ")

- 1249 appropriations : remote loading of an album of 13 titles = 96,07 appropriations per Title (ex : album « South In North by Cheb Mami »)

And, if calculation is made, by album, in the two above mentioned cases one arrives at a price by album and according to the formula are equivalent to :

What remains much less expensive than a purchase in traditional line in a shop E-Trade like Fnac.com or Amazon.fr for example.

2.2- Annual subscription

The offer suggested by BMG via Wippit is a subscription of 30£ (53,8$) per annum^240(*) for a number of unlimited remote loading. EMI nevertheless negotiated an offer by title with 50pences (0,99$) not requiring the annual subscription.

2.3- With the chart

Within the framework of the formula known as « with the chart », if one re-examines the prices associated with the various above mentioned albums according to this offer, one obtains the following results :

Also, if it is more interesting at Numéricable to take the formula « subscription » it does not remain about it less than the formula « with the chart » allows a good quality ratio/price when the cost associated with the purchase with one with these albums.

At E-compil, the price with the title is rather expensive but simple in measurement or it acts of a microphone-payment of the audiotel type (1,35€+0,34€). ^241(*)

It is seen, the whole of the offers which are proposed propose models having a common base but which is different, are characterized by subtleties as well in terms of costs as of associated rights. Also, it would seem that it is a question, at present, to test various models of incomes and distribution through the various channels which exist in order to better determine waitings and the needs for the consumers/users^242(*) in order to propose to them from here some time one or more offers in adequacy with their waitings.

§2- DRM and Rémunération

So that a work of the spirit is protected by the royalty, one needs that it is original, i.e. it is the reflection of the personality of the author, of a clean creative activity. Thus, the author of a work, in French right, has at the same time moral and patrimonial rights^243(*) on this one. However, the article L. 122-5 of CPI also fixes and in a restrictive way of the exceptions not requiring the authorization of the author for the user of work.^244(*) It will have been included/understood, it acts of « private and free representations carried out exclusively in a family circle » and of « copies or reproductions strictly reserved for the private use of the copyist and not intended for a collective use ». ^245(*)

However in compensation of the damage undergone by the have-rights the legislator instituted a remuneration for private copy taken on any support of recording virgin and distributed between having the right of works and services fixed on the sound records or the videograms.^246(*)This remuneration being distributed between the manufacturers, the importers and the people realizing of intracommunity acquisitions on the sound and audio-visual virgin supports of recording.^247(*) It is about a contractual remuneration function of the type of support whose collection and distribution are made by civil companies of collective management.^248(*)

Remuneration for private copy^249(*) of sound records being realized by the SORECOP with a mode of distribution of the perceived sums of 50% for the authors 25% for the producers of sound records and 25% for the producers of videograms. COPIEFRANCE deals with perceiving the sums due to the title of the audio-visual private copy. Operation is slightly different in measurement or the scale is 33,33%. The first third going to the companies of authors, the second at the companies of artist-interpreters, the last at the companies of audio-visual producers.

SORECOP transfers:

50% with the college of authors (SACEM-SDRM, SACD, SCAM)

25% with the college of artist-interpreters (ADAMI, SPEDIDAM)

25% with the college of producers (SCP, SPPF, SCPA).

Copie France transfers:

1/3 with the college of authors (SACEM-SDRM, SACD, SCAM)

1/3 with the college of artist-interpreters (ADAMI, SPEDIDAM)

1/3 with the college of producers (PROCIREP/SCPA).^250(*)

As example, the SACEM charges the rights of the authors of music each time there are representation or reproduction of works which it manages. It in particular authorizes, in the form of contracts, the public diffusion of protected works. It is also charged to charge the royalties near the users. The amount of these rights being given according to the service rendered by the music. It is generally about a percentage on the trading incomes when the music is the essential object and of a fixed price when the music has only one role additional.^251(*)

With the title of the year 2002, the amount of the boxed rights was 672,4 million euros, in increase of 5,4% compared to 2001.^252(*)

The principal mission of the SACEM being to distribute with the authors, adapters, type-setters, arrangers, author-realizers and with their editors the rights which return to them.^254(*) The royalties income is thus distributed in the following way: 1/3 is versed with the author, 1/3 with the type-setter and 1/3 with the editor. When this same work is reproduced on CD, an audio or video cassette, a multi-media support, the «keys» of distribution are this time based on an agreement defined as a preliminary between all having them right of work.^255(*) It distributed thus, after deduction of the overheads and the funds devoted to the social action and cultural 530,8 million euros.

The installation of a system of management of the DRM, potentially attentatoire with the free right of private copy and thus with the right of the user on the other hand will reinforce the control of the author on the exploitation of his work to the title of remuneration for private copy. Indeed, at present and as indicates it the article L. 311-5 of CPI,^256(*) one is in a contractual system of management. However, a system of GDN allows because it is its vocation first to control the use which can be made numerical works and by allowing there the installation of a system of management of remunerations proportional to the number of copies carried out.

Like points out it professor Ginsburg, the right of access would allow a greater currently possible control than that: « The reproduction right, and its corollary, the distribution right, gave the copyright owner control over the making and dissemination off copies, goal ounce has particular Copy was sold, the copyright law did not constrain the purchaser' S further provision off that Copy ». ^257(*)

More generally, it is the problems of a change of paradigm with the numerical one which is posed. European Commission A included/understood well besides when it suggests a European legislation on the governorship of the collective trust companies.^258(*)

Indeed, it notes that « the domestic market became in a big part the framework for the management and the use of the royalty and the close rights (...) Under these conditions, an effective management of the rights is necessary to ensure the correct operation of the domestic market in this field. Moreover, it should be made sure that the management of the rights adapts to the new situations, as the request increasing for Community license for the use of certain rights and ensures a balance between on the one hand, the necessary protection and remuneration of the authors and the artists and on the other hand, the requests of the commercial users ».^259(*)

This request being relayed more and more by significant actors such as Yahoo, OD2, AOL, Cisco which « asked the European ministries for the communication joined together in Ireland on last 22 April, to work with the standardization of their legislations in terms of remuneration of the artists »^260(*) so, for example, to allow them in the long term, to launch services of music to Europe.

Conclusion

If the DRM seem to have to impose itself quickly in the management of the contents on line it is necessary nevertheless to have for the spirit of the articles such as « The Darknet and the Future off Content Distribution »^261(*) in which it is clearly explained : « There seem to Be No technical impediments to darknet-based peer-to-peer file sharing technologies growing in convenience, aggregate bandwidth and efficiency »^262(*) what would start again thus the debate on another model of control defended for example by Encircled^263(*) with Olivier Bomsel and Gilles Blanc. The latter, in a rather detailed note, and following Lionel Sobel^264(*) assert a different economic model based not on the DRM but rather on asymmetrical tariffing, i.e., a tariffing of the upload by the FAI making it possible to manage thus the whole of problems P2P.^265(*)

This assumption, it, having also been raised besides by the CSPLA when it indicates daN its opinion of March 2, 2004, « that certain reflections, which the representatives of the producers and the artist-interpreters are not associated, are currently carried out on the possibility of creating a general system of data-processing print making it possible to check if the exchanges of files on the network are authorized and, failing this, to block, out of any legal procedure, files exchanged unlawfully at the time of their passage by a waiter or a router. (...) it could not however be implemented that after making of a precise legal framework guaranteeing that the attacks likely to be carried to the freedom of communication and the secrecy of the choice of the programs necessary and are proportioned to the objectives ». ^266(*)

The debate could thus again enter within the framework of a responsibility for the FAI...^267(*)

In the same way, another initiative launched by the ADAMI intends to propose, the development of the legal license. Given that like the right to diffuse, after payment of an equitable royalty, the pieces of its choice among a given unit. This royalty having to be taken on the sales turnover of the FAI. However, of many difficulties remain outstanding and we think that this system related to the urgency would pose more problems and would dilute to some extent the royalty without answering in an adequate way waitings of the unit of the actors. ^268(*)

Thus, it is seen, the changes induced by technology work more and more the right and more particularly the rights of the users. And, us arrived here, indeed, in what predicted already a few years ago Jeremy Rifkin, at the age of the access.^269(*) Indeed, more and more, one will have access to a whole of specific services at limited lifespan. We are leaving behind us a world where the property prevailed for a world where the services and the rights of user become the angular stone. For some, « cultural industries are adapting to the not-competition and to change model of businesses; by doing this, they will discover new sources of value which will compensate and beyond, the profits which they drew from the physical distribution and the protection of works ». ^270(*)

Thus, one includes/understands better this logic of DRM which makes it possible to limit in time and in space according to the various formulas suggested the rights of the become users or in becoming to be consumers of cultural goods lifespan limited.

Appendices

Appendix 1: How C you like music ?

Appendix 2 : Examples of rights associated with Titles of musics on Fnac Digital

Appendix 3 : Examples of rights associated with Titles of musics on the Kiosk with Numéricable

Appendix 4 : Origin of the rights

Figures

FIGURE 9: TWO PEERS IN A PEER-TO-PEER ARCHITECTURE WITH CONTENT DRM-PACKAGED. CONTENT THE C HAS FUNCTIONALITY FOR ACCESSING WEB SERVICES. THE AUTHENTICATION SERVICE AUTHENTICATES P2' S IDENTITY, AND THE LICENSE SERVICE EXITS HAS LICENSE L FOR P1' S CONTENT C. 49

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Intellectual property and protection of the private life

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·Anne Lepage, general Sight on the exceptions and limitations with the royalty in the numerical environment, Bulletin of the royalty, March 2003, 18p.

· Thomas Ramsauer, Germany' S Law Copyright one the Edge off the Information Age, e.Copyright Bulletin, December 2003, 9p.

· Marlene Trezeguet, technical measurements of protection of a work confronted with the rights of the user, October 14, 2003,

· Sandrine Rouja, the American model of fight against the hacking of music exports herself: review, April 1, 2004, www.juriscom.net

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·Philippe Crouzillacq, representatives of the artists authorized to drive the pirates, 3/05/2004, www.01net.com

Cryptology & Watermarking

· Bernard DELFORGE, electronic Proof and safety of the exchanges in the information processing systems, 10 Mars 2003, 9p.

· Lionel S. Sobel †, DRM have year enabler business models off: ISPs have digital retailers, Berkeley Technology Law Journal, 2003, 29p.

· Isabelle Valiant, the skirting of technical measurements of Protection, counterfeit or Data-processing criminality, June 2003, 23p.

Interworking and DRM

· Rob H. Koenen, Lacy Jack, Michael MacKay and Steve Mitchell, The Long March to Interoperable DIGITAL Rights Management, January 2004, 17p.

· William B. Bradley, David P. Maher, The NEMO P2P Service Framework Orchestration, January 2004, 10p.

·Leonardo Chiariglione, Role off standardization in the DRM field, 25 Mars 2003,

· Renato Ianella, DIGITAL Rights Management (DRM) Architectures, D-Lib Magazine, v. 7, N. 6, June, 2001

· Bill Rosenblatt, Integrating DRM with P2P Networks: Future Enabling the off Content Online Business Models, November 18, 2003

Aspects Community

· Payment (This) No 45/2001 Of the European Parliament And the Council of 18 December 2000 relating to the protection of the physical people with regard to the processing the data in personal matter by the institutions and Community bodies and to freedom of movement of these data, 2000, 22p. http://europa.eu.int/comm/internal_market/privacy/index_fr.htm

·Article 29 Groups data protection, Working paper on the data-processing platforms of confidence, and, in particular, on the work carried out by Trusted Computing Group (Group TCG), January 23, 2004, 9p. www.europa.eu.int/comm/privacy

· Article 29 Groups data protection, Working paper on the Transfers of personal data towards third countries: Application of article 26 (2) of the directive of the EU relating to the data protection to the constraining rules the company applicable to the international transfers of data, June 3, 2003, 22p. www.europa.eu.int/comm/privacy

· First Commission Report on the implementation of the Directive on the data protection, « Analysis and impact study one the implementation off Directive EC. 95/46 in Member States », May 16, 2003, 68p.

·European Commission, Interior DG Marche, Services, Intellectual and Industrial Propriété, Medias and Protection of Give, the Director - National Notifications under the terms of article 26, paragraph 3 of the directive and exchange of better practices, August 21, 2003, 4p.

· The European Parliament, legislative Resolution of the European Parliament on the proposal for a Directive of the European Parliament and the Council relating to measurements and procedures aiming at ensuring the respect of the rights of ownership intellectual (COM (2003) 46 - C5-0055/2003 - 2003/0024 (COD)), 9 Mars 2004.

· The Council of the Union European, Proposal for a Directive of the European Parliament and the Council relating to measurements and procedures aiming at ensuring the respect of the rights of ownership intellectual - Text approved by the Permanent Representatives Committee, February 16, 2004, 27p.

· European Commission, Proposal for a Directive of the European Parliament and the Council relating to measurements and procedures aiming at ensuring the respect of the rights of ownership intellectual, January 30, 2003, 58p.

· European Commission, Commission Staff Working paper, DIGITAL Rights Management, February 14, 2002, 43p.

· Directive 2002/58/EC of the European Parliament and the Council, July 12, 2002, concerning the processing the data in personal matter and protection of the life deprived in the sector of the electronic communications

·Directive 2000/31/EC of June 8, 2000 relating to certain legal aspects of the services of the company of information, and in particular of the electronic trade, in the Domestic market (directive on the electronic trade), Official Journal of the European Communities, July 17, 2000, L 178/1 to 178/16.

· Directive 1999/93/EC on a Community framework for the electronic signatures, Official Journal of the European Communities, January 19, 2000, L 13/12 to 13/20.

· Directive 95/46/EC of the European Parliament and the Council of October 24, 1995, Directive relating to the protection of the physical people with regard to the processing the data in personal matter and to freedom of movement of these data, Texte published in the Official Journal of the European Communities n° L 281 of the 23/11/1995 p. 0031- 0050.

· European Commission, DIGITAL Rights Management (DRM) WORKSHOP, April 16, 2002, 7p.

· Blandine POIDEVIN, Comments on the European directive relating to the royalties, 17/07/2001

·Royalties: the Commission suggests a European legislation on the governorship of the collective trust companies, DNN: IP/04/492, 19/04/2004,

·Communication of the European Commission, the management of the royalty and the close rights within the domestic market, April 16, 2004, 21p.

Laws and court orders

· Law n° 2004-204 of bearing 9 March 2004 adaptation of justice to the evolutions of criminality, OJ n°59, 10 Mars 2004.

· TGI Nanterre, September 2, 2003, Mrs F.M. and UFC That To choose C/SA EMI Music France and co. Auchan France, Juriscom.net, 02/09/2003,

·Deprez, Dian Guignot, legal topicality; Communication, Media and Publicity, Monthly letter November 2003, p.5-6.

· Yannick-Eléonore Scaramozzino, Protection Of the Intellectual Property: Data protection in personal matter and Internet, 2003,

· United States District Short For the Northren District off California, box No C 02-1955 IF, 321 Studios v. Subway Golwyn Mayer Studios

· U.S. District Judge Richard Owen, 1:03 box - cv-08970-RO, Paramount Pictures and Twentieth Century Fox Film v. 321 Studios

· Senate: Examination and adoption of the bill for confidence in the numerical economy Thursday May 13, 2004. final text n° 75 (2003-2004)

Articles Internet

·The Parliament adopts the directive IP, Tuesday March 09, 2004, www.ratiatum.com

· The European Parliament adopts without blow to férir the directive on the intellectual property, March 10, 2004.

·Etienne Wery, Microsoft is condemned by the European Commission for abuse dominant position, 24 Mars 2004,

· Philippe Ricar, Brussels wants to put a term at the hegemony of Microsoft, March 24, 2004, p. 19.

· Jerome Bouteiller, RealNetworks wants to work with APPLE and his iPod, 24/03/2004, www.neteconomie.com

· Marie-Amélie Gervais, Judgment by twice, of the editor of software «DVD X Copy» allowing the hacking of DVD, 23/03/2004,

·Eric Barbry, anti-copy measurements: It is necessary to inform the consumer, Article published in the daily newspaper the Echoes of September 18, 2003,

·Christophe Lagane, the data-processing law and freedoms in the course of recasting, April 14, 2004, http://www.vnunet.fr

· Yves Grandmontagne, Microsoft and Time Warner Co invest in the numerical rights, April 6, 2004, www.silicon.fr

·Guillaume Champeau, the SOCAN supports the call of SHOUTED, April 16, 2004, www.ratatium.com

·ARIANE Beky, Royalty: Brussels militates for a European legislation, 19/04/2004, www.neteconomie.com

·Michel Ktitareff, Microsoft pays $ 440 million his litigation with Intertrust: zoom on the strategy of the editor, April 13, 2004, www.atelier.fr

·Known Jean-baptiste, InterTrust Lawsuit: Microsoft plays its numerical rights, 13/04/2004, www.01net.com

·The world sales of discs move back, but the paying remote loading is not profitable, 8/04/2004, www.atelier.fr

·Philippe Astor, APPLE is based on the sales records of the iPod for snober RealNetworks, April 19, 2004, www.zdnet.fr

·Stephan Length, «We will be able to go in justice to ask a FAI to act against piracy», 09/04/2004, www.01net.com

·Guillaume Deleurence, the LEN more reconciling with regard to the FAI, 09/04/2004, www.01net.com

·Arnaud Devillard, Christophe Pallez (Cnil): «We will have the possibility of giving fines» 19/04/2004, www.01net.com

·Christophe Guillemin, INTEL installs DRM in his chips for mobile apparatuses, April 20, 2004, www.zdnet.fr

·Music on line: Yahoo vis-a-vis the complexity of the licenses in Europe, 27/04/2004, www.atelier.fr

· Microsoft reveals its technology anti-hacking, Atelier groups BNP Paribas - 03/05/2004 www.atelier.fr/

· Microsoft introduces time into the security of the audio-visual files, 05/05/2004, www.neteconomie.com

·Sony launches Connect, its service of remote loading of music on line, 4/05/2004, www.atelier.fr

·Wouter Van Lancker, the MP3 with complete freedom in the Netherlands, May 13, 2004, http://www.ratiatum.com/

·Paule Gonzalès, Royalty: towards the end of the private copy, May 05, 2004, www.lefigaro.fr

· Domenica Piotet, For the honor of the pirate: would musical industry become luddist?, www.atelier.fr

· Estelle Dumout, Next stage for the LCEN: the constitutional Council, May 13, 2004, www.zdnet.fr

· Arnaud Devillard, Virgin and Fnac renovate their supermarkets of the remote loading, 14/05/2004, www.01net.com/article/242425.html

·Sabrina Brandner, MP3: to download is not to pirate, according to the court of Haarlem, 20/05/2004, www.Juriscom.net

Useful bonds

Against DRM?

· Peter Biddle, Paul England, Marcus Peinado, and Bryan Willmann, The Darknet and the Future off Content Distribution, 2002, 16p.

· Did Stuart Haber, Bill Horne, Joe Pato, Divide into volumes Sander, Robert Endre Tarjan, Trusted Systems Laboratory, If Piracy is the Problem, Is DRM the Answer? May 27th, 2003, 12p. http://www.hpl.hp.com/techreports/2003/HPL-2003-110.pdf

· The Forum of the rights on the Internet, Synthesis of the forum of discussion peer-to-peer: which use for which uses, June 20, 2003, 21p. www.foruminternet.org

· Jean-baptiste Soufron, the peer to peer vis-a-vis the logic of the royalty towards the necessary recognition of the right of the public, 01/07/03, 30p. http://soufron.free.fr

· Caroline Carpentier, private Life and electronic communications: A made union of compromise? , 13p.

· Guillaume Gomis, the Communities Peer-to-Peer and having right: peace by the legal license?, April 2, 2004, 5p. www.juriscom.net

Economic analysis

· Olivier Bomsel and Gilles the White, Encircled, Distribution of contents on Internet - Analysis economic of the remedies for the skirting of the rights of ownership intellectual, 14p. Working note Contango, 8 Mars 2004, www.cerna.ensmp.fr

·Olivier Bomsel with the collaboration of Jérémie Charbonnel, Gilles the White, Abakar Zakaria, economic Stakes of the distribution of the contents, Encircled, 52p., January 2004, www.cerna.ensmp.fr

·John Barrett, DIGITAL Music: Market, Services and Consumers, Parks Ace, 4Q 2003

· Douglas Lichtman and William Moors, indirect liability for copyright infringement: year economic perspective, Harvard Newspaper off Law & Technology, Volume 16, Number 2 Spring 2003, 16p.

· Felix Oberholzer, Koleman Strumpf, The Effect off Dirty Sharing Files one Record: Year Empirical Analysis, March 2004, 52p.

Tables of content

* ² One will note the initiatives of BMG in March 2004 (BMG sells his music in peer-to-peer legal, 17/03/2004, 01net. The catalog of the house of discs will be sold (...) on the English platform of exchange of Wippit files), Sony and Fnac next June (Fnacmusic.com, 18/03/2004, 01net.) and D `other older actors such as APPLE with itunes which sold more than 50 million songs since its opening in April 2003 (iTunes: 50 million songs, and the promotion of the iPod in http://www.atelier.fr/article.php?artid=27119&catid=30) no-claims bonus primarily in the United States and ecompil, Pressplay, MusicNet for example.

* ³ One will privilege the flexibility in use left to the consumer who will allow to make in kind discourage them « pirates » and to encourage the honest users.

* ⁵ The increase in the computing power of the computers makes it possible from now on «to break», by testing all the 256 possible keys. «Competitions» were organized to this end: a system made up of the supercomputer OF Cracker of the EFF (Electronic Frontier Foundation) and of 100.000 PC working in network with Distributed.net thus could «break» one OF the of 22 hours at the beginning of 1999 ». Henceforth, the NSA prohibited the use of for the American administration and recommends from now on the TDES (triple OF, three OF successive with two or three different keys) and can be soon the AES (Advanced Encryption Standard) resulting from the Belgian algorithm Rijndael. City in Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 46.

* ⁸In this respect, article 1316 of the Civil code gives a definition of the writing : « The literal proof, or written proof, results from a continuation from letters, natures, figures or of all other signs or symbols equipped with an understandable significance, whatever their support and their methods of transmission ». Article 1316-4 continues, in particular, on the electronic signature : « the signature necessary to the perfection of a legal document identifies that which affixes it. It expresses the assent of the parts to the obligations which rise from this act. When it is affixed by a public officer, it confers the authenticity on the act. When it is electronic, it consists of the use of a reliable process of identification guaranteeing its bond with the act to which it sticks. The reliability of this process is supposed, until contrary proof, when the electronic signature are created, the assured identity of the signatory and the guaranteed integrity of the act, under conditions fixed by decree as a Council of State ».

* ⁹ Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 51.

* ¹⁰ The license is a certificate specifying for a customer given the conditions and the rights of use of given contents. It contains information on the consumer, the product, the owner of the product, the key with which the contents were packaged, authorized rights and other information.

* ¹¹ Jon Lech Johansen, young person Norwegian 22 years called «DVD Jon» and become famous for his high facts in term of piracy on Internet, was recognized innocent by the Court of Appeal of Oslo of the charges carried by the studios of cinema of Hollywood which affirmed that it had enfreint the law by diffusing on Internet a program making it possible to unbolt DeCSS, a code preventing the film DVD copy. Jon Lech Johansen had already been discharged last January, and the Court of Appeal confirmed the first judgment which insisted on the fact that the young man could do what he wanted with his DVD, bought legally. http://www.journaldunet.com/0312/031223brefinter.shtml

* ¹⁶ Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p 64.

* ¹⁷ Daniel Sebaya notes: « Content The term darknet refers to the collection off networks used to share digital illegally. Thesis networks include peer-to-peer file sharing networks, have well have sharing off keys, passwords gold even music and movies in person. The furnace researchers At Microsoft believe that the darknet will never fully Be stopped ». Daniel Semaya, The Future off DIGITAL Rights Content Management for Distribution, May 30, 2003, p. 4. http://www.cs.princeton.edu/ugprojects/listing.php?user=dsemaya&type=senior One will read with all the more interest the document on Darknet of Peter Biddle, Paul England, Marcus Peinado, and Bryan Willmann. The darknet and the future off content distribution. November 18, 2002. http://msl1.mit.edu/ESD10/docs/darknet5.pdf

* ¹⁸ One will also observe the promising beginnings of a young Medialive company which has, in particular, developed a technology of progressive jamming of the contents not resting on watermarking. The guiding principles of Medialiving® process are: « Avoid content exposing Al online by extracting has off small part the digital stream and substitute has lure for it, sending has Lured_Mediafile®, with exactly the same length and same file format. The extracted share, generally butt 1% gold original less off the dated, is locked in A Control_File® server; Digital Distribute freely the lured stream; Distribute the extracted shares in real-time upon payment gold any other vent that would trigger year accesses authorization to the entertainment part. The Live_Composer® is reconstructing the original digital stream in No time ». Philippe Crouzillacq, Medialive places films and musics under high protection, 24/05/2004, www.01net.com/article/242984.html

* ¹⁹ It was born from fusion between language XMCL (extensible Media Trades Language) of Real Networks and from language MRV developed by Nokia. Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 83. Bill Rosenblatt, 2003 in Review: Standard DRM, January 5, 2004, http://www.drmwatch.com/standards/article.php/3295291

* ²⁰ http://www.xrml.org/ It is the new name of language DPRL (DIGITAL Property Rights Language) resulting from work of Xerox Palo Alto Research Center (Xerox-PARK) and whose patents are held from now on by Contentguard whose Microsoft is shareholder. Ibid, p. 84.

* ²³ « The Open DIGITAL Rights Language (ODRL) is has off proposed language for the DIGITAL Rights Management (DRM) community for the standardization expressing rights information over content. Flexible The ODRL is intended to provide and interoperable mechanisms to transparent support and innovative off uses digital resources in publishing, distributing and consuming off electronic publications, digital images, audio and movies, learning objects, computer software and other creations in digital form. The ODRL has No license requirements and is available in the spirit off «open source» software ».

* ²⁴ Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 88.

* ²⁵ Within this framework, one will note that the support provides can be it in several forms : completely not exploitable without the associated rights where partially exploitable, one thinks of commercial forms of diffusion, but requiring supplementary laws to reach the entirety of work.

* ²⁶ One will take again the typology drawn up by Philippe Chantepie in his report/ratio : Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p 12-15.

* ³³ Yves Grandmontagne, Microsoft and Time Warner Co invest in the numerical rights, April 6, 2004, www.silicon.fr

* ³⁴ This company, repurchased by Sony and Philips, is owner many technologies of multi-media encoding of contents.

* ³⁵ Michel Ktitareff, Microsoft pays $ 440 million his litigation with Intertrust: zoom on the strategy of the editor, April 13, 2004, www.atelier.fr, Jean-baptiste Known, InterTrust Lawsuit: Microsoft plays its numerical rights, 13/04/2004, www.01net.com

* ³⁶ From a legal point of view, one will specify for example that in a business TGI Nanterre, June 24, 2003, Association CLCV C/SA EMI Music France, the TGI states in particular that : « (...) the fact that the consumer cannot listen to CD on a car radio or a reader characterizes the inaptitude with the use of the product, when well even only certain CD are reached by this vice and some users concerned. The consumer by reading the mention «this CD contains a technical device limiting the possibilities of copy» cannot know that this system anti-copy is likely to restrict the listening of its disc on a car radio or a reader (...) ». www.juriscom.net/jpt/visu.php?ID=267. In the same direction, TGI Nanterre, September 2, 2003, Mrs F.M. and UFC That To choose C/SA EMI Music France and co. Auchan France, Juriscom.net, 02/09/2003, www.juriscom.net/jpt/visu.php?ID=348, Deprez, Dian Guignot, legal topicality; Communication, Media and Publicity, Monthly letter November 2003, p.5-6.

* ³⁷ In this respect, Directive IP Enforcement, was in the middle of the problems and it would seem that « the Parliament partly heard these remarks, ranges in particular of sharp voice by Eurolinux alliance, since the European deputies specified that the protection systems could be diverted if interworking required it for the free competition ». In the same way, the Bill of transposition of the Directive May 22, 2001 on the royalties indicates in the talk of its reasons : « Moreover, as for the systems of conditional accesses governed by article 95 of the law n° 86-1067 of September 30, 1986 relating to the freedom of communication, it is necessary to allow to the manufacturers technical systems or to the owners of service who wish interworking to be able to negotiate the provision, in nondiscriminatory conditions, licenses of development of technical measurements. This provision, whose application must be carried out in measurement strictly necessary to the needs for interworking with other technical measurements of protection, does not derogate however from article 6 of directive 91/250/EC of May 14, 1991 and from the article L. 122-6-1 of the code of the intellectual property which determine the conditions of access to information necessary to the interworking of a software ». Bill relating to the royalty and the rights close in the company to information, November 12, 2003, p. 1.

* ³⁸ For a more deepened study, Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, 148p.

* ³⁹ Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 19.

* ⁴⁰ Leonardo Chiariglione, Role off standardization in the DRM field, 25 Mars 2003,

* ⁴² European Commission, DIGITAL Rights Management (DRM) WORKSHOP, April 16, 2002, p. 3.

* ⁴³ Article 29 Groups data protection, Working paper on the data-processing platforms of confidence, and, in particular, on the work carried out by Trusted Computing Group (Group TCG), January 23, 2004, 9p. www.europa.eu.int/comm/privacy

* ⁴⁴ The TCG is a non-profit institution which belongs to an international organization having adopted the specifications of the TCPA (Alliance for a data processing of confidence). Ibid, p.3. https://www.trustedcomputinggroup.org/home

* ⁴⁶ Ibid, p. 4-5. It will be noted has that INTEL has just marketed new a range of processor intended to equip the personal assistants and mobile telephones multimedia which integrates its platform of safety «INTEL Wireless Trusted Platform». It has a system of integrated DRM which could prohibit the access to files not having the rights of access necessary (Christophe Guillemin, INTEL installs DRM in its chips for mobile apparatuses, April 20, 2004, www.zdnet.fr). One will be able to also read the document of INTEL entitled « Intel® Wireless Trusted Platform: Security for Mobile Devices »

* ⁴⁷ Directives 95/46/EC and 2002/58/EC on the level of the data protection in general and data protection in the electronic communications. But also the provisions of the directives «trades electronic», Directive 2000/31/EC of June 8, 2000 and «signatures electronic», Directive 1999/93/EC.

* ⁴⁹ It does not remain about it less than certain questions remain open and in particular the fact in the future of knowing where will be the Thirds of confidence (PCA) bus considering the importance of the data which they have in their possession, of the protection measures more than adequate will have installation so that those are not stored at the same time in only one place but also in only one State.

* ⁵⁰ Paul Horn, Elliot Maxwell, Susan Crawford, Promoting Innovation And Economic Growth: Special The Problem Off DIGITAL Intellectual Property, A Carryforward by the DIGITAL Council Connections off the Committee for Economic Development, p.16, 2004, www.ced.org/docs/report/report_dcc.pdf

* ⁵¹ Jörg Reinbothe, European Commission, DIGITAL Rights Management Workshop, Legal The Framework for DIGITAL Rights Management, Brussels, p. 4. 28 February 2002

* ⁵² Alessandro Acquisti, Privacy in Electronic Trades and the Economics off Immediate Gratification

* ⁵³ Philippe Chantepie, Technical Measurements of Protection of works & DRMS, 1ère Left: an Inventory of fixtures, January 8, 2003, p. 8.

* ⁵⁵ Article 9 Civil code : « Each one is entitled to the respect of its private life » ; article 8 of the European Convention of the Humans right : «1. Any person is entitled to the respect of her private and family life, her residence and her correspondence. 2. There can be interference of a public authority in the exercise of this right only in so far as this interference is provided by the law and that she constitutes a measure which, in a democratic company, is necessary to national safety, public safety, the economic welfare of the country, the defense of the order and the prevention of the penal infringements, with protection of health or morals, or with the protection of the rights and freedoms of others ». One will be able to read with attention an overall study of the concept realized by Nathalie Mallet-Poujol, Protection of the private life and the personal data, 52p. February 2004, www.educnet.education.fr/chrgt/guideViePrivee.pdf

* ⁵⁶ Royalty and the Internet, Report/ratio of Broglie, July 2000, p. 25-26.

* ⁵⁷ Blandine POIDEVIN, Comments on the European directive relating to the royalties, 17/07/2001

* ⁵⁸ Article 5 §2 b) « 2. The Member States have faculty to envisage exceptions or limitations with the reproduction right envisaged to article 2 in the following cases: (...) b) when they are reproductions carried out on any support by an individual for a private use and at purposes not directly or indirectly commercial, provided that the holders of rights receive an equitable compensation which takes into account the application or nonthe application of the technical measurements aimed to article 6 to works or objects concerned (...) » Directive 2001/29/EC

* ⁵⁹ It will be noted that these optional measurements are increasingly numerous in the directives in a political concern but they are in our opinion of strict interpretation i.e. without possibility of expansion or reduction, which is not always the opinion of certain States.

* ⁶¹ Article 6 : « (...) Technical measurements are considered effective when the use of a protected work, or that of another protected object, is controlled by the holders of the right thanks to the application of an access code or a process of protection, such as encoding, the jamming or any other transformation of work or the object protected or a mechanism from control of copy which achieves this goal of protection (...) ». Ibid This article was quite simply transposed to article 7 of the current French bill on the royalty.

* ⁶² European Commission, DIGITAL RIGHTS Background, Systems, Have, 14.02.2002, p. 8

* ⁶³ It should be examined by the Parliament as of the first six-month period 2004.

* ⁶⁴ Bill relating to the royalty and the rights close in the company to information, November 12, 2003, p. 1.

* ⁶⁶ One will limit here to the study strictly speaking measurements having an impact on the DRM.

* ⁶⁸ Law n° 2004-204 of bearing 9 March 2004 adaptation of justice to the evolutions of criminality, article 34 : « II. The article L. 335-4 is thus modified: 1° In the first subparagraph, the words: «two years of imprisonment and 150.000 EURO of fine» are replaced by the words: «three years of imprisonment and 300.000 EURO of fine»; 2° It is supplemented by a subparagraph thus written: When the offenses envisaged with the present article were made in organized band, the sorrows are carried at five years of imprisonment and 500.000 EURO of fine «.

* ⁶⁹ Article 13 : « Is compared to an offense of counterfeit: «1° the fact for a person of carrying reached, with full knowledge of the facts, with a technical measurement mentioned with the article L. 331-5 in order to deteriorate protection, assured by this measurement, bearing on a work; «2° the fact, with full knowledge of the facts, of manufacturing or of importing a technological application, a device or a component or of providing a service, intended to facilitate or allow the realization, in all or partly, fact mentioned with the 1° above; «3° the fact, with full knowledge of the facts, of holding for the sale, of the loan or the hiring, of offering to the sale, the loan or the hiring, of placing at the disposal in some form that it is a technological application, a device or a component or of providing a service intended to facilitate or allow the realization, in all or partly, fact mentioned with the 1° above ; (...) ». Bill relating to the royalty and the rights close in the company to information, November 12, 2003, p. 12.

* ⁷¹ Marie-Amélie Gervais, Judgment by twice, of the editor of software «DVD X Copy» allowing the hacking of DVD, 23/03/2004, www.njuris.com/ShowBreve.aspx?IDBreve=642

* ⁷⁴ Article 8 Al the 3 «holders of rights have faculty to take measures allowing to limit the number of copies ». Ibid, p. 8

* ⁷⁵ To allow the exercise of the exceptions, the Bill returns to the contractual agreements with the users....

* ⁷⁷ The whole of the rights of the user at the time of the remote loading of music on line is detailed in Chapter 2 of this study by a brief comparison of the offers of various people receiving benefits of contents on line in the sector.

* ⁷⁹ Eric Barbry, anti-copy measurements: It is necessary to inform the consumer, Article published in the daily newspaper the Echoes of September 18, 2003, www.cyberlex.org/barbry/proce_anti_copies.htm

* ⁸¹ TGI Nanterre, September 2, 2003, Mrs F.M. and UFC That To choose C/SA EMI Music France and co. Auchan

* ⁸³ The judge justifies as follows: (...) Waited indeed that the commercial exploitation of a film in the form of a DVD constitutes a mode of exploitation of many audio-visual works so that it is not contestable only this mode belongs to a normal exploitation such works; Waited until the copy of a filmographic work published on numerical support cannot like attacking the normal exploitation of work; Waited until this attack will be necessarily serious - within the meaning of the criteria retained by the convention of Bern - because it will affect a mode of essential exploitation of the aforesaid work, essential to the damping of its production costs; Waited until the safety device with which the DVD acquired by Stephan P. is equipped does not appear consequently to carry out a violation of the articles L 122-5 and L 211-3 of the code of the intellectual property; Waited finally, that it is indifferent until the virgin support acquired by Stephan P. could give place to the collection of a remuneration for private copy because the plate of this remuneration does not determine the range of the exception of private copy (...) Waited until if information specifies of the consumer on impossibility of realizing a private copy of the litigious DVD could have been reproduced on the jacket of this one, it remains that an essential characteristic of such a product the possibility does not constitute of reproducing it especially then that it cannot profit from the exception of private copy «. www.legalis.net/jurisprudence-decision.php3?id_article=722. The TGI of Paris judges legal the protection of the DVD against the private copy, May 3, 2004,

* ⁸⁷ A possibility remains nevertheless open, provision « optional » which leaves perplexed when with the final nature of these directives of harmonization of the national legislations within the European Union.

* ⁸⁸ Considering the 21, Council of the Union European, Proposal for a Directive of the European Parliament and the Council relating to measurements and procedures aiming at ensuring the respect of the rights of ownership intellectual - Text approved by the Permanent Representatives Committee, February 16, 2004, p. 7. Considering 22bis indicating as for him : « Without damage of any other measurement or measures corrective existing, the holders of the rights should have the possibility of asking an injunction against an intermediary whose services are used by a third to attack the patent right of the holder ».

* ⁹¹ The Parliament adopts the directive IP, Tuesday March 09, 2004, www.ratiatum.com

* ⁹³ Directive on the respect of the rights of ownership intellectual: the French government greets this Community projection in the fight against the counterfeit, Paris, April 30, 2004,

* ⁹⁴ One will be able to read, on the transposition by Germany : Thomas Ramsauer, Germany' S Law Copyright one the Edge off the Information Age, e.Copyright Bulletin, December 2003, 9p.

* ⁹⁶ EUCD.INFO, electronic Systems of management of the rights («DRM») and personal data protection, February 7, 2003, http://eucd.info/

* ⁹⁹ In particular the initiative of Microsoft and its new system renamed Longhorn, Next Generation Secure Computing Bases www.theregister.co.uk/content/4/25852.html and Trusted Computing Platform Alliance (TCPA) the purpose of which is to even set up systems of DRM at the level of the infrastructure.

* ¹⁰⁰ Julie E. Cohen, DRM and Privacy, 2003, The Berkeley Technology Law Newspaper, p. 1.

* 101 Ibid, p. 11. In the same direction: « Too many businesses, including many off the leading-edge entrepreneurial companies emerging one the Internet, cuts off not focused enough one the been worth customer profile. The winners and losers off this new will era will Be determined by who has rights to on-line customer profile " and «There will eventually Be acquisitions that are based one to consume dated, where the primary ace that' S being bought is the to consume dated. (...) Consumer dated right now is the currency off E-trade in A batch off ways. Those are valuable customers because they' ve shown that they' Re buyers, and they' ve bought from has competing blind. (...) Names in A database save has company from spending marketing dollars to acquire has customer - usually butt $100 per customer ». HALPERN and HARMON,

* ¹⁰² Article 8 of the Charter of the basic rights recalls the principle of the data protection in personal matter. 18/12/2000, www.info-europe.fr/doc02/223/g000d992.pdf

* ¹⁰³ European Commission, DIGITAL RIGHTS Background, Systems, Have, 14.02.2002, p. 14.

* ¹⁰⁴ In this respect it will be noted that considering it 57 of Directive 2001/29/EC indicates : « The systems relating to information on the mode of the above-mentioned rights also can, according to their design, to treat data in personal matter relating to the spending patterns of the private individuals as regards the protected objects and to allow the observation of the behaviors on line. These average techniques must, in their technical functions, to incorporate the principles of protection of the private life, in accordance with directive 95/46/EC of the European Parliament and the Council of October 24, 1995 relating to the protection of the physical people with regard to the processing the data in personal matter and to freedom of movement of these data ».

* ¹⁰⁵ One also conscious of the problems binding will be given personal and addresses IP since it is advisable to agree on the fact that « address IP of the Net surfer can be described as indirectly personal data ». Quoted in Sophie Lalande, address IP of your computer, a personal data concerned with the mode of protection of the community system of protection ?, p. 10. www.droit-tic.com. The CNIL considering for this reason that « only the public people or the private people in charge of a public utility can, under the terms of article 30 of the law of January 6, 1978, to constitute files while containing ». But, the CSPLA wishes that the Parliament find, within the framework of the reform of the law of January 6, 1978, and in the respect of the directive of October 24, 1995, a solution allowing the trust companies and having the right to proceed to the constitution of such files with an only aim of ensuring the protection of these rights.

* ¹⁰⁶ Even « to know with precision the contents themselves, including, being in particular written works, concerning the aspects sensitive of the private life enumerated to article 31 of the law of January 6, 1978: political or philosophical opinions, religion, trade-union membership, manners of the people ». CSPLA, Commission Report on the author's copyright and artistic and personal freedoms, June 26, 2003, p. 6. www.culture.gouv.fr/culture/cspla/raplibertesindiv.pdf

* ¹⁰⁸ Christophe Espern, Interworking: Arlésienne of the DRM, http://eucd.info/ddm.fr.php. One will study these aspects, as a partulier within the framework of Directive IP Enforcement.

* ¹¹¹ In this respect, the CNIL indicates that in accordance with article 30 of the Data-processing Law Freedoms of January 6, 1978, only the public people or the private people in charge of a public utility can carry out such treatments the ends of prevention and repression of the infringements

* ¹¹² Bill relating to the protection of the physical people with regard to the processings of data in personal matter and amending the law n° 78-17 of January 6, 1978 relating to data processing, the files and freedoms. http://www.assemblee-nationale.fr/12/projets/pl0762.asp

* ¹¹⁴ Philippe Crouzillacq, representatives of the artists authorized to drive the pirates, 3/05/2004, www.01net.com

* ¹¹⁹ Arnaud Devillard, Christophe Pallez (Cnil): «We will have the possibility of giving fines» 19/04/2004, www.01net.com and Christophe Lagane, the data-processing law and freedoms in the course of recasting, April 14, 2004, http://www.vnunet.fr

* ¹²⁰ Considering n° 4 of the directive of July 31, 2002 : « (...) Directive 97/66/EC must be adapted to and the technology market trends of the electronic services of communications in order to guarantee a level equal of data protection in personal matter and life deprived to the users of services of electronic communications accessible to the public, independently of technologies used (...)«.

* ¹²¹ Article 1st subparagraph 2 of directive 2002/58 of July 31, 2002 : « The provisions of this directive specify and supplement directive 95/46/EC ».

* ¹²⁵ CJCE, November 6, 2003, C-10101 business, Bodil Lindqvist ; Yannick-Eléonore Scaramozzino, Protection Of the Intellectual Property: Data protection in personal matter and Internet, 2003, www.scaraye.com/article.php?rub=6&sr=14&a=60

* ¹²⁶ The Law on the Numerical Economy (LEN) http://ameli.senat.fr/publication_pl/2003-2004/144.html and www.senat.fr/leg/pjl03-144.html This Bill which should be definitively adopted at the end of April 2004 had a at the very least chaotic course: the text of the preliminary draft of law on the numerical economy goes back to mid-November 2002, the adoption in the Council of Ministers of January 15, 2003; the text adopted in first reading by the French National Assembly of February 26, 2003. Then, the text adopted by the Senate in first reading comes on June 25, 2003. Then, the text adopted by the French National Assembly in second reading on January 8, 2004 (Articles 1 to 14 - Articles 15 at end). Lastly, the text of the bill was forwarded to the Senate on January 9, 2004.

Complete file : www.assemblee-nationale.fr/12/dossiers/economie_numerique.asp. The Law on the Numerical Economy finally was on adopted May 13, 2004 (Senate: Examination and adoption of the bill for confidence in the numerical economy Thursday May 13, 2004. final text n° 75 (2003-2004)

* ¹²⁷ Ultimate episode, the parliamentary groups PS and PC announced that they will seize together the constitutional Council on certain provisions of the LEN, Estelle Dumout, Prochaine stage for the LCEN: the constitutional Council, May 13, 2004, www.zdnet.fr

* ¹³¹ Modification of the article 2bis8: « The legal authority can prescribe in summary procedure or on request, with any person mentioned to the 1 and 2, all measurements suitable to put an end to a damage caused by the contents of a service of public communication on line, such as those aiming ceasing storing these contents or, failing this, at ceasing giving access of them ». Text n° 144 (2003-2004) transmitted to the Senate on January 9, 2004, http://www.senat.fr/leg/pjl03-144.html the text adopted by the senate on April 8, 2004 indicates : « The legal authority can prescribe in summary procedure or on request, with any person mentioned to the 2 or, failing this, with any person mentioned to the 1, all measurements suitable to prevent a damage or to put an end to a damage caused by the contents of a service of communication to the public on line » http://ameli.senat.fr/publication_pl/2003-2004/144.html. It is this text which was adopted on May 13, 2004, article 6-8, Bill for confidence in the numerical economy www.senat.fr/pl/75-0304.pdf.

* ¹³² Stephan Length, «We will be able to go in justice to ask a FAI to act against piracy», 09/04/2004, www.01net.com

* ¹³³ Guillaume Deleurence, the LEN more reconciling with regard to the FAI, 09/04/2004, www.01net.com

* ¹³⁴ Article 1st of the Bill for confidence in the adopted numerical economy on May 13, 2004, www.senat.fr/pl/75-0304.pdf.

* ¹³⁵ To look further into this subject, one will read: Julien Lacker, works in line in compared right: rights American and French, May 2003, 79p. www.juriscom.net

* ¹³⁶ Intellectual Property and the National Information Infrastructure, The Carryforward off the Working Group one Intellectual Property Rights, 15 November 1995, www.uspto.gov/web/offices/com/doc/ipnii/

* ¹³⁷ The ease off infringement and the difficulty off detection and enforcement will causes copyright owners to look to technology, have well have the law, for protection off to their works. However, it is clear that technology edge Be used to defeat any protection that technology may provide. The Working Group finds that legal incentive protection alone will not Be adequate to provide to authors to create and to disseminate works to the public. Similarly, technological effective protection likely will not Be unless the law also provides sum protection for the technological processes and systems used to prevent gold restrict unauthorized use copyrighted works off. (...) Therefore, the Working Group recommends that the Copyright Act Be amended to include has new Chapter 12, which would include has provision to prohibit the importation, manufacture gold distribution off any device, product gold component incorporated into has device gold product, but the provision off any service, the primary purpose gold effect off which is to avoid, bypass, remove, deactivate, but otherwise circumvent, without authority off the copyright owner gold the law, any process, treatment, mechanism gold system which prevents gold inhibits the exclusive violation off any off the rights under Section 106. The provision will not eliminate the risk that protection systems will Be defeated, goal it will reduce it. Intellectual Property and the National Information Infrastructure, The Carryforward off the Working Group one Intellectual Property Rights, 15 November 1995, p. 230. www.uspto.gov/web/offices/com/doc/ipnii/

* ¹³⁸ It is an in particular question owing to the fact that the «Section 1201 divides technological measures into two categories: measures that prevent unauthorized accesses to has copyrighted work and measures that prevent unauthorized copying off has copyrighted work ». The DIGITAL Millennium Act Copyright, 17 U.S.C.S. 1201, 1202, December 1998, p. 4. www.copyright.gov/legislation/dmca.pdf

* ¹⁴⁰ Rémy KHOUZAM, How the fear of under-protection will generate the catastrophe of over-protection: constitutional examination of the DIGITAL Millenium Copyright Act (DMCA), 2004

www.lex-electronica.org/articles/v9-1/khouzam.htm; Douglas Lichtman and William Moors, indirect liability for copyright infringement: year economic perspective, Harvard Newspaper off Law & Technology, Volume 16, Number 2 Spring 2003, 16p.

* ¹⁴¹Copyright & Fair Use Overview :http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

* ¹⁴⁴ Sandrine Rouja, the American model of fight against the hacking of music exports herself: review, April 1, 2004, www.juriscom.net

* ¹⁴⁸ Article 29 Groups data protection, Working paper on the Transfers of personal data towards third countries: Application of article 26 (2) of the directive of the EU relating to the data protection to the constraining rules the company applicable to the international transfers of data, June 3, 2003, 22p. www.europa.eu.int/comm/privacy

* ¹⁴⁹Article 25- Principles 1. « The Member States provide that the transfer to a third country of data in personal matter being the object a treatment, or intended to be the subject of a treatment after their transfer, can take place only if, subject to the respect of the national provisions taken pursuant to the other provisions of this directive, third country in question ensures an adequate level of protection ». Directive 95/46/EC of the European Parliament and the Council of October 24, 1995, directive on the protection of the physical people with regard to the processing the data in personal matter and to freedom of movement of these data, Texte published in the Official Journal of the European Communities n° L 281 of the 23/11/1995 p. 0031- 0050.

* ¹⁵⁰In particular the following provisions interest us : Article 26- Exemptions 1. « Notwithstanding article 25 and subject to contrary provisions of their national law governing of the particular cases, the Member States provide that a transfer of data in personal matter towards a third country not ensuring an adequate level of protection within the meaning of article 25 paragraph 2 can be carried out, provided that: ) the person concerned has undoubtedly gave her assent to the transfer considered or

b) the transfer is necessary to the fulfilment of a contract between the person concerned and the person in charge for the treatment or for the execution of précontractuelles measurements taken at the request of the person concerned or

c) the transfer is necessary to the concluding or the fulfilment of a concluded contract or to conclude, in the interest of the person concerned, between the person in charge for the treatment and a third or

d) the transfer necessary or is made juridically obligatory for the safeguard of an important public interest, or for the observation, the exercise or the defense of a right in justice or

e) the transfer is necessary to the safeguard of the vital interest of the person concerned or

f) the transfer intervenes at the beginning of a public register which, under the terms of legislative or lawful provisions, is intended for the information of the public and is opened with the consultation of the public or any person justifying of a legitimate interest, insofar as the legal conditions for the consultation are met in the particular case . 2. Without damage of paragraph 1, a Member State can authorize a transfer, or a whole of transfers, data in personal matter towards a third country not ensuring an adequate level of protection within the meaning of article 25 paragraph 2, when the person in charge for the treatment offers sufficient guarantees in comparison with the protection of the private life and freedoms and basic rights of the people, like with regard to the exercise of the corresponding rights; these guarantees can in particular result from suitable contractual clauses ». Directive 95/46/EC of the European Parliament and the Council of October 24, 1995, directive on the protection of the physical people with regard to the processing the data in personal matter and to freedom of movement of these data, Texte published in the Official Journal of the European Communities n° L 281 of the 23/11/1995 p. 0031- 0050.

* ¹⁵¹ First Commission Report on the implementation of the Directive on the data protection, « Analysis and impact study one the implementation off Directive EC. 95/46 in Member States », May 16, 2003, 68p.

* ¹⁵² European Commission, Interior DG Marche, Services, Intellectual and Industrial Propriété, Medias and Protection of Give, the Director - National Notifications under the terms of article 26, paragraph 3 of the directive and exchange of better practices, August 21, 2003, p. 1.

* ¹⁵⁴ In particular the opinion of January 29, 2004, Article 29 Groups data protection, opinion 2/2004 on the adequate level of protection of the data in personal matter contained in the files of the air passengers (PNR) transferred to the Office from the customs and protection from the borders from the United States (US CBP), Adopté on January 29, 2004, 14p.

* ¹⁵⁷ « (...) In parallel, the Council examined a project of negociating brief between the European Union and the United States intended to create the obligation for the airline companies to transfer the data passengers to the American authorities and to authorize these last to be reached directly the systems of reservation. It is in this context that the European Parliament, seized of this draft agreement, decided on April 21 2004 to seize the Court of Justice so that it comes to a conclusion about its compatibility with the European legislation ». PNR: last evolutions, 3/05/2004, www.cnli.fr

* ¹⁵⁸ Decision of the Commission relating to the standard contractual clauses for the transfer of data in personal matter towards third countries, June 15, 2001, 14p.

* ¹⁶⁰ Renato Ianella, DIGITAL Rights Management (DRM) Architectures, D-Lib Magazine, v. 7, N. 6, June, 2001

* ¹⁶¹ Grouping of the Editors of Services On Line, the management of the numerical rights, DRM - DIGITAL Right Management, the cards sets of themes, May 2003, p. 1. www.geste.fr/fiches/fiches/fiche3_drm1.pdf

* ¹⁶² Mikko Löytynoja, Tapio Seppänen, Nedeljko Cvejic, MediaTeam Oulu, Information Processing Laboratory, Experimental DRM Structure Using Watermarking and PKI, University off Oulu, Finland, p. 2.

* ¹⁶³ In this respect, it will be noted that this system is not closely related to alliances of manufacturers such as the TCG like with the initiatives of Microsoft with Longhorn and TCPA.

* ¹⁶⁴ The license is a file XML (containing at the same time the certificate of the user, the key of decoding of the contents encryptée with the public key of the user and information suitable for the use of the license). The key of coding is encryptée according to a coding XML and the license is signed with a signature XML.

* ¹⁶⁵ At present, this system uses as language of the XML what makes it possible for the moment only to define simple rights of users as a long time as the license is valid. It is obvious that then the system will use a language of the type ODRL or XrML.

* ¹⁶⁷ For recall, a certificate is a document which makes it possible to attest that a public key belongs to you. For that, it contains several information (public key, name, company, email, validity date of the certificate,....). This information is certified to be right by an authority of certification (CA, ex : Verisign) which is supposed to have checked this information before to have validated your certificate. CA chops and signs the certificate using its own private key. It is thus enough to know its public key to check the validity of a certificate generated by it. Authentification by certificates X.509, Patrick Chambet, April 1999, p. 3.

* ¹⁶⁸ The certification authority (CA) is share off PKI. Its task is to link the identities off users and to their encryption key even together using certificates. The architecture use X.509 certificates, which are used to verify the authenticity off licenses and authorize the buying off them.

* ¹⁶⁹ One is reminded that the system functions only insofar as the users do not divide their private key...

* ¹⁷⁰ « Currently the protection mechanism is implemented directly in the player, goal in the future we to plan uses downloadable tools in the player to extract the watermark and decrypt the content. The watermark is used to content identify Copy protected and to curry information needed to acquire has license ». Mikko Löytynoja, Tapio Seppänen, Nedeljko Cvejic, MediaTeam Oulu, Information Processing Laboratory, Experimental DRM Structure Using Watermarking and PKI, University off Oulu, Finland, p. 5.

* ¹⁷¹ One will refer to the document to have more precise details on the methods tested of attacks on this system. Ibid, p. 6.

* ¹⁷⁴ Microsoft reveals its technology anti-hacking, Atelier groups BNP Paribas - 03/05/2004 www.atelier.fr/ ; Microsoft introduces time into the security of the audio-visual files, 05/05/2004,

* ¹⁷⁹ One year after, APPLE sold approximately 50 million titles, iTunes: 50 million songs, and the promotion of the iPod in no-claims bonus, March 17, 2004,

* ¹⁸⁶ In the long term, it is a question from approximately 200 000 titles.

* ¹⁸⁷ The tariff offers proposed by Wippit recently fell what seems to be the beginning of a price war in Europe, war of conquest of a market: «Wippit will salt summons downloads, including Outkast' S hit individual «Hey Ya!,» for 29 pence; others will Be priced At 49 pence, 79 pence and 99 pence ». Reuters, Wippit Triggers Price War with 29p Song Downloads, Fri Apr 2, 2004

* ¹⁹⁶ Wouter Van Lancker, the MP3 with complete freedom in the Netherlands, May 13, 2004, http://www.ratiatum.com/

* ¹⁹⁷ CEN/ISSS, DIGITAL Rights Management, Final Carryforward, September 30, 2003, p. 82-83. www.cenorm.be

* ²⁰² France (Alapage.com, Fnac.com, MSN France, MTV France, NC Numericable, Tiscali, Wanadoo); The United Kingdom (mycokemusic.com, MSN Music Club, Freeserve Music Club, HMV DIGITAL Downloads, Tiscali Music Club, Ministry Off Sound, Virgin Downloads); Germany (Tiscali OF, Karstadt, www.kontor.cc, MTV OF, www.wom-download.de, Markt Media) ; Austria (musicdownload.aon.at, Chello Musiczone), Switzerland ( www.directmedia.ch), Italy (Tiscali IT, MTV IT) ; Spain (Tiscali ES, Prisacom, MTV ES) ; Belgium (Skynet Belgacom) ; Holland (Tiscali NL, MTV NL)

* ²⁰³ www.connect.com/index.asp Sony Connect will propose a catalog of 500.000 titles in remote loading with the chart, in a format owner compatible with the only numerical walkmans of Sony, http://news.grandlink.org/2004-03-08/03-12-334-vendredi.html. This service is on line since May 4, 2004 (Sony launches Connect, its service of remote loading of music on line, 4/05/2004, www.atelier.fr). On the other hand, the format Sony owner indeed was that selected : the downloaded titles could be read only by apparatuses of Sony mark.

* ²⁰⁵ Launched on last 18 May, the new version of the site proposes tariffs which are becoming the standard of the market: « between 0,99 euro and 1,19 euro the title and of 9,99 euros to 11,99 euros the album, according to their innovation ». Arnaud Devillard, Virgin and Fnac renovate their supermarkets of the remote loading, 14/05/2004, www.01net.com/article/242425.html

* ²⁰⁶ Estelle Dumout, Fnac prepares her site of musical distribution, March 15, 2004,

* ²⁰⁷ Europe' S Legitimate Music Download Sites Rush To Beat iTunes, 05/02/2004,

* ²⁰⁸ One will remember the remarks made by Jeremy Rifkin in the Age of the access : the revolution of the new economy. The Discovery, 2000, 395p.

* ²⁰⁹ Marlene Trezeguet, technical measurements of protection of a work confronted with the rights of the user, October 14, 2003, www.cejem.com/article.php3?id_article=135

* ²¹⁰ It will be noted that in measurement or OD2 is a distributer having signed an agreement with Microsoft, it diffuses his offer under his format owner, the WMA.

* ²¹³ One will easily include/understand the satisfaction of RealNetworks at the time of the sanction of Microsoft by the European Commission on March 24, 2004. Indeed, judge this decision « basically important because the Commission formally affirmed that the strategy of Microsoft to integrate Media Player is illegal ». Philippe Ricard, Brussels wants to put a term at the hegemony of Microsoft, the World, March 24, 2004, p. 19. With the call formulated by Rob Glazer, president and founder of RealNetworks for « that they open the walkman iPod with technologies external like the RealAudio codes and the solutions of DRM Helix » (Jerome Bouteiller, RealNetworks wants to work with APPLE and its iPod, 24/03/2004, www.neteconomie.com) Steve Jobs A seems T it answered by the negative one when it indicates in an interview granted to Wall Street Journal : «The iPod walk already with the service of music in line n°1 in the world (iTunes Music Blind, note), and iTunes Music Store goes with the world number one of the numerical walkmans. The numbers two are very far behind. Why you would like that we work with numbers 2» (Philippe Astor, APPLE supports on the sales records of the iPod for snober RealNetworks, April 19, 2004, www.zdnet.fr)

* ²¹⁹ It states nevertheless that: « All the songs inevitably do not have the rights of engraving. They are the houses of discs (Labels) which decide these rights for each song. The Reader Media checks the licenses of each song to check that such or such title has the rights enabling him to be engraved. (...) The permanent remote loadings can be copied by the reader Windows Media from walkmans ».

* ²²³ On the other hand, on line is indicated for each title of the album the characteristics and rights associated with this one (cf Appendix 2)

* ²³⁵ If you lost a license or a song and/or all the songs and/or all files WMA corresponding.

* ²³⁹ One will note with interest that for APPLE (but that seems to be valid for the other distributers) the remote loading on line is not especially profitable. Indeed, on the 99 hundreds of a song the diffusion manufacturer/perceives only 10 hundreds... Remain however the enormous impact, for APPLE, of Ipod which allows, only, to listen to the downloaded songs. Indeed, the sales of the walkman generated a sales turnover of 264 million dollars, i.e. 13,8% of the incomes of the manufacturer (the world sales of discs move back, but the paying remote loading is not profitable, 8/04/2004, www.atelier.fr).

* ²⁴¹ One will read with attention the article published on the site of the FING, Cyril Fiévet, Micropaiement, mégatendance? 16/03/2004, www.fing.org/index.php?num=4723,2

* ²⁴⁸ On the question of the relationships to the right of the competition : CSPLA, Author's copyright and artistic and right of competition, February 2004, p. 21-28.

* ²⁴⁹ Remuneration for private copy was founded by the Law Lang of July 3, 1985 in order to compensate for the losses which generates the copy by the private individuals of sound records and the services recorded and diffused by the radios and televisions. http://saceml.deepsound.net/index.html

* ²⁵² The rights coming from the producers of sound records, of the editors of videograms, multi-media Internet, the supports as well as private copy, are in rise of 20,5%. They account for 24% of the rights of the SACEM, against 21% in 2001. Rights relating to the sales of discs: in progression of 10,2%, particularly favorable result in a very disturbed international market and in fall of- 9%. Rights of the sector of the video: record a strong progression (+35,7%), because of the sales turnover generated by the DVD. Rights coming from the exploitation of musical works starting from Internet: in evolution very favorable, especially in the field of telephony with the remote loading of ringings for the portable telephones (1,3 million euros). On the other hand the rights coming from the supports multi-media are falling. The private Copy: the total progression is +68,5%. The sound private copy represents the ¾ boxed rights. www.sacem.fr

* ²⁵⁷ Julien Lacker, works in line in compared right: rights American and French, May 2003, p. 28. www.juriscom.net

* ²⁵⁹ Royalties: the Commission suggests a European legislation on the governorship of the collective trust companies, DNN: IP/04/492, 19/04/2004,

* ²⁶⁰ Music on line: Yahoo vis-a-vis the complexity of the licenses in Europe, 27/04/2004, www.atelier.fr

* ²⁶³ Olivier Bomsel and Gilles the White, Encircled, Distribution of contents on Internet - economic Analysis of the remedies for the skirting of the rights of ownership intellectual, 14p. Working note Contango, 8 Mars 2004, www.cerna.ensmp.fr and Olivier Bomsel with the collaboration of Jérémie Charbonnel, Gilles the White, Abakar Zakaria, economic Enjeux of the distribution of the contents, Cerna, 52p., January 2004, www.cerna.ensmp.fr

* ²⁶⁴ Lionel S. Sobel †, DRM have year enabler business models off: ISPs have digital retailers, Berkeley Technology Law Journal, 2003, p. 14-15.

* ²⁶⁵ A contrario, a study published by Felix Oberholzer-Gee, of Harvard, and Koleman Strumpf, of the university of North Carolina-Chapel Hill indicates that the P2P has only one weak impact on the CD sales. According to them, «the Net surfers who download music on line are individuals who would not have bought the album, even if the systems of exchange did not exist. The exchange of files would not threaten musical industry », Workshop BNP Parisbas, March 31, 2004 and Felix Oberholzer, Koleman Strumpf, The Effect off Dirty Sharing File one Record : Year Empirical Analysis, March 2004, 52p.

* ²⁶⁷ But already of the voices protests against these proposals : « In conclusion, it seems to us that the proposal of a tariff-floor for the upload is a dangerous lawful innovation for the future of cultural industries. This proposal explicitly aims restoring the competition of the cultural bonds and at transforming Internet into media of mass, which goes exactly against what it is necessary to make ». One will read with interest the report/ratio of the FING : Distribution of contents on Internet - Comments on the project of tax on the upload of Michel Gensollen, Laurent Gille, Marc Torturer, Nicolas Curien, April 2004, p. 38.

* ²⁶⁸ Guillaume Gomis, the Communities Peer-to-Peer and having right: peace by the legal license?, April 2, 2004, 5p. www.juriscom.net

* ²⁶⁹ Jeremy Rifkin in the Age of the access : the revolution of the new economy., the Discovery, 2000, 395p.

* ²⁷⁰ Distribution of contents on Internet - Comments on the project of tax on the upload of Michel Gensollen, Laurent Gille, Marc Torturer, Nicolas Curien, April 2004, p. 34 and following for the development of the sales leaflet and where the possible advanced ones.

* ²⁷¹ John Barrett, DIGITAL Music: Market, Services and Consumers, Parks Ace, 4Q 2003