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Three Strikes Law Against P2P in France

“A Little Courteline, a Little Kafka and a Lot of Alfred Jarry.”*

Having spent some time in France recently, my attention was inevitably drawn towards the new measures proposed to stop filesharing. Whatever form the system eventually takes will be at least a template for laws elsewhere. Two years ago the content industry believed that the basis for such a law could be drawn from the text of the EU  Directive on Electronic Commerce. They argued that the safe-harbour protection for copyright liability provided to information services therein was premised on the drawing up of a ‘best practices’ code which ought include clamping down on unauthorised transfers. This theory did not gain any momentum. Lucky then that the Sarkozy administration sought to make their dream a reality…

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Two years after it became the industry’s solution of choice to the inability to prevent file-sharing, legislation on the ‘three-strikes’ law or ‘graduated response’ measures is now being debated in the French Parliament under emergency procedure. The final text will be determined by a Commission empowered to pick and choose between amendments. In addition to sanctioning non-conformist users, the law mandates experimentation with systems for content recognition and filtering.

The Loi Creation et Internet, commonly referred to as ‘HADOPI’ after the administrative authority it will create (Haute autorité pour la diffusion des oeuvres et la protection des droits sur internet),  originated in a report overseen by Denis Olivennes, then CEO of FNAC – France’s major online and high-street retailer of books, music and DVDs. Author of the elegantly titled “Free is Theft: When Piracy Kills Culture.”(La gratuité, c’est le vol : Quand le piratage tue la culture, 2007 ), M. Olivennes, something of a Socialist Party mandarin, is now editor of the Nouvel Observateur.

This law amends the 2006 DADVSI legislation which provided punishments for copyright infringement of up to 300,000 euro in fines and three years in jail – sanctions never enforced. That text was also controversial for its provisions relative to DRM, whose popularity one notices is in distinct decline, at least in the music industry.

Filmmakers Big Up the Law!

Proponents of the law, and there are many amongst the grandees of French politics and culture, claim that the film and audiovisual industry is in peril – a tsunami in the words of culture minister Christine Albanel – a thesis perhaps unproven given that cinema visits increased by 2.5% last year in France (6.5% according to other sources) and DVD sales rose in several quarters.

According to ‘industry research’ 45% of french internet users download unauthorized copies daily [1], and the anti-piracy organization ALPA claim that the result is 450,000 films downloaded illegally each day (2). Director Luc Besson thought the figure was 500,000 daily and announced in Le Monde that watching pirated movies was now recognised as a crime by everyone, ‘what a bad image’ he mourned ‘for the country of the Rights of Man’ (!). He went on to demand the extension of the offensive to any company ‘complicit’ in the existence of sites streaming films which he compared with drug dealers; hosting services, advertisers, the lot of them should be pursued (3). Beemotion, Canadian-based french language site, and target of his delirious jeremiad, was closed within days. So much for the wild west of the internet.

Correlation or Causation?

But to examine one example studied in the anti-piracy association’s research, Bienvenue chez les Ch’tis, – purportedly downloaded 620,000 times each month between February and June last year – the causal relationship between ‘piracy’ and falls in cinema revenues doesn’t quite hold water; 20 million cinema-goers stumped up for tickets,  2 million copies sold on DVD within two weeks of its release – in fact it’s the most successful French film in history.

Nonetheless, several film-makers (Tavernier, Corneau and others) have rallied around the law, taking umbrage at Jacques Attali‘s claim that the law was a case of artists being manipulated by the media conglomerates, was ‘scandalous and ridiculous’ in content, and that artists ought to seize the chance to implement a favorable version of the content flatrate.

Musicians in the Fray

But as usual the debate is more spirited and fractious in the music sphere, and perhaps… confused. Cindy Sander, winner of TV talent show, made her single available on the net in her own words ‘for illegal download’ (but what does she mean!) prior to winning and signing with a major. She now thinks that each of those downloads is equivalent to a lost sale, and has appealed to her fans to ‘stop downloading music, you’re killing us!’ (4). One could have been forginven for thinking that the publicity might have helped her build a reputation…

Anyway, other voices are out there as well. Gary Greu, frontman of Marseille’s most popular band Massilia Sound System,  on being asked if he did not rely upon the money from music sales ‘to eat’ responded:
“Money?… every time we sell a CD I earn 15 cents, so if we sell 30,000 I’ll leave it to you to do the figures. I can give away my tunes, it’s not with that that I eat! Universal, Carrefour, FNAC, they eat through that. We just get ripped off and have to find other means to live from rather than record sales. We do concerts.”

He goes on, “downloading helps us, it gets a lot more people to our gigs. When i was young, I had just 15 pieces of vinyl in all, if I could have downloaded it wouldn’t have been so annoying!” Although he regrets how MP3s sound ‘they have no frequencies, high or low’ and he predicts indigestion “you can get everything in one go, but with culture you needs proceed progressively”. (5)

Substance of the Text as Proposed

Under the proposals, internet users will be disconnected should they fail in their ‘obligation to ensure that an internet connection is not used for the purposes of reproducing, displaying, making available or communicating to the public works or objects protected by copyright or by a neighboring right without the authorization of the rights-holder.’ Rightsholders will be able to deliver the IP addresses of offending users to the HADOPI, who will identify them and then send a warning letter. In  case of recurrence, another letter will be sent, and on the third occasion the internet connection will be disconnected. Suspension of service is foreseen as a temporary measure – two to three weeks according to the Minister (6) .

Problems

This inadequacy of legal oversight may bring the law into conflict with the telecoms package winding it way through the EU  should it include an amendment stating that users’ rights cannot be prejudiced without a legal decision, a provision overwhelmingly supported in EU Parliament in September, rejected France at the European Council,  and which will be revisited in April. This position was recently supported by the conclusions of the Lambrindis Report issued by the LIBE Committee of the European Parliament in February.

The Authority charged with operating the scheme was initially budgeted at 6.7 million euros, based partially on an estimate of ISP costs in cooperating (they agreed to the plan providing they did not have to pay it) of between 2-3 million euros, but apparently the actual figure will be more like 10 million per provider (7).

HADOPI itself is shaping up to be a government quango with a close ear to industry. Amendments to include user representatives were rejected, as was another barring former employees from the music industry until five years after terminating their employment.

Criticism

The key premise of the law – that piracy is responsible for falls in sales – has also come under attack from, amongst others, the Consumer Association Que Choisir (UFC) and the French Data Protection Agency (CNIL).

UFC  have pressed for resolution of the problem through a ‘creative contribution’ (8) which would see artists receive a cut of advertising revenue on sites distributing their works – amendments were moved by the Socialist Party-  and a system of revenue-sharing for streaming services inspired by that applied to radio, seen as fairer to artists than present arrangements governing CD sales.

Analysts appear to have no expectation that this reform will eliminate piracy, but rather that its purpose is function both as pedagogical intervention and as support for the introduction of legal services. Such packages could follow the example of Nokia where a hardware provider bundles music with its phones (whose cost is built into the phone itself) and there is talk of Orange offering analogous packages.
Given the scale of Sarkozy’s majority, and the support for the law by socialist party senators and former minister Jack Lang, the bills passage will not be prevented by a division in party groups, but there is division within the governing UMP.

In the last week several UMP members have proposed suspending the introduction of disconnections until 2011, and replacing them by  fines of 38 euros per session/work (9). Minister for Digital Economy Nathalie Kosciusko-Morize appears unconvinced that sanctions are a relevant path to pursue at all, and has described the current lack of alternative legal services as prehistoric’ (10).

In a blunter tones the Quadrature du Net campaign, establishes to oppose the three strikes proposal, dismisses the law as a ‘bad answer to a fake problem.’

Notes

  • Christain Paul’s description, Socialist Party Opponent of the bill.
  • To see my more recent posts on Hadopi, click here.

    (1) http://www.metrofrance.com/x/metro/2009/03/08/73ksM3kPyfi0s/index.xml Back to post 1

    (2) http://www.alpa.asso.fr/, the reserach was carried out by Thompson and Advestigo, and claimed that this number constituted only 40% of the requests made; 60% of attempts to download were unsuccessful. In any industry figures are useful for entertainment purposes only.

    (3)http://www.lemonde.fr/archives/article/2009/02/14/halte-au-piratage-a-grande-echelle-via-internet-par-luc-besson_1155431_0.html
    (4) http://cindysander.m6blog.fr/archive/2008/06/24/les-reponses-a-vos-questions.html

    (5) http://www.laprovence.com/articles/2009/03/30/772758-Region-Telechargement-illegal-acheter-un-CD-c-est-devenu-comme-aller-a-la-messe.php

    (6) http://www.rmc.fr/edito/info/73040/albanel-le-piratage-un-tsunami-dans-lindustrie-musicale/

    (7) http://www.liberation.fr/medias/0101553190-une-loi-deconnectee-de-la-realite
    (8) For further detail on this french inflection of the content flatrate see the book by Philippe Aigrain, http://paigrain.debatpublic.net/?page_id=171, In substance similar to the “Global License’ proposed during the Dadvsi debates, it would require payment by users of a monthly fee on top of their bandwidth bill, to be shared amongst artists; those users would then be allowed  to exchange files as they please. http://paigrain.debatpublic.net/?page_id=171

    (9) http://www.ecrans.fr/article6757,6757.html

    (10) http://www.lejdd.fr/cmc/media/200913/nkm-on-est-a-la-prehistoire_198014.html

    March 31, 2009 Posted by | /, enforcement, HADOPI, law, p2p | | 3 Comments

       

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