Sci-fi Against Hadopi: Who Will Control the Future?

Science-fiction writers have also gotten involved in the debate on Hadopi. On Monday a wide swathe of the sci-fi world – writers, critics and publishers – expressed their opposition to the law, below is a full translation of their open letter to the public.

To see my more recent posts on Hadopi, click here.

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Who Will Control the Future?

We the people of science-fiction, writers, translators, illustrators, critics, commentators, essayists, bookshop-owners, bloggers, publishers and collection editors, must express through this text our opposition to the Creation and Internet law.

It would be a truism to state that science-fiction concerns itself with the future and that many of its participants have denounced the possible, even probable, pitfalls (dérives) of industrial and technological societies; George Orwell’s name comes immediately to one’s lips, but also that of John Brunner, Norman Spinrad, Michel Jeury, J.-G. Ballard, Frederik Pohl, Cyril M. Kornbluth, and many others besides.

Science-fiction can detect the seeds of these pitfalls in the present, because it is precisely from the present that possible futures emanate, and it is in the present that the world of tomorrow is decided every day.

The distrust of new technological developments and the changes which result, the fear of the future and the desire for control of a society obsessed with the discourse of security… all that has already been addressed in sci-fi, and if there’s one thing which it has taken into account it’s that the techno-sciences are the principal cause of change in modern societies. From such changes. in course or in germ-form, no-one can know the effects but we do know that erecting barriers or walls against them results only in seeing them fall one day, in a more or less brutal manner. So rather than forbidding, wisdom, but also realism, should spur us to allow free reign to the freedom to innovate and create. The future that we have to invent each day should not be based on fear, but on sharing and respect.

The Creation and Internet law, rejected by the National Assembly on the 9th of April last, will be presented again to our national representatives at the end of the month.

This law, which we are told will protect artists’ rights and copyright in general, seems to us a Trojan horse, deployed to try and establish control over the internet, and is thus a threat to freedom of expression in our country.

Artists, creators, all those cultural actors without whom that word would be emptied of meaning, are being instrumentalised for the benefit of a law which, we must remind everyone, contains measures to filter the net, install spyware on individuals machines, and suspend internet connections without the involvement of a judge on the basis of IP numbers (whose lack of reliability has long been established) collected by private companies, and the extension of measures initially conceived for police anti-terrorist activity to the sharing of files between individuals.

Whilst deeply attached to copyright, which represents the sole or principal source of income for many precarious intellectual workers in our ranks, we protest against those who brandish it incessantly to justify measures which, while technically unfeasible,  are certainly dangerous, and whose potential to erode our rights is only too obvious in the eyes of those of us whose daily work involves the scientific, political and social thought which is at the core of science-fiction.

Likewise, conscious of the interests and value of creative communities, we also protest against the danger that this law poses to the universe of culture distributed and shared under free licenses, which constitutes a wealth accessible to all.

The internet is not a chaos but rather a collective work, where no actor can demand a privileged position, and it is aberrant to legislate on practices born from 21st century technologies on the basis of schemas taken from 19th. Think about it.

Because the future is our trade.”

Signatories:

Joseph Altairac, essayiste, Jean-Pierre Andrevon, auteur, critique, essayiste, Andoryss, scénariste (BD), Ayerdhal, auteur, Raphaël Bardas, auteur, Stéphane Beauverger, auteur, Geneviève Beduneau, auteur, blogueuse, Ugo Bellagamba, auteur, essayiste, Jean-Luc Blary, éditeur, Pierre Bordage, auteur, scénariste, Michel Borderie, illustrateur, Bruno B. Bordier, auteur, Charlotte Bousquet, auteur, Georges Bormand, auteur, critique, Alexis Brun, éditeur, David Calvo, auteur,

Akerman, Branco, Deneuve et al Against Hadopi and Three Strikes!

Via a comment on the blog I learned that the letter translated below was not drafted by Paulo Branco the producer, but in fact by his son Juan Paulo Branco, who is also the maintainer of the blog Pour le Cinema (For the Cinema). Sorry Juan Paolo!

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Things are hotting up in France ahead of the reintroduction of the Internet and Creation Law  (HADOPI) in the French Parliament on April 29th. As I’ve described elsewhere several groups of musicians and filmmakers have made public pronouncements in support of the law. While there have been dissidents to the industry line throughout, a serious crack has opened up in the last week. Below I’ve translated the letter (French original here) drawn up by Juan Paulo Branco, and signed by over thirty figures from French cinema. Arthouse fans will be happy to see Chantal Akerman on the list, Eva Truffaut – who holds the rights to all her father’s films – documentary and narrative filmmakers, producers, casting directors and actors. One name stands out however, because it’s loaded with serious cultural capital, and that’s Catherine Deneuve. Ah, one more thing, another signatory is a certain Jean Sainati, whom you probably haven’t heard of: he was executive director of the ALPA ie the Antipiracy Board, from 1988 until 2002. Is the penny dropping yet?

Catherine Deneuve in 'Repulsion' (1965), by Roman Polanski.

The call came late, but hey, it came. Paulo Branco put the delay down to the time required to collect the signatories and veiled threats made to him by other members of the film industry. Serious stuff given that he’s no industry ingenue, having produced more than 200 movies for directors including Wim Wenders and Raoul Ruiz.

When the entertainment industry marshaled its troops for public display at the Odeon in Paris the parade was largely composed of aging songwriters. Note the looks on their faces. They have the support of some younger musicians as well, and Luc Besson and Bertrand Tavernier have been busy penning open letters in favour of the law, but the emergence of this schism internal to the cinema world will complicate the public debate significantly.

Unhappy entertainment industry members at the Odeon, Paris

Meanwhile Juan Paulo Branco has launched a blog around their call, and is collecting alternative proposals to Hadopi. Today’s contribution is from campaign group, La Quadrature du Net, titled “The necessary union between artists and internet users.” The same crowd who are coordinating an international campaign around the EU Telecoms Package. One imagines that the article must have caused some squeaky-bums moments in a few Parisian boardrooms.

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An Open Letter to Citizen Viewers (Spectateurs),

Here is the open letter through which the opposition movement of the cinema world against the Hadopi law has begun. It constitutes a first step in the struggle for a more just system which takes into account the interests of all: the battle has just begun.

Committed (engagé) artists and producers, throughout our careers we have dedicated ourselves to a different cinema, a cinema which is open and challenging.

You have brought life to our work, heralding, acknowledging or rejecting it. Throughout our careers, we have pursued the same ambition: to spread our work and share it with you. Throughout our careers, we have faced a thousand obstacles, be they technical, material or economic.

Today we have the luck to live through a digital revolution which will allow us, in the very near future, to remove a number of these obstacles and open our cinema to all.

Today some fear this revolution, and fear for their monopoly. The Internet and Creation Law responds to a legitimate anxiety, which we share: that of seeing works devalued and degraded through distribution on the internet.

However this law, which claims to position itself as defender of creation, merely establishes a punishment mechanism of dubious constitutionality and opaque functionality.

Fruit of a massive exercise in lobbying and based on the presumption of guild, the Internet and Creation Law creates HADOPI, a high authority controlled by the executive which will be able to cut off an internet user’s connection for an infinitely extendible period, with neither the slightest proof nor the possibility of legal recourse,

Worse, and contrary to what has been widely written, no legislative provision enacts the substitution of criminal and civil charges with this procedure, making a ‘dual punishment’ possible .

Just as the European Parliament has almost unanimously characterized access to the internet as a fundamental right for the third time in just a few months; as ‘graduated response’ model crumbles in the United States; and while the rest of world emphasizes the pursuit of commercial pirates, the French government persists in treating users, viewers, as immature children at the root of all the cinema industry’s problems.

Demagogic, technically unfeasible, doggedly ignorant of the new methods of downloading, and purely repressive, this law is also a missed opportunity. Providing no new form of remuneration for rightsholders, the Internet and Creation Law addresses neither the cinema in its diversity, nor the viewers. Constituting just one last vain attempt to eradicate piracy through punishment, without concerning itself with the creation of legal alternatives, affordable and openly accessible via internet, it responds to none of the challenges posed today by new technologies, even though a strong and creative response is required by the cinema industry and those bodies dedicated to the protection of rights.

We do not identify with this approach, and call for a change of mentality. Fear of the internet is a mistake that we can no longer allow ourselves to make. It is time to accept that we must adapt ourselves to this “new world”, where access to culture loses its discriminatory character, and stop striving to create a society of virtual surveillance where everyone feels monitored.

Be it through a system of compulsory license (license globale) or by through the development of a unified platform for the downloading of works without DRM at reasonable prices,  positive responses to this challenge are needed today, which measure up to the expectations of the audience. Now is the time for reinvention and amazement, rather than the introduction of the umpteenth repressive mechanism….

Conscious of the needs of rightsholders, as we are ourselves, to find new forms of remuneration and get rid of piracy…

Confronted by a mechanism which is essentially conservative, demagogic and corrosive of liberty, which does not deals with what is really at stake in the digital revolution, and pays no heed to the interests of auteur cinema (cinema d’auteur). And in response to the numerous public declarations, drawn up by institutions and lobby groups to speak in the name of a profession which they represent only in part….

We, filmmakers, producers and actors, mark with this declaration our refusal of the Hadopi system, and the Internet and Creation Law.

We call on all lovers of cinema and freedom, of creation and diversity, to make their voices heard to their representatives to abandon Hadopi while there is still time, and put in its place a more just system, taking into account the interests of all.

Signed,

Victoria Abril (actrice), Chantal Akerman (réalisatrice), Agathe Berman (productrice), Paulo Branco (producteur), Catherine Deneuve (actrice), Louis Garrel (acteur), Yann Gonzalez (comédien), Clotilde Hesme (actrice), Christophe Honoré (réalisateur), JP Limosin (acteur), Chiara Mastroianni (actrice), Zina Modiano (réalisatrice), Gael Morel (réalisateur), Eva Truffaut (artiste cinéaste, ayant-droit de François Truffaut), Brigitte Rouan (réalisatrice), Françoise Romand (réalisateur), Laurence Ferreira Barbosa (réalisateur), Santiago Amigorena (réalisateur), Jeanne Balibar (actrice), Luc Wouters (SRF), Jean Sainati (ex délégué de l’ALPA général de 88 à 2002), Pierre Cattan (producteur), Gilles Sandoz (producteur), Pascal Verroust (ADR productions), Timothy Duquesne (auteur), Agnès de Cayeux (auteur), Antoine Moreau (auteur), Nathalie Chéron (directrice de casting), Gisčle Rapp-Meichler (cinéaste), Sylvain Monod (producteur, cinéaste), Richard Rousseau (directeur de casting), Fabrice Ziolkowski (réalisateur), Jacquie Bablet (réalisateur), Olivier Seror (réalisateur)

To see my more recent posts on Hadopi, click here.

More on The Pirate Bay Conviction

Quite a bit of commotion has been unleashed by the conviction in Nordic climes (click here for analysis of the decision). There is a sort of cognitive dissonance when you look at the Swedish newspapers and see the topics covered: IPRED, ACTA, the EU Telecommunications package and of course, the Pirate Bay Trial. It’s as if through some weird alchemy Slashdot and the printed press have mated and given birth to a new hybrid. Today even the rather trashy Expressen took a moment out from the travails of pop stars and the hunt for tax tips to publish a love letter, ‘Beloved Internet‘, denouncing everything from the fight against filesharing to the new FRA surveillance law. For a moment I wondered if there might be an accompanying photo story, 1980s style, dramatizing the thoughts of the article…

In Stockholm 1000 people answered the Pirate Party’s call to demonstrate against the court decision this afternoon, other demonstrations were held in Lund and Karlstad, yet another will take place tomorrow in Gothenburg.

Demonstrators in Medborgplatsen, Stockholm today (from DN).

Oscar Swartz provided detailed daily coverage from Stockholm for Wired during the trial. He managed to contact the elusive Anakata (aka Gottfrid Svartholm Warg) who wins the prize for most pithy reaction to the decision. Asked how he felt about his conviction, he replied, ‘Like a dog!’- the last words uttered by Josef K., Kafka’s protagonist  in the novel ‘The Trial‘, just before he shuffles off his mortal coil.

While entertainment industry lawyers celebrated the result as a ‘victory for artists’, musicians are divided on its merits. Lasse Lindh applauded the conviction, noting that it was ‘good for her’, but rapper Timbuktu described it as a farce and stressed the disproportionate scale of the punishment. Anders Wendin (Money Brother) was shocked that a jail sentence was meted out but ABBA star Björn Ulvaeus celebrated the decision and said that TPB were simply thieves. Henri Vogel, editor of Musician magazine, had no problem with the decision in principle, but railed against the harshness of the sentence whilst doubting the ruling would have any effect on the scale of downloading in general. How long will it be before many people in the music industry share the view of former director of EMI Norway Eric Johansen that filesharing is not theft, and the war on piracy is useless?

Writer ‘Dick Harri PhD’ doesn’t have ambivalent feelings on the matter. He’s insistent that downloads of his books are destroying his livelihood, welcomed the sentence, and added that he’d like to have seen an even stiffer sanction. A position not shared apparently by novelist Unni Drougge, who addressed today’s pirate demonstration in Stockholm.

Away from the more general debate and back on the court decision: Rasmus Fleischer of Piratbyran has dedicated his last blog posts to the judge’s characterization of the TPB as a ‘commercial operation’. He points out that although there was no evidence that TPB made any profit from advertising (the defence argued it merely financed site maintenance), the finding that the site was commercial enabled infliction of a stiffer sentence. This is a good point, and indeed the last decade has seen a determined attempt on the part of lobbyists and legislators to blur the lines between what constitutes commercial and non-commercial activity.

The purpose of this operation is to generalise the use of legal instruments formerly used only against commercial infringers. The use of the ‘commercial scale‘ as the the defined threshold for a criminal copyright offence is the most concrete result, as it does not require that money is made, only that large numbers of copies are produced, bringing all forms of internet distribution and p2p within its fold. This legal innovation first saw the light in the 1997 No Electronic Theft act in the United States , – where it was defined as “‘for purposes of commercial advantage or private financial gain”; ‘gain’ also understood as embracing receipt of other files - and there have been determined attempts to export/import expansion of criminal responsibility by copyright expansionists ever since.

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Meanwhile there are signs of life in the Swedish ISP galaxy. First TeliaSonera, a major broadband provider is refusing to block access to TPB (where business continues as normal), a position shared by Bahnhof, Bredbandsbolaget and Com Hem. Explaining their position Bahnhof CEO Jon Karlung said, “We will not censor sites for our customers, it’s not our job. Anything that violates the principle of a free and open internet, I think, is bad.”

In addition two ISPs have stated that they will not comply with IPRED provisions requiring operators to hand over information linking users to IP addresses for use in copyright infringement investigations. All Tele and Bahnhof have said that the requirements imposed by IPRED are at variance with their obligations under Data Protection legislation and that they will comply with the latter rather the former. Bahnhof has said that they simply do not keep such information.

IPRED Law - All Tele will not divulge any information

Pirate Bay Defendants Convicted

This morning the district court in Stockholm announced the conviction of the four defendants in the trial against The Pirate Bay (TPB) – Peter Sunde Kolmisoppi (Brokep), Carl Lundström, Fredrik Neij (Tiamo) and Gottfrid Svartholm Warg (Anakata). A Google translation of The court decision is now available in english from the IFPI website. What follows is culled from the Swedish press and a cursory examination of the court decision (from the Google translation of the original Swedish version).

The crux of the matter is that they were convicted on one charge, assisting in copyright infringement (violation of the ‘making available’ right), and cleared on the other – ‘preparing a violation of copyright law.’

Sentences handed out were in line with the request of prosecutor Håkan Roswall in March: one year in jail. In addition the defendants have also been ordered to pay 30 million SEK, around 2.72 million euros, in damages to the entertainment companies behind the case. That sum was calculated in relation to the 33 works listed on the indictment, distributed on TPB between July 2005 and May 31 2006. Marten Schultz, an expert on damages in Swedish law has criticised the scale of the award, and argues that it highlights the error in treating the criminal liability and the  damages claim as part of the same proceeding.

Reactions to the Result

Naturally the lawyers and businesspeople involved in the prosecution are rejoicing at the result; Henrik Pontén from the anti-piracy office stated it removed any doubt as to the illegality of TPB as a site, and would pave the way for an expanded legal offering of entertainment works online. Per Sundin, CEO of Universal Music in Sweden, and former CEO of Swedish Sony BMG was also pleased – during the trial he had compared the defendants to ‘digital fences.’ Monique Wadsted, acting on behalf of the MPAA’s Swedish franchise expressed her satisfaction not only at the result, but at the written opinion, which she claimed would withstand higher court scrutiny. But she must have been a little disappointed, after all, she did request the judge to give the defendants two years each….

As for TPB, Peter Kolmisoppi held a press conference over the net from Malmo, where he declared that he’d rather burn everything he had than pay any of the damages, and expressed confidence that they would triumph on appeal. the two stream are archived at Bambuser here (nb first five minutes in Swedish) and here. The Pirate Party declared the decision a scandal, and have announced demonstrations in major cities for tomorrow. their web site has also slowed to a crawl under the traffic, and they say that 2000 new members have joined in th last 24 hours. Lawyers for the defendants were also shocked, and Peter Althin in particular was outraged that the decision had been leaked prior to its official release (there is now an investigation taking place in regard to the leak).

Meanwhile in Moscow, Pirate Bay supporters threw a street party…

Pirate Bay supporters in Moscow

The Judgement

Infringement of the Making Available Right

The court followed a series of steps in coming to the guilty verdict (see pages 56 and thereafter in the judgment).

First they stated that the works listed as having been infringed were in fact protected by copyright – this was undisputed.

Second, were the works made available without the consent of the rightsholder – again, there was no dispute on this point.

Third, had a communication/transmission to the public – a new element of the  exclusive right of ‘making available’  introduced by the Swedish implementation of the EU copyright directive (July 1st 2005) – taken place? For that right to be violated, a user must have had the possibility to access the work at a time and in a place of their own choosing. The court deemed that this was what happened in the case of accessing a work via a torrent download.

IFPI and anti-piracy staff Magnus Mårtensson and Anders Nilsson had downloaded the specified files during the period, and this was taken by the judge as evidence that the works had been the object of a communication/transmission to the public.

Fourthly, although some of the downloads took place in other jurisdictions, the presence of TPB’s servers in Sweden meant that the violations were punishable in Sweden. Under section 4 of the Swedish criminal law, liability for a crime lies not only with those who committed it, but also those who ‘promoted’ it by ‘advice or deed’ (p.62).

To sum up, TPB:

“….encouraged the main crimes by making it possible for users to load up and store the torrent files to file-sharing service The Pirate Bay provided a database linked to a directory of torrent files, making it possible for users to search for and download torrent files as well as to provide functionality through which the users who wanted to share files could have contact with each other by sharing the service tracker function.” (p.62)

The court stated that TPB was liable for continuously assisting copyright infringement during the period alleged. Furthermore, they insist that in order for the making available right to be infringed, it is not necessary for a full copy of the work to be copied, a portion of a work is sufficient. (p.64)

Collective Responsibility of the Four

There was little doubt about the role of Fredrik Neij and Gottfrid Svartholm Warg in the site, as they admitted to having taken care of much of its technical functioning.

According to the Court, Peter Sunde Kolmisoppi’s liability stems from his involvement in the flow of advertising payments and the use of his company HAIQ for the issuance of invoices in relation to same. In addition his suggestions with regard to the site development were taken as a further indication of involvement.

Carl Lundstrom’s purchase of servers, provision of bandwidth and correspondence of Oded Daniel, specifically in relation to 8.25% share were considered sufficient to establish his involvement,

The judge stated that the defendant’s claims of ignorance regarding the works listed in the indictment is immaterial to their liability – it is enough that they knew that copyright infringement was taking place in general through the site.

Claim of Safe Harbour under the EU E-Commerce Directive

The court found that TPB was a commercial information service provider as defined by the law (the commercial element being derived from their advertising revenue). As they stored torrent files, rather than providing transient storage necessary for a given transmission, they would have had to have in place a process for dealing with copyright complaints in order to be exempted from liability. They didn’t do this, although they knew that some of the torrent files related to copyrighted materials. (p.77)

He concluded that TPB’s operations were conducted in a commercial and organised manner.

The last twenty pages of the judgment explain the formula used to establish the damages awarded to the plaintiffs.

Consequences

For the individuals involved the situation is grave. The plaintiffs will begin immediately to pursue payment of damages. As the decision will be appealed, and the charge does not relate to serious violence, implementation of the prison sentence will be delayed or stayed pending the appeal. In any case, neither Fredrik Neij and Gottfrid Svartholm Warg nor Carl Lundstrom are currently resident in Sweden.

Thanks to its now decentralised infrastructure, TPB will certainly remain online.
A huge part of the Swedish population will feel alienated by this decision – out of the eight largest political parties in Sweden, seven of their youth wings support the decriminalization of filesharing and are sympathetic to the Pirate Bay. Sweden is an incredibly consensus-oriented society, and this decision, together with the local application of the Intellectual Property Enforcement Directive (making pursuit of filesharers easier), will create a significant breach in the consensus model. The hegemonic Social Democrats will pay a stiff price for this, but the most immediate impact will be felt at European Parliament ballot in the first week of June. My prediction is that the Pirate Party will succeed in electing at least one candidate. Top of their list is Christian Engström,, a former campaigner against software patents, who I’ve met, and who can probably start packing his bag for Strasbourg/Brussels today.

Lastly there will be a lot of people from the mainstram press talking up authorised services for accessing movies and music, expect to hear a lot about Spottify, Hulu etc. If the enteratinment industry had a real strategy they would use this moment of maximum visibility to launch other new services, but I’m not holding my breath.

Further coverage on the reaction to the TPB decision can be found here.

Hadopi Law Against P2P Rejected (For Now…)

Interesting goings on in the Hémicycle (French Parliament), after the text of the Loi Creation et Internet (aka Hadopi) had been passed on to the Commission Mixte Paritaire (made up of seven deputies and seven senators), it was significantly stiffened. As part of an emergency legislative procedure the CMP  has the right to elect what it wants in the text, and is not bound to include amendments voted either by deputies or senators. The version of the law signed off on by the CMP required those who had their internet connection cut off for ‘illegal downloading’ would even have to continue paying for the service. In addition, there is no guarantee that those sanctioned  will not be pursued also under regilar copyright legislation, entailing penalies and jail, the HADOPI could amount to the imposition of a form of double punishment. Furthermore the duration of suspension of service was extended from one to two months; far longer than the ‘two to three weeks’ recently suggested by Christine Albanel.

The law went to the Senate where it was duly passed without much comment. next stop, thursday afternoon at the National Assembly. So yesterday there were just a handful of deputies present for the vote which was presumed to be a card-stamping exercise, after all Sarkozy’s UMP have a massive majority. But shortly before the vote, a handful of Socialist deputies entered the room creating a de facto majority for the opposition, the result: 15 in favour, 21 against. Hadopi defeated. (By the way, where were the other 541 deputies?)

Christine Albanel and the whips of the UMP are crying foul, claiming that the opponents had laid a trap, hidden there deputies and broken some unspoken rule. But the result remains the same. what now?

Sarkozy can, and almost certainly will, demand a second reading of the law after the Easter holiday which finishes April 28. Next time it’s certain that the UMP will get a lot more bums on seats. But there will have to be another debate, and the text will be that which entered the CMP rather than that which exited it. In addition this is an extremely unpopular law in France, and there may be more defections as majority deputies contemplate the price they may pay for this when they return to the electorate.

To see my more recent posts on Hadopi, click here.