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

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

At the time, the American branch of the ACM, an association of computer scientists founded in 1947, wrote to the senator proposing the law:

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

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

Notes

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

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

Is assimilated to a crime of counterfeiting:

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

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

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

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

LocalWords:  VU DADVSI HTTP SSH Vivendi Sirinelli CSPLA SSSCA CBDTPA USACM Sen
LocalWords:  Hollings