Breaking news: the Sirinelli Commission Report
The final version of this report should be ratified by the Sirinelli Commission on November 18th and adopted during the next plenary session of the Conseil Supérieur de la Propriété Littéraire et Artistique CSPLA, High Council of Literary and Artistic Property) on December 7th. The Sirinelli Commission had to ponder, among other things the issues surrounding the possible responsibility of some intermediary parties who would incite counterfeiting in either one of the following ways: providing means, giving information on means and methods, or advocating. Among other things, this report aims to support the most controversial points of the DADVSI bill and the business majors' amendments.
The document itself: http://eucd.info/documents/rapport-sirinelli.pdf.
The contents of the report can be compared to those of the green and white books published in 1994 and 1996 by the Clinton Administration. Their explicit goal was to protect the American intellectual property abroad in the electronic world. 
Just like the Clinton Administration reports, the Sirinelli report does not envision the future of the authors' rights system without ever-present exclusive rights and legal protections of technical measures. Its recommendations: 1/ ban all software non implementing schemes tracking and controlling private uses 2/ make liable, both in civil and penal courts, anyone providing means to facilitate unauthorised electronic transmissions of copies of works—complete or partial. It interprets jurisprudence quite radically, seeks no compromise or balance, and is biased towards a handful of big companies. It ignores the facts that culture is not merchandises, the public has rights, and the authors' rights should not be diverted to hamper progress and innovation.
The following text, written by a hundred law professors to vice-president Al Gore in an open letter memorandum regarding the 1995 white book, therefore fits perfectly the Sirinelli report:
The White Paper says it is just a "minor readjustment" of the law. In fact, it is a radical measure which has negative implications for public, journalistic and scholarly access to information, for free speech and for privacy. In economic terms, the Report's recommendations seem to be designed around the imagined needs of the largest current right holders, with a corresponding negative effect on future innovation and competition. Finally, the Report's inversion of fair use doctrine and its maximalist stance toward intellectual property rights seem to presage a country divided among information "haves" and "have-nots" in which the Clinton Administration's promise of universal access would be lost.
The article "The Exclusive Right to Read", written by Jessica Litman wrote in 1994 and regarding the green book, also seems directly inspired by the Sirinelli report:
The Draft Report comes down firmly on the side of increased rights for copyright owners and it endorses the goal of enhanced copyright protection without acknowledging any countervailing concerns. Because it is an advocacy document, it at times misrepresents the state of current law. It gives voice to only one side of complicated policy debates. In some cases, the Report identifies a particular alternative as more desirable because it gives copyright owners rights subject to fewer exceptions. The Report's drafters apparently did not perceive objectivity or balance to be their job. 
 EUCD.INFO, Time-line of the DADVSI bill, 2005 (French) http://eucd.info/index.php?2005/11/14/173-chronologie  Schools, Political Debate, Privacy Would Suffer Under White House's Radical Proposal on Intellectual Property, Say 100+ Law Professors, 1995 http://eucd.info/index.php?2003/12/31/127-lettre-ouverte-des-cent  J. Litman, The Exclusive Right to Read, Cardozo & Arts Ent. LJ 29, 1994. http://www.msen.com/~litman/read.htm
Some commented parts of the Sirinelli Report will unveil the goals of the big players in the records, movies and proprietary software industries.
- p 17 : Regarding P2P software publishers' responsibility
- p 19 : Regarding Internet Access Providers' responsibility
- p19 : Regarding StationRipper
- p21 : Regarding e-mail exchanges
- p32 : Regarding filtering
- p33 : Regarding the compulsory crypting of audio streams
- p 36 : Regarding DRMS
''All in all, regarding the responsibility of publishers of P2P software used to infringe counterfeiting laws, it appears the commission:
- unanimously believes they are liable in civil courts for fault as stated in the Civil Code, article 1382
- believes with an overwhelming majority they are also penally liable under the charges of counterfeiting complicity and for having made profit of counterfeiting activities.
The Commission therefore considered the conditions in which illicit P2P software publishers were legally liable. Even though, basing itself on current texts, it concluded it was possible for those parties to be held liable, it also noticed it would probably be better to adopt a specific text (see the opinion) to sue illicit P2P software publishers. Rationale: this would be clearer, more didactical, and would avoid to have to wait for the results of a long dispute to be able at last to set up the means of an ambitious on-line distribution of works policy.''
Decoding: this excerpt supports the VU amendment. Follow the link to know more about it.
The LCEN no-responsibility regime, following up the June 20th, 2000 European Community directive, does not necessarily mean the Internet Access Providers can remain totally passive. On the opposite, they could have to react facing a legal injunction demanding them to put an end to the trouble caused by unauthorised contents file exchanges using illicit software. The only open question is: what means to use to reach this goal?
Decoding: this excerpt aims at letting believe the current law authorises the implementation of large scale filtering means over P2P networks and that the issue is not a legal one, but merely an economical or technical one. This is not true. As the Constitutional Council recalled, the LCEN article the Commission bases itself upon only deals with racist, xenophobic and pedo-pornographic contents. Furthermore, the act of interrupting communications, be they private or not, infringes the freedom of communication, protected by the Constitution and the European Convention preserving human rights and fundamental freedoms.
Actually, the analysis already performed by the Commission with respect to P2P could directly be transposed to StationRipper. Using such a piece of software is just a means to get copies of works impairing their normal means of exploitation: purchase of physical media or purchase online on legal sites.
In this course of thought, we must therefore reject the following idea, lightly emitted by some, who claim that using StationRipper can be compared to making private copies (translator's note: private copying is French Intellectual Property Code exception on a tape recorder. This conclusion has three consequences:
- the technical measures cannot be blamed with forbidding private copying, since this is not private copying;
- Internet users using such a piece of software could be liable;
- StationRipper creators' responsibility is not similar to that of P2P software publishers. They could more easily be sued since the argument pointing out there are legitimate uses of P2P, sometimes used, cannot be transposed to StationRipper. It cannot be denied that StationRipper is a piece of software designed to copy works in conditions excluding private copying.
As a matter of fact, the representatives of phonographic contents producers suggest the High Council of audiovisual (Conseil Supérieur de l'Audiovisuel, CSA) implements this solution with a recommendation, just like its American equivalent did. From a legal point of view, the protection could be set up within the framework of a modification of law number 86-1067 passed on September 30th and modified since, dealing with the freedom of communication — not within the framework of the Intellectual Property Code. From a technical point of view, if would occult the URLs of the webradios or use flexible DRMs or "broadcast flags".
It would therefore be a nice thing for the authorities to pass the needed laws and regulations to secure the setup of measures preventing unauthorised digital eavesdropping of digital audio streams. This initiative would rely on the following idea: "better safe than sorry". Should the technical solution succeed, the number of trials would diminish and we would avoid the unhappy solution consisting in suing Internet users possibly deceived by appearances.
Decoding: this exception supports the MAJORS amendment. Follow the link to know more about it.
The members of the commission agree there is a chance P2P users turn to P2Mail, above all as a reaction to the lawsuits that got started. However, if this phenomenon may worry, the legal analysis looks very simple: as long as the copyist and the user are different people, the exception for private copying cannot apply.
Internet Access Providers representatives reminded the Commission that Access or Messenging Providers do not peek at the contents of electronic mails, except in some rare cases in the context of legal procedures. E-mail exchanges are indeed covered by the secrecy of private correspondence. It is also noted than investigators dealing with counterfeiting cannot pursue their investigations when Internet users swap from P2P to MSN. This public law based presentation, however exact, changes nothing in terms of artistic and literary property analysis. In this field, the objection presented deals more with proof than with the subject being discussed.
Debate switched then to the ways of controlling this kind of e-mail exchanges without as much ignoring the secrecy of correspondence. Debate notably mentioned the idea of a marker that would easily identify music exchange taking place by mail, in such a way that such a message would raise an alarm, just like a metal detector ring. Furthermore, the representatives of phonographic contents producers believe there are sufficiently apparent pieces of information enabling to detect illicit exchanges. Making a parallel with the material world, it has been observed that one can get information about the contents of an envelope without opening it. To which it has been objected that should such information exist, the filtering thus performed would be at best coarse and partial. It has also be noted that all music files exchanged on the Internet are not always pirated. It would therefore be necessary to use "habilitated scrutators".
Decoding: here we find again, between the lines, the will to oblige all software creators to incorporate a marker so that filtering schemes may listen, analyse and should the necessity, occur, interrupt a private communication. It must also be noted that this is not the first time the CSPLA makes a request to have a general eavesdropping on all Internet users private communications. As soon as June 2003, we could read the following in the opinion stated by the smoky commission "Artistic and Literary Property and individual liberties"
The High Council takes note of some reflections lead regarding the possibility to create a general system of digital fingerprinting making it possible to check whether the files exchanged on the network are authorised and to block illicit file exchanges whenever they travel through a server or a router. The Council believes such a system, when aiming to prevent the exchange of illicit data between Internet users, does not impede the secrecy of correspondence, as long as such files are openly available to the public. This system could therefore only be implemented after a legal framework is designed, guaranteeing that any action likely to infringe upon the freedom of communication and the secrecy of choice of computer programs are necessary and proportioned to the goal being pursued.
The experts noted several technologies pretend to reduce the piracy activity: filtering of protocols (Allot, Cisco P_Cube...), creating lures (eg. CoPeerRight), analysing contents (AudibleMagic), client side solutions (CyberPatrol, Cisco CSA). Those technologies are often rather sophisticated and able to adapt to the technological evolution of platforms. It therefore seems that the the exploding market of peer-to-peer applications is matched by several companies offering high level technological solutions. The present challenge is to experiment all the available tools in order to assert the extent to which they require international coordination and what the associated costs would be. The authors' rights holders are ready to ponder the question of the costs with Internet Access Providers. Debates regarding technical feasibility and efficiency are questions they will consider if they finance part of the system, since it is obvious they will abandon it if this does not work well enough.
Decoding: the suggestion goes as follows: "Let us apply experimentally a measure the European Commission called liberticide. Should this cost too much, we will abandon it..." Indeed, the footnote page 15 of the impact report of the E-Commerce Directive states that :
"In this context, it is important to note that reports and studies on the efficiency of blocking and filtering software seem to indicate that, at the current time, there do not exist technologies that cannot be circumvented and that make it possible to block or filter in a quite efficient way illicit and prejudicial information without blocking perfectly legal information, which would infringe upon freedom of expression."
It is the most efficient and perennial way to prevent eavesdropping software to work. However, this provision makes the assumption that the machines and software bound to collect the digital stream are equipped with functions to decode the audio stream. When broadcasting on Internet (simulcasting, Webcasting), several crypting/decoding tools are routinely available, notably «Secure Audio Path » (Microsoft) and «Secure X1 Recording Control » (Media Rights Technology). DRM-like solutions also exist for digital radio-broadcasting.
The experience collected abroad when setting up digital audio broadcasting showed that some publishers, notably public radio-broadcasters, did not systematically protect their signal. Given the little advanced state of digital audio broadcasting in France, phonogram producers consider it is relatively easy to implement, at national level, measures preventing unauthorised eavesdropping of digital audio streams. Those involve the passing of some bills (law adapting the "Authors' Rights" European directive) and/or some regulations (regulatory power of the CSA). In the framework of launching the digital radio (DAB), they suggest to consider systematically crypting the audio streams to prevent their unauthorised eavesdropping and, consequently, the receiving equipment will be provided with decrypting features. Besides, regarding broadcasting in the framework of the legal license of article L214-1 of the Intellectual Property Code ("Simulcasting"), it seems opportune to them to reserve this regime to the digital broadcasting of the radio programme under the condition that the broadcaster uses state-of-the-art technical measures to protect the digital audio stream from unauthorised eavesdropping. This condition would not be necessary for webcasting, since contracts with webcasters concluded within the framework of an exclusive right already take into account the setup of such protection measures.
Decoding: this exception supports the MAJORS amendment. Follow the link to know more about it.
The Commission, except the artists and performers' representatives, considers, to this day, the deployment of DRMs the only solution to come back to force the consumer to pay directly for the contents on digital networks and to maintain exclusive rights.
Decoding: it is interesting to note the opinion of representatives of consumers and families, as well as that of the artists and performers, who all took part in the Commission, is not here taken into account.