"...cette anomalie restreint son utilisation et constitue un vice caché au sens de l'Article 1641 du Code civil."Which, being translated, is where a high court ruling slaps the record industry straight across the face for copy protecting CDs, telling it "Stop that! Or tell the truth." This judgement against EMI France came in two cases brought in summer before the Tribunal de Grande Instance in Nanterre, a Paris suburb, and spread a wave still unfurling through the media this side of "the pond".
EMI's release of a 'Best of' classy jazz-blues-rock singer Liane Foly was the first CD to land the music giant in trouble in July ('EMI condamné...'; 01net, Fr).
Consumers' associations CLCV (Consommation, logement et cadre de vie - Consumption, housing, lifestyle) and UFC-Que Choisir put the boot in again in September (Juriscom.net - "the law and information technology"; Fr), this time over Alain Souchon's 'J'veux du Live' (RTL2; Fr).
In both cases, EMI was ordered to repay the cost of the flawed CD, with damages and interest in the first, and henceforth explicitly to mention on discs: "Attention: this cannot be read on all players and autoradios".
The "hidden vice" or defect in such CDs referred to the consumers' groups by hundreds of purchasers was the manufacturer's manifest breach of the Civil Code in failing to sell them with the mention that they would not work in your car stereo, computer and certain other players, let alone copied.
The story was taken up then by The Register, which also, with characteristic snottiness, saw fit to describe the offending Souchon CD as "to non-French ears, offensive".
However, the Paris High Court in October threw out (01.net, Fr) similar cases against BMG and Sony, ruling that the plaintiffs had failed to bring enough evidence of insufficient warning that the incriminated articles were copy-protected.
This showdown is far from finished.
Consumers' associations rightly consider, with some compelling arguments, that French courts have yet to determine whether copy protection as such breaks the law. It is facile to conclude that the record companies are still winning the war because they have won a battle or two; they're running scared. Last week, an informed source working in a specialised music retail chain of stores told me, on condition of anonymity, that "some of the big firms have begun to stockpile unprotected copies of the CDs in case of further trouble with the courts".
I have yet to find a record company spokeperson ready to comment on this assertion, but I can believe it.
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