I am happy to see that this last weekend there has been much discussion about the on-going DRM-discussions in W3C. One commentator argues that the W3C is anyway not very important and that therefore actors like Mozilla don't need to leverage any influence over their standard discussions. At Ars Technica it is written that the DRM-standard at W3C will not be worse than flashplayer, for instance, and that therefore it doesn't matter.

The idea seems to be that it doesn't mean any harm to standardize at W3C. I would argue, because of the W3C patent pools, that this is wrong. Anti-trust authorities in both the EU and the US are increasingly looking at anti-competitive uses of patent licenses and other licenses, because especially in high-end technologies like electronics and software it's leading to a lot of problems. In the EU, we additionally have the Microsoft browser case which establishes that a de facto standard can be equally abused as an adopted formal standard. The W3C standardisation process sets up a patent pool which is free for everyone in the world [was corrected on this point, but it makes an even more important difference for the anti-trust, I guess] all the W3C members. A non-enforcement pact. That makes W3C very resilient to anti-trust investigations, which would not be the case if a DRM standard was adopted outside of the W3C as a de facto standard. If one does not believe that DRM is conducive to online innovation, and if one does not believe that Netflix is the pinnacle of God's creation, one may not want to provide them with that out.

Especially large commercial interests, including Google, Netflix and Microsoft are highly aware of this. Those who were irritated with Microsoft's behaviour in standard organisations in the late 1990s may want to seriously consider if it's more OK to do the same thing just because it's one decade later.

I've spent the last two weeks interfacing a lot with the Mozilla developer community. I got to attend the Brussels session on DRM on Sunday October 6 at #MozSummit, and I had a nice teleconference with a legal counsel from California on Friday October 11.

My argument is the same as the one I have raised at the ICT multi-stakeholder group at the European Commission June: technology can be political and we don't want to standardise behaviours and norms that we are not socially and politically ready or willing to accept. For me the open web and the internet are tools that we use to express democratic values, political discourse, parody, use and sharing of culture - DRM does not fit in this image because it is made not to do that.

For instance Cory Doctorow has raised the argument of DRM additionally stopping innovation: it seems to me that when one particular business model gets codified in a standard, that will lead to problems for entrepreneurs who do things differently. This is an extension of the problems we have with copyrights and neighbouring, where the legislator decided many years ago on a particular business model which has turned out not to be so useful as time passes.

But hearing the Californian Mozilla people, and also reading the Ars Technica article, I am starting to wonder if this is not actually also a problem between the US and the EU: the Mozilla people from California were not aware that Netflix does not provide services in all of the European Union. They are afraid of losing the Netflix customer base in the US if they don't implement the EME standard, and if they don't they feel that Google, Microsoft and Apple anyway will. However, in Europe Netflix is only launched in a highly limited number of member states. In the countries where Netflix has launched, normally they have strong competition from domestic streaming services.

In the US there is no strong distinction (as I understand it) between broadcasting rights and copyrights or neighbouring rights. In Europe, these three rights are not only legally distinct but also separate per member state. So Netflix, which normally is not in possession of copyrights for the works they stream, instead get covered by broadcasting rights. But the copyrights to be licensed, and the resulting broadcasting rights, will be legally unique per member state and in the European Union particularly the member state specific broadcasting rights are covered by special terms that linger on our markets since the television cross-border liberalisation of the early 1990s. In Europe one is allowed, as a commercial and as a non-commercial consumer, to transfer a broadcasting right of someone else from one country to another. In the EU, therefore, there may be legal changes required before Netflix can use the EME standard in the envisaged way. Netflix appears to have started to lobby the Swedish government - other EU member states I don't know. It's only relevant in this case to understand that Sweden is not the European Union, but one out of 28 member states all of whom have different legislations in this area.

There are additional problems with standardising here: the standard will spread to other media, like newspapers, digital libraries, audio files, and so forth. This is obvious. The browser will turn from being an open space where we can find and easily use information, to a place where actually end-users end up being quite controlled, especially by large commercial interests. This is largely unconducive to ongoing efforts by public broadcasters, newspapers, archives and educational institutions to create more open access to the cultural heritage of the European Union, but there would be similar setbacks in the US.

We are organising a discussion on the issue of DRM in HTML5 in the European Parliament on Tuesday October 15th (in two days) at CET 11:00-13:00. Alas, we've had many last minute cancellations, primarily from those who are involved in making the DRM standard which shows just how contentious this issue is. We will be trying to organize good streaming, and a recording of the conversation for later view and this will be tweeted through the @exile6e account. For us, it is important to distinguish between the role of a legislator and democratic governance and CEO Jeff of the W3C. Ultimately, I was elected to represent and make decisions in accordance with the general interest of the European public. The W3C does not carry this legitimacy.