Michael Geist

My weekly Law Bytes column (Toronto Star version, homepage version) uses the recent French Parliament law involving interoperability and Apple's DRM as the basis for a discussion of governments that tinker with technology through regulation.  The law should be understood as a logical reaction to mounting consumer frustration with technological limitations on their purchases and a desire for balance in copyright. 

Although the French law may appear to be unique, many governments regularly tinker with technology through regulation.  For example, the Liberal government last year introduced "lawful access" legislation that would have required Internet service providers to dramatically overhaul their networks by inserting new surveillance technologies.  Similarly, the U.S. established "broadcast flag" requirements that would have mandated the inclusion of copy-controls within a wide range of electronic devices (a court struck the requirements down as unconstitutional).

Moreover, experience demonstrates that the private sector may not respond to consumer demands to offer compatible products.  The satellite radio market provides a recent example, with the two major providers – XM and Sirius – steadfastly refusing to offer a device that supports both services despite the fact that they have jointly developed just such a product.

With government intervention looming as a possibility and the private market unlikely to resolve compatibility concerns, what principles should regulators adopt to provide all stakeholders with greater certainty about the appropriate circumstances for lawmakers to tinker with technology?

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