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French anti-iTunes law is 'unconstitutional'

Law to be radically changed or rewritten

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The controversial French law which would have forced Apple to make music from its iTunes online shop playable on any device has been rejected by the French Constitutional Council. The whole law may have to be rewritten.

Both houses of the French parliament, the Senate and the National Assembly, last month passed copyright legislation which has severe implications for Apple. The law sought to force online shops to sell music that would play on any device and devices that played music from any other shop.

Currently, music bought at Apple's iTunes shop can only be played on that company's iPod player. The French law sought to change that, but was modified as it passed through parliament to enable Apple to bypass its demands with the permission of the music copyright holder.

Now, the law may be changed radically by the Constitutional Council or might have to be rewritten and re-passed by parliament altogether.

The Constitutional Council reviews all laws after they have been passed to ensure that they do not conflict with the French constitution. One of the protections afforded by the constitution is a protection of property, and it was on this basis that the council rejected some aspects of the law.

A 12 page legal finding was published by the council late last week and it referred principally to the 1789 Declaration on Human Rights, part of which protects property. The document said any companies forced to make music playable on any device should receive compensation because the firm would be sharing copy protection technology it had built itself.

The constitutional review did not throw out the principle of enforced interoperability, though. Apple may still have to allow others some access to its iTunes system.

"It is good news for Apple because they receive monetary compensation, but much bigger bad news if it forces them to license iTunes," Jean-Baptiste Soufron of the Association of Audionautes told the New York Times. The association opposes copy restrictions.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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