I asked our crawler folks what the impact of the EME proposal could be to us, and what they came back with seems well reasoned but strongly negative to our mission.
I have posted the analysis below for the public to consider.
At your request we have assessed what the possible effects of the Encrypted Media Extensions (EME) as a W3C recommendation would be.
We believe it will be dangerous to the open web unless protections are put in place for those who engage in activities, such as archiving, that are threatened by the legal regime governing the standard.
One major issue is that people who bypass EME, even for legitimate reasons, have reason to fear retaliation under section 1201 of the US Digital Millennium Copyright Act, and laws like it around the world, such as Article 6 of the European Union Copyright Directive, which indiscriminately bar circumvention even for lawful purposes. Locking up standards-defined video streams with digital rights management (DRM) could put our archiving activities at serious risk. DRM, which imposes technological restrictions that control what users can do with digital media, is antithetical to the open web. Moreover, EME opens the possibility that DRM could spread to non-video content such as typography or images, which poses an even more existential threat. Web archiving and the Wayback Machine would suffer.
Archiving is not the only activity endangered by anti-circumvention laws and EME: from accessibility adaptation to security research to the kinds of legitimate innovative activities that you began your career with — inventing the first search engines — the normal course of the open, standards-defined internet is incompatible with the anti-circumvention regime that comes into play if the W3C publishes EME as a recommendation.
The Electronic Frontier Foundation has proposed a sensible and simple compromise: binding W3C members not to invoke anti-circumvention laws unless there is some other cause of action. This preserves the legitimate interests of rightsholders against those who trespass on their copyrights, trade secrets and contractual obligations, without turning the W3C standards process into a backdoor to creating new legal rights to prevent legitimate, vital activities.
Every organization involved in creating and preserving the open web is facing unprecedented challenges and pressures today. It is up to the guardians of the open web to meet those challenges with an unwavering commitment to our core principles: that the web must be free for anyone to write, to read, to connect to, to adapt, to archive and to preserve. As such, I recommend that we object to the publication of EME as a W3C specification without safeguarding these foundational principles of the open web.