Hadopi Law Passed in French National Assembly

The law was passed just a moment ago: 296 – 233.

Next stage in adoption is a vote in the Senate on May14. Given that the socialist senators supported it in previous readings, unlike the PS MPs in the Assembly, there will be little opposition.

More later.

Hadopi Law: Spyware Provisions and the TF1 Sacking

Sunday’s Liberation reported an announcement from the French Ministry for Culture that they had identified the staff member responsible for passing Jérôme Bourreau-Guggenheim’s letter to his MP on to his employer TF1, leading to his sacking. According to Electronlibre, his name is Christophe Tardieu and he is Minister Christin Albanel’s assistant director. He offered his resignation, rejected by the Minister, and has been suspended for a month.
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National Spyware Program

An element of Hadopi which hasn’t received much or enough attention as yet, is a section which specifies steps that can be taken by computer users to ensure that they will not be found liable under the new regime. The following is a rough translation of the relevant sections, taken from the text of the law in its current state, as found here (final version as amended and adopted by the Senate on May 13th, here). Bear with me, it is torturous, some explanatory notes are added in bold…

« Art. L. 331-30. – After consultation with those developing security systems designed to prevent the illicit use of access to a communication service to the public online (internet!), or electronic communications, people whose business it to offer access to such a service (ISPs) as well as those companies governed by title 2 of the book (Intellectual Property Code) and rightsholders organizations  (ie SACEM etc), the High Authority will make public the pertinent functional specifications that these measures must comprise so as to be considered, in its eyes, as valid exoneration of the responsibility of the access subscriber (internet user!) as defined in article L. 336-3.

At the end of a certified evaluation procedure, and taking into consideration conformity with the specifications set out in the previous paragraph and their effectiveness, the High Authority will issue a list certifying the security software whose use will validly exonerate the access holder (internet user!) from their responsibility under the terms of article L. 336-3. This certification will be periodically revised.

Mmmh. So what the law intends is to set up a meeting between consultation with security software vendors, antipiracy organizations and ISPs to decide what software you need to install on your machine, so that they can be sure that you behave yourself. If you don’t fancy installing their device, then you’ll just have to swallow any liability consequent to someone else using your machine or accessing your connection.

Art. L. 336-3. – The access holder to an online service of communication to the public ( internet!) or electronic communications is obliged to ensure that thus access is not used for purposes of reproduction, display, making available, or communication to the public, of works protected by copyright or a neighboring right, without the authorisation of the holders of those rights set out in books 1 and 2 (of the Intellectual Property Code), where required.

Failure to satisfy the obligation set out in the preceding paragraph can result in a punishment according to the conditions defined by article L. 331-25.

No sanction can be taken regarding the access holder in the following cases:

1° If the access holder (internet user!) installed on of the security systems appearing on the list mentioned in the second paragraph of article L. 331-30;

2° If the attack on the rights set out in the first paragraph of the present article is the work of a person who has fraudulently used the access to the online communication service;

3° In case of force majeure.

The failure of the access holder to the obligation defined in the first paragraph will not have the effect of imposing criminal liability.

Apart from finding the last paragraph a bit puzzling – the list of exceptions exempts from all liability, the coda refers only to criminal liability – and the language atrocious, it’s obvious the whole framework is mad and unacceptable. Imposing such strict liability unless users agree to install spyware, almost certainly connected to remote databases, is intrusive as well as dangerous.

How can this not amount to a wholesale surveillance of online activity? Who will have access to the data collected and transmitted by these ’security systems’ (sic), and how will that access be managed? Will the security systems be transparent (free software/open source), or proprietary black-box money-makers, prone later to surrender to a veritable orgy of exploits? If proprietary, how will it be interoperable with free operating systems such as GNU Linux?

‘Certification’ (labellisation) is a phrase commonly heard in recent weeks, and the government wants to ‘certify’ legal content providers (Article. L. 331-21-1), and ultimately looks forward to a set of digital fingerprints corresponding to the works in their repertoires. Presumably the approved ’security systems’ are intended to be able to interact with a database of such objects.

The proposals were already criticized by the French Free Software advocacy group APRIL in March. Attempts by the opposition to have a member of the French data protection agency, CNIL, designated a seat on the Hadopi ‘High Authority’ were rejected, so there won’t be any reassurance coming from that direction.

With the clarification of the law, and its pending passage into the statute book, more attention needs to be focused on these technical provisions and the future process through which they will be defined.

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For a guide to my various posts on Hadopi, please click here.

Hadopi: Amendment 138, A Dismissal for Dissent, and More Letters

Rejected by a poorly attended chamber on 9th April, the government immediately vowed to reintroduce legislation against p2p users, a matter close to President Sarkozy’s heart. Consequently the Creation and Internet law (Hadopi) has been under discussion in the French Parliament, once again, since April 29th and will come to a vote on May 12th.

Introduction

During the debates on the transposition of the EU Copyright Directive in 2005, known as DADVSI, clear differences in approach towards the filesharing phenomenon were manifest. Most of the UMP (conservative majority) saw the practice as a threat to be repressed through increased legal sanctions. The PS (soft left opposition), together with some centrist and UMP dissidents, preferred the imposition of a supplementary charge on broadband connections in exchange for a compulsory license giving the right to share media online. This would generate a revenue with which to compensate rightsholders, and would be distributed via existing collecting societies. To the government’s surprise an amendment inserting the compulsory license proposal garnered enough support to be carried in December 2005.

A second reading of the bill in March 2006 saw the amendment removed, and it was absent from the final text. But the debate did not disappear, and during the presidential election the two main candidates took opposing stances on the issue: Segolene Royal supporting the global license, Nicolas Sarkozy opposing it absolutely. He promised to establish a commission to review the effectiveness of DADVSI and propose additional measures, having already declared himself favourable to a system of graduated response – what has become known as “three strikes”.

Following his election, Sarkozy convened a sectoral summit at the Elysée, which led to a new set of proposals known as the Olivennes-Elysées accords in November 2007. Billed as a watershed agreement between ISPs, ‘creative artists’ and the state authorities, the proposals were presented as a means to provide a proportional deterrent to filesharing whilst expanding the availability of legitimate services. Hadopi is the deterrent, and is a pet-project of the French President. Its rejection was taken as a personal affront, and Sarkozy invited a group of sixty artists and producers to the Elysée on April 22nd to reassure them of his determination to get the law passed.

But in the interim, matters have been complicated on several fronts.

Europe:138^[1]

The first of these has legal significance: on Wednesday the European parliament voted in favour of the so-called Bono amendment 138/46 to the Telecoms Package (TP) (404 – 57, 171 abstentions). The wording is as follows:

“Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a “prior ruling by the judicial authorities,” notably in accordance with Article 11  of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.”

This limits the power to disconnect a user’s connection to procedures involving the judiciary, an element absent from the process Hadopi is intended to establish. This obligation will undermine the whole purpose of Hadopi, conceived as a rapid means to deal with the huge number of p2p users in an administrative fashion. Involvement of a judge in each case of disconnection will slow the process down massively and make it more costly. Indeed this was the very aim of amendment 138, proposed not coincidentally by two french euro MPs, Guy Bono and Daniel Cohn-Bendit,  so as to preemptively emasculate Hadopi. This is the second time 138 has been been endorsed by a large majority in the European parliament. On the first occasion the French government later blocked the amendment in the Council of  Ministers. Thus when the telecoms package returned to Parliament, it had been stripped from the text and need to be reinserted by another vote.

Reintegration of 138 poses two problems for the French government. If the package is ultimately approved and becomes law, then Hadopi will be incompatible with its provisions. If, alternatively, they attempt to block it again at European Council level (whose next TP meeting is June 12th), it will generate further delays for a TP which addresses economic interests far greater than those of entertainment companies.

Scandal at TF1: Sacked for Expressing an Opinion

Yesterday’s Liberation carried a detailed report on the dismissal of a TF1 (Télévision française 1) employee for having expressed his opposition to the law. TF1 is a private TV network, whose boss Martin Bouygues is a close friend of Sarkozy. Jérôme Bourreau-Guggenheim was employed there in the web innovation unit. In February he wrote a personal mail to his MP, Françoise de Panafieu (UMP), expressing his opposition to the law and outlining his reasons as well as explaining his involvement in the sector. At the beginning of March he was summoned by his boss at TF1 online, Arnaud Bosom, who read his letter back to him, verbatim. Bosom explained that the letter had been forwarded to TF1’s legal adviser, Jean-Michel Counillon, by the Ministry of Culture! In April he was summoned to a disciplinary meeting and was sacked on April 16th.

From Liberation:

On April 16th, Jérôme Bourreau receives his letter of ‘dismissal for clear deviation from the strategy’ of TF1′. A shocking letter, which Liberation has a copy of: the group criticizes their employee for his mail to Panafieu, ‘in which he emphasizes, as an employee of the company, his hostility to the Creation and Internet law. And TF1 writes black on white ‘This correspondence reached us through the cabinet of the Ministry for Culture who forwarded it that same day to TF1.’

Bu the best bit is still to come, the human resources department writes: “We regard this attitude as an act of opposition to the strategy of the TF1 group (for whom) the adoption of this law is a high priority”. Before criticizing Bourreau for having ‘put the group in difficulty, his position having given the appearance of a lack of agreement between a ‘web’ manager and the official position as expressed by the company’s directors.”

Bourreau has started proceedings for unfair dismissal. Even supporters of Hadopi have been shocked at this event and a real scandal is brewing.

TF1 is heavily involved in DVD business. Under pressure over the sacking, they issued a communique where they explained that he had been dismissed for the ‘particularly radical positions, repeatedly expressed in public’ against Hadopi. Such positions ‘are contrary to the official declarations of the the TF1  Group, famously favorable to the law‘ and ‘incompatible with his responsibilities within e-TF1, a subsidiary of the group responsible also for anti-piracy work on the internet.’

But note that there is no further explanation as to the source of their employee’s letter. Nor is there any specification regarding his ‘public’ expressions of opinion, nor, specifically, any utterances made in a context which could be construed as antithetical to his role within TF1. In fact, this man’s opinions were apparently not at all public, until they fired him after receiving personal correspondence between him and his MP. The guy was sacked for having the wrong point of view. Full stop.

Minister Christine Albanel insists that she did not relay the information to TF1, and word is that there is hunt on for the snitch. Given that the whole framework of Hadopi is built around identifying liability by means of IP addresses, one hopes that it should not be too hard for them to find out who forwarded the mail from the Ministry.

Nothing to do with me…

‘Artists’ Against ‘Socialists’ (PS)

I’ve already chronicled elements of  the war of words conducted through the media between pro (Tavernier et al) and anti Hadopi factions (Branco/Deneuve, Sci-fi writers). In the last two weeks there have been further salvos: first, another letter from the Tavernier coterie ^[2] published in Liberation and titled, “A Bad Movie at the Parliament”, accusing socialist deputies of trickery (!) against the law. Alleging that the bill’s opponents had no feasible alternative to current copyright protections, they railed against the compulsory license (licence globale) as unsuited to cinema; here, they say, monetization relies upon exclusivity, and freedom to share works online would erode that to the point of collapsing their markets. They continue:

“It goes without saying that the meager offering of the ‘creative contribution’ (current formulation of the compulsory license) will never attain the levels of current financing, which the cinema needs to remain diverse and creative.

Or else it’s another type of cultural society that they want to build, a society where support for diversity in cinema is drastically reduced, and where the most fragile works, those least expected by the market, will be cast-off. We refuse that utterly.”

PS deputies replied, describing Hadopi as a framework that sets artists against users, and which does so whilst attempting a generalised monitoring of online activity. Secondly they argued that the law would provide no additional financing for creation in a situation where filesharing is guaranteed to continue. According to estimates, their proposed alternative – the ‘creative contribution’ – would generate a billion euros a year to finance creation and conclude:

“The digital world makes possible one of the Left’s dreams: access to culture for the all. It necessitates a rethink of outdated economic models, their rules and financing. The legislative prohibitions being attempted can merely delay this change. Do we wish to submit or to channel it? Do we want to guarantee freedom for creators and for internet users, or must everyone end up losers? Do we want culture to be a commodity or something different?”

A few days later another recriminatory letter attacked the PS’s position, this one signed by five self-identified ‘leftwing artists’. The French press has paid some attention to these critics largely because cultural circles have been historically on the moderate left, a tendency consolidated during the presidency of Francois Mitterand in the 198s. On coming to power in 1981 he doubled the budget of the Ministry of Culture and appointed Jack Lang, at that time involved in theatre, as Minister. Little wonder then the PS won so many friends amongst artists in the 1980s – they were giving away money! Many of the artists in the pro-hadopi camp are, well… ageing, and the line of division in the cultural world appears more generational than anything else, although there are obviously exceptions.

The Future of the Cinema (Theatre)
Next it was the turn of independent cinema operators to oppose the law. Repeating many of the criticisms made by others, they go on to meditate on the role of theatres in all this:

“If cinemas still have a future, it is to be a place of exchange and sharing, and not a place where cinemagoers are placed under surveillance with infrared binoculars (to catch people shooting ‘cams’)… cinemas have a reason to exist and that is to be a place for collective experience, and to be fully embedded in neighborhood life.

How could we have lost the sense of what we do to the point of limiting individual rights and the dissemination of works in the name of preserving creation? By setting artists against their public, Hadopi empties of meaning the goal of all creation: to be seen, heard and shared.”

Elsewhere their concerns extend to the technology for digital delivery and projection of films, worrying that ISPs may attempt to monopolise these services, but hoping that they can take advantage of digitalization to diversify their programs.

Paris, cortege against Hadopi, May 1st, 2009

Geeks in the Streets…and the Fiasco to Come…

Meanwhile street demonstrations against the law took place in French cities on April 25th, and in Paris as part of 1st May. Organized online, they’ve succeeded in mobilizing decent numbers.

Notwithstanding all this opposition, it is inevitable that this bill will be passed. Sarkozy is full of wrath at the lèse majesté of its previous rejection, and the process now seems beyond rational analysis. The atmosphere was best captured by an anonymous MP from Sarkozy’s UMP, who stated:

“We’re headed towards a fiasco, but we’re obliged to go there.”

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(1) see La Quadrature du Net for more detail.Back to post ¹
(2) Somewhat surprising to find Costa-Gavras on the list; one time correspondent of the Uruguayan Tupamaro revolutionaries depicted in State of Siege, and director of Z, a compelling account of Greece just prior to the regime of the Colonels.

The full list of signatories: Jean-Jacques Annaud, Patrick Braoudé, Christian Carion, Alain Corneau, Dante Desarthe, Jacques Fansten, Costa-Gavras, Laurent Heynemann, Pierre Jolivet, Gérard Jugnot, Philippe Lioret, Radu Mihaileanu, Claude Miller, Jean-Paul Rappeneau, Coline Serreau, Bertrand Tavernier, Pascal Thomas, Danièle Thompson, Nadine Trintignant, Bertrand van Effenterre, Christian Vincent et Roschdy Zem. Back to post ²