I finally got time to write my opinion on the disappointing news that Sir Tim Berners-Lee was endorsing EME. The comment is still in moderation, so I thought I post it also here.

W3C is planing to vote EME, tomorrow, 13 April, which, if approved, will flood the Web with DRMed content. The Open Rights Group created an easy way for all of us to write both to Sir Tim Berners-Lee and W3C. Go there and say no to DRM.

My comment:

Dear Sir Tim Berners-Lee,

After reading and thinking for quite some time about this text of yours, I decided to comment here to tell you not only that I would like to ask you to reconsider your position, but also to be sure that if you don’t, at least you know exactly the context where you’re deciding this.

The reason why I think there’s a possibility that you don’t know exactly the context of this, is that in this article you talk about DRM as if it was a bother, which it is, but that’s not the real problem with the DRM.

The problem with DRM is that it prevents users from exercising citizens’ fundamental rights/human rights.

So when you’re making it easier for some companies to use DRM on the Web, you’re actually helping these companies to stop citizens from exercising their fundamental rights/human rights.

To understand this, we need to understand what copyright is, so bear with me.

*The Context*

Copyright is an exclusive right. This means that only the author can use his work and only the author can authorise others to use his work. This is the right we give to authors, by default.

Lawmakers also decided they couldn’t maintain copyright only like this, because in that case copyright would kill fundamental rights/human rights of all the other citizens.

Example: Imagine you wanted to use an excerpt of a copyrighted work to give your opinion, or to discuss it, or to criticise it, or to correct an information. You would have to ask rightholders for permission. And they could tell you that if you wanted use an excerpt of their work to say it was wrong, for example, they wouldn’t give you their permission. They could deny their permission, whatever the case. So, you couldn’t exercise your right to freedom of expression.

So, to guarantee all the citizens’ fundamental rights/human rights, lawmakers decided to create exceptions to copyright:

a) They created an exception to copyright that allows you to use excerpts of a work to give your opinion, to make an argument, to correct something, to criticise, to make a parody, etc. in order to guarantee your fundamental/human right to freedom of expression;

b) They created an exception to copyright that allows you to use excerpts of a work to teach, learn and do scientific research in order to guarantee your fundamental/human right to education;

c) They created an exception for media in order to guarantee the fundamental right to freedom of information;

d) They created an exception for libraries and other heritage institutions, that otherwise couldn’t exist, to guarantee your fundamental right to access your own heritage and culture;

e) They also created other exceptions, you can read about them in the European Directive of Copyright, article 5 (in your case this is Fair Use, it’s not exactly the same thing, but it has same purpose).

*What has DRM to do with this?*

When lawmakers were convinced to give legal protection to DRM, they did it in a “total” way, meaning that:

1) if you circumvent the DRM to do file-sharing, which is illegal, the circumvention of DRM is also illegal;

2) if you circumvent the DRM to do one of the copyright exceptions (to use an excerpt to teach or criticise, for example), which are legal, the circumvention of DRM is still illegal.

The problem with the second situation is that, in the case of DRMed digital works there’s no way you can do any of the copyright exceptions without breaking the DRM. And you can’t break DRM: you can go to prison.

Doesn’t matter if you bought the book or the film, doesn’t matter if you want to make a legal use. If you break DRM, even in these legal cases, you can go to prison. That’s what the law says.

We have these rights, they are fundamental rights/human rights, but if the work has DRM we can’t exercise those rights.

*What are you and W3C really doing?*

So, when you endorse EME, you’re making it easier for those companies to flood the Web with DRM, which actually means you’re helping those companies to prevent citizens from exercising their fundamental rights/human rights.

You argue that you can’t change the law. This is actually an argument to not endorse EME.

You’re doing something that you know it stops citizens from exercising their fundamental rights. Then you tell us you can’t change this and you’re doing it anyway. Well, if you can’t change the law, you can’t guarantee citizens’ human rights, so you should not make an action that helps to kill these rights.

*What can you do?*

You could solve this in a very simple way. You only have to tell those W3C members that want to push EME forward that right now the law does not guarantee citizens’ fundamental rights (AKA Copyright Exceptions) when works have DRM, so W3C should put EME on hold.

You can even tell them that if and when the law changes to guarantee citizens’ fundamental rights, then W3C can work on EME again.

And they have an advantage over you, because you can’t change the law, but they can. I was going through the W3C Members’ list and found that W3C has as members the most powerful associations and companies, both from rightholders side and companies that use/make DRM side.

You know, the ones that convinced politicians to make this DRM law and the ones that can easily convince politicians to correct the law.

EME has nothing to do with technology, it’s about fundamental/human rights of real people, with real lives, in a real world.

If you feel you owe us an explanation, this is the one we need: why are you helping associations and companies to stop all of us from exercising our fundamental rights?