It happens that I have written before on Encrypted Media Extension in HTML5 - a digitial rights management (DRM) standard developed for the totality of the world's browsers inside World Wide Web Consortium (W3), a prominent privately ran standardisation consortium based in Paris.

Also I somewhat ironically note that 1,5 weeks after I presented my concerns with this particular standardisation process at the European Commission, the Swedish government proposes to create the legal base and support I felt was missing for the Netflix business model.

Copyright and content control is a messy legal field. In the EU we have 7 different directives that define various forms of legal control over how information can be distributed after it is publicized. They take the shape of broadcasting rights, copyrights, related rights, rental rights, resale rights, software copyrights, and a bunch of other rights.

For the online streaming sector, it is likely broadcast rights that apply. But private retransmission of broadcasts (non-commercial retransmission) is entirely legal. In the EU, sometimes even commercial retransmissions are legal, as was established by the Court of Justice of the European Union in the Murphy v Premier League C-408/05 case. This is because we have a free movement of services, that is one of the four founding principles of the European Union. In the case of C-408/05, one pub owner in London was within her right to retransmit a broadcast which Premier League had licensed for Greece.

A company like Netflix has no particular interest in keeping such flexibilities in the broadcasting rights. While the legal framework for restricting broadcasting rights across borders, or for end-consumers, doesn't exist, Netflix and Google try to wield enough technical influence that they don't have to wait until the lobbying is done for changing the particular circumstances that surround broadcasting rights. The problem for them will be if people start hacking or violating their EME standard after it is implemented - that would be the reason for still requiring some legal changes. 

A separate problem in the current W3 policies, pushed by Google and Netflix, is the establishment of very particular use-cases in technical standards. You /are/ allowed to quote, modify, save for your own use, et c the copyrighted content that has been broadcasted to you. The EME standard supposes that these things, which are allowed, shouldn't get to happen with the broadcasted content and so the legal freedoms and liberties of users with copyrighted content are watered down or removed by a technical solution. Normally, we suppose that technology helps us advance freedoms and uphold the law, not that technology makes legal norms in and of itself, or violates the present legal norms. We have the democratic processes and publicly elected representatives and a bunch of other systems for policy making in society because we have found through experience that public policy is best made that way. Trivially permitting the circumvention of important policy goals, such as the right to parody, political satire, adaption for visually impaired, remixing or quoting, in a technical standard organisation is not in the interest of either the policy maker or society.

If you want to download streamed content on your harddrive and watch it later, the EME standard presents further problems. Can you do this if the standard itself prohibits you from decrypting the content when it's on your hardware and you're not online to establish contact with the server which holds your private keys? By parallel with traditional broadcasts from TV stations to TV receivers in private households, we've actually always had the right to record TV broadcasts to watch them later. It is awkward if, in a web browser, we would codify for broadcasters widely dissimilar norms to those that apply for broadcasters that don't access viewers through a browser.

Last but not least, there was a treaty accepted in Marrakesh inside of the WIPO framework in this summer, 2013, which codified specifically that technological protection measures (TPMs) have to be made in such a way that it is legally possible to adapt works for visually impaired people. While this is a whole together different story from saying that in international law we don't accept that technologies remove the freedom to use culture codified in national legislations of most countries, it is certainly a step on the way.

My fear is that the W3C is technologically establishing a social framework in browsers which we legally are about to abandon or at least change. The browser is the users' primary tool of accessing the internet, so anything which is codified therein will be the de facto framework which establishes online interactions. We would not want this codification to fall too far outside of what we consider legally and socially acceptable. Yet the Encrypted Media Extension seems to push in that direction.

The least intelligent response that I have encountered so far to my concerns in this field is that technical people will be unwilling to wait for the legislator to fix the copyright problems "because that will take a lot of time". The reason that our democratic processes for society take a lot of time is that finding the right way to balance different interests in society is a lengthy process. We have opted out of technocracy, the system wherein those that believe they have the best solution can speedily impose it on everyone else, because it's not a good method of making policy. EME and DRM in HTML5 is a reflection of technocracy, an anti-democratic system, with a large social impact and legal implications.

So yes, while we are waiting for the copyright problems to be addressed politically for many years, and while that takes a lot of time, this by no means suggests that we should enforce copyright more strictly through technology than it would be enforced without technology. The flexibilities in the copyright framework are extremely important to preserve, and they are there for society, education, social interactions and culture to flourish.