Me lo ero perso..

(sono soddisfazioni… è divenuta legge in corea del sud; in francia la chiede l’autorità delle comunicazioni, in canada hanno introdotto un principio analogo, in un altro paio di paesi ci stanno lavorando…)

Introduction

EFF is a global non-profit organization working to protect civil liberties in light of new technologies1. We have 44,650 individual members, 3000 of them based within the European Union. Our submission is in our role as a technical experts and consumer advocates in information services and products. Our domain knowledge includes both the effect on consumer rights and the market impact of manufacturer-controlled restrictions on computing device usage.

Among the cases we have worked on in this area, we have established in the United States the right of consumers to install software of their choice on their mobile devices, to engage in research to determine whether their devices are secure and respect their privacy, and to tinker with vehicle software to improve it and effectuate repairs. We have analysed the effects of Sony BMG’s insecure “rootkit”, software that was surreptitiously installed on personal computers, undermining the security and privacy of customers, ostensibly to prevent CD purchasers from infringing copyright and represented consumers in subsequent litigation2. We have testified before the U.S. Federal Trade Commission on the risks of locked-down computer systems3, and participated in United States, WIPO, and European Union deliberations regarding the regulation of anti-circumvention measures and the harm to competition and user rights that result from such technologies4.

We limit the scope of this short submission to Article 4 of the draft law, which governs the rights of users in terms of choice and selection of software available online and for uninstalling software and removing content from their devices that troubles them or simply is not of interest.

Device Neutrality

We commend the Italian authorities for considering device neutrality as a consumer protection issue, and thereby seeking to alleviate restrictions in the market for software for general purpose computing platforms.

Removing artificial limits on software and services use for these platforms would enhance the ability of owners of computers and smartphones to select third-party software in preference to those preferred by the original manufacturer, assist in preserving the environment by allowing these users to continue to usefully use technology beyond the period of support provided by the manufacturer, and assist users in securing their devices by receiving third-party security updates and/or adaptations. Users could additionally remove or replace manufacturer-provided software that has characteristics they do not need or want, such as privacy-invasive add-ons or programs that seek to lock users into one service (such as a particular telecom provider, or messaging or voice communication system).

Effect of Article 4 on Markets

Our understanding is that EU Member States have broad powers to introduce rules and measures for information goods and services, limited by Articles 34 and 35 of the Treaty on the Functioning of the European Union (TFEU), which prohibits qualitative restrictions or equivalent measures between Member States.

We believe, through our understanding of the underlying technology, that Article 4 would not create such a qualitative restriction.

Technology platforms, as described by the regulation, are built as general purpose computers, and are by default capable of running all software designed for that platform. Manufacturers of such platforms can place restrictions on software that may be installed by the end-user, and also include their own software on the same platform. Platform owners can, and do, place contractual requirements and require fees of third party software creators before permitting them similar access to the market in application software created by these platforms5.

Disabling these restrictions is a matter of removing a limitation, rather than adding a new feature.

Manufacturers have the capability to remove these limitations, and offer them to select customers. For instance, developers who Apple permits to create software for restricted smartphones such as Apple iPhones are already granted the capability of installing their own software onto a limited set of devices for testing purposes6.

Android smartphones whose bootloaders are “locked” so that only manufacturer-approved operating systems may be loaded, have methods, official or not, for unlocking and opening the device for third-party software. A broad market exists for third-party software for these unlocked phones, including software to make backups, improve battery life, and alter privacy settings.7

To comply with the proposed regulation, manufacturers would not be restricted from the import or export of devices between Member States. They would be required, however, to offer such “unlocking” or “sideloading” services by request within Italy, rather than establishing contractual or technical limits on who can advantage of this feature. In other words, they would have to undo an imposed limitation and remove barriers to a market, not add a new technical feature.

The benefit of removing these limitations is comparable to the neutrality requirements of the remainder of the bill: companies in a position of dominance in one sector (manufacturers of hardware) would not be able to place discriminatory limitations on trade or communications in another market (platform software and services).

Conclusion

To the extent that this interacts with European Union’s concern in ensuring a better functioning customs union, the bill’s results would be positive. The bill would allow the freer movement of goods and services, by creating new markets in Italy for software created within all Member States, and allowing the free movement of such software and services — which might otherwise be restricted by manufacturer-imposed limits — between the States.

Pensa che c’era stato chi, in Italia,  aveva scritto ” E’ ben vero che la questione della neutralità della rete ha connessione con una serie di altre questioni di grande rilevanza e delicatezza che attengono ai diritti fondamentali alla riservatezza dei propri dati, alla libertà personale e di informazione, nonché alla correttezza dei meccanismi democratici. Ma nessuna di queste questioni è affrontata e tanto meno risolta dal d.d.l. ”

Ho perso la battaglia, ma nulla è più irresistibile di una idea il cui tempo sia giunto. l’onda è solo all’inizio..