Hadopi 2 – The Relapse
Sarkozy’s grand plan against the pernicious plague of of p2p users came unstuck last june, when the Constitutional Court struck down the core of the law. Undeterred, his government immediately restarting the legislative process. Given the UMP’s large parliamentary majority, and the umbrage taken by their leadership at the opposition to this law, the process was fast-tracked, and ultimately approved by the National Assembly and Senate, who voted in favour of the new version last tuesday September 22nd. This post will cover developments up to the time of the law’s approval, while the next will detail the new challenge before the Constitutional Court submitted in recent days.
Change of Personnel at the Ministry for Culture
On june 23rd, Christine Albanel was replaced by Frederic Mitterand as Minister for Culture. the latter is the nephew of former president Francois Mitterand and comes from outside the ranks of the UMP. Steering the redrafted Hadopi law is his first assignment. Some critics of the law were initially hopeful that he might be more receptive to their objections, but this hope was misplaced. Christophe Tardieu, the Ministerial aide who saw fit to forward a mail critical of the law by Jermore Bourreau-Guggenheim to his erstwhile employer TF –resulting in him being sacked – was made head of the National Dance Council in August; is that a punishment or a reward? Meanwhile Bourreau-Guggenheim remains unemployed.
Constitutionality by the Back Door?
As described in a previous post, a key constitutional problem with Hadopi 1 was that it assigned power to negate a fundamental right (internet access) to a non-judicial authority, namely the Committee for the Protection of Rights. The purpose of such a system was to create an apparatus capable of issuing hundreds of thousands of warnings and disconnections per year, a volume possible only via an administrative rather than a judicial procedure. Forced to reintroduce judicial authority, the government has elected to use an expedited legal procedure know as the ‘penal order’ (ordonnance penale).
This mechanism is otherwise employed principally for dealing with minor road traffic offenses and in a couple of other areas. It relies on the fact that these are instances where there is little scope to dispute the facts: your car is clocked exceeding the speed limit, you break a red light on camera etc. These cases are dealt with by judges summarily, requiring on average about five minutes per case.
In the case of the alleged copyright infringements under Hadopi 2, it is sufficient that your internet protocol address is flagged transferring proprietary content, and that this is communicated to the Committee for the Protection of Rights. If satisfied by the claim, the judge can then order the suspension of the user’s internet connection for up to a year in the case of copyright violation, or one month where abuse of the line is deemed to derive from negligence (failing to prevent other parties from using the connection for infringement). Under the ‘penal order’ procedure the public prosecutor puts the defendant on notice, but the latter receives no actual hearing, has no legal representation, and the judge is not required to provides grounds for the decision. The judge may also make an order enabling the owners of the copyrighted work to make a damages claim – a facility normally unavailable under the ‘penal order’ and requiring an amendment of the penal procedural code in itself.
Users targeted under this procedure will have 45 days to make a challenge, in which case the charge will be dealt with in court under the adversarial procedure. Should they take this route they expose themselves to a greater range of sanctions. Under the 2005 DADVSI law, copyright infringement is punishable by up to three years imprisonment and 300,000 euros in fines, although in practice these have not been applied. According to the impact study prepared to accompany the law this expedited system aims to deal with 50,000 cases a year and will require 26 judges to be dedicated to its administration. The new legislation also provides for fines, both for ISPs who fail to implement disconnections, and for disconnected users who attempt to revive their access by switching to another provider.
Interestingly, despite the tam-tam of apocalyptic prophecies from the media industry regarding piracy, the most recent European cinema attendance statistics show growth of nearly 4% in the five major markets (1). At the policy level there remains no clear case that repression of p2p will lead to greater funding for cultural production.
Organizations such as UFC Que Choisir and La Qaudrature du Net, politicians from PS, Greens, Communists and the Centre, as well as public figure such as Jacques Attali have continued to oppose against the law, mourning its antiquated premises. Attali has underlined that artists in favour of a Hadopi style solution risk embracing an industry framework which will see them squeezed between the majors and the ISPs. Commenting on the government’s current prorities he remarked:
“It has a certain coherence. That of defending a few stars who are politically highly visible, but who represent nothing. And whom, if one really thinks about it, are overvalued with regard to their artistic utility, not to mention their social utility. They don’t represent the real french creativity.” (2)
In response to arguments that the new legislative framework will strengthen intermediaries rather than artists whilst failing to incentivize the expansion of legitimately available content online, Frédéric Mitterrand has commissioned a report on these topics by three grandees going under the name of the Zelnik Commission. Their report is due in early November. This is almost certainly a prelude to a proposal to introduce an additional tax on internet subscriptions, money which will be passed on on to collection societies. Notionally this would be an expansion of the rules currently applying to blank media. Such a levy on other media supports is considered as compensation for their use in the making of private copies – reproductions not permitted in the online environment. The upshot is that users will end up both taxed on their connection and face punishment should they share proprietary works.
But notwithstanding the continuing climate of unreason, history obstinately refuses to be repealed: users continue to share massive amounts of files and introduce new material into the networks.
Joseph Steglitz put it well in an op-ed in Liberation on September 16th, questioning the logic behind reliance on intellectual property perspectives and remarked:
“Those producers whose business consists in delivering music from artists to consumers have no reason to exist today. It’s like trying to save the coach and horse industry in the age of the automobile.” (3)
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