La gestion des DRM en perspective

§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 ».

Figure 7: Wippit DRM^188(*)

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.

Figure 8 Wippit DRM restrictions^190(*)

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(*)

* ¹⁷⁵ iTunes, www.apple.com/itunes/

* ¹⁷⁶ BMG, www.bmg.com/

* ¹⁷⁷ Wippit, http://wippit.com/

* ¹⁷⁸ OD2, www.ondemanddistribution.com/fre/home/home.asp

* 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,

www.atelier.fr/article.php?artid=27119&catid=30

* ¹⁸⁰ Daniel Semaya, The Future off DIGITAL Rights Content Management for Distribution, May 30, 2003, p.7. www.cs.princeton.edu/ugprojects/listing.php?user=dsemaya&type=senior

* ¹⁸¹ www.apple.com/support/itunes/authorization.html

* ¹⁸² Ibid, p. 8.

* ¹⁸³ Steve Jobs, 20 May 2002, www.time.com/time/globalbusiness/printout/0,8816,237026,00.html

* ¹⁸⁴ November 26, 2003, www.transfert.net/a9627, November 22, 2003,

www.theregister.co.uk/content/4/34141.html

* ¹⁸⁵ Arnaud Devillard, BMG sells his music in peer-to-peer legal

01net, 17/03/2004, www.01net.com/article/236232.html

* 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

www.reuters.com/newsArticle.jhtml?type=internetNews&storyID=4738740

* ¹⁸⁸ http://wippit.com/about/

* ¹⁸⁹ Bill Rosenblatt, Two Major Labels Wippit, March 18, 2004,

www.drmwatch.com/ocr/article.php/3327821

* ¹⁹⁰ http://wippit.com/about/

* ¹⁹¹ Bill Rosenblatt, Integrating DRM with P2P Networks: Future Enabling the off Content Online Business Models, November 18, 2003 www.drmwatch.com/resources/whitepapers/article.php/3112631

* ¹⁹² Ibid, www.drmwatch.com/resources/whitepapers/article.php/11655_3112631_3

* ¹⁹³ Ibid

* ¹⁹⁴ Ibid

* ¹⁹⁵ (Nicolas Vermeys, Citizens Canadian, download in peace! 5/04/2004,

www.juriscom.net/actu/visu.php?ID=486 and www.fct-cf.gc.ca/bulletins/whatsnew/T-292-04.pdf). The Canadian Association of the Industry of the Disc (SHOUTED) interjeté call of this decision of judge Konrad Von Finckenstein (Guillaume Champeau, the SOCAN supports the call of SHOUTED, April 16, 2004, www.ratatium.com) and more recently, Sabrina Brandner, MP3: to download is not to pirate, according to the court of Haarlem, 20/05/2004, www.Juriscom.net

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