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.

Scepticism Persists

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) 

Notes

1. http://www.obs.coe.int/about/oea/pr/cinema_H1_2009.html

2. http://www.ecrans.fr/Jacques-Attali-On-a-une-guerre-de,7753.html

3. http://www.ecrans.fr/Joseph-Stiglitz-Il-faut-un-systeme,8083.html

Hadopi Rejected by the French Constitutional Council (I)

Good news from France: the Internet and Creation Law, pushed through the legislature by Sarkozy’s UMP, was found unconstitutional on several counts by the France’s Constitutional Council on wednesday. Below I have translated what I think are the most salient sections of the first part, concerning (1) the failure to comply with the presumption of innocence (paragraph 17), (2) reversing the burden of proof ( paragraph 18), and (3) imposition of punishments without involvement of the judiciary (paragraph 16). There are also others dealing with privacy which I will return to later.

What this decision means, is that right to internet access has actually been constitutionalized by the domestic authority. As a consequence, the fate of the campaign for Amendment 138 to the Telecoms Package at European level loses some significance, as it had basically the same aim. The whole purpose of Hadopi has now been negated: a judge will have to be involved where intenet connections are to be cut off. This will slow down the wheels of the administrative machinery, which was designed for the issuance of tens of thousands of warnings on a quasi-automated basis.

Christine Albanel, the Minister in charge of Hadopi has promised to amend the law to return it to constitutionality and has pledged that the first warnings to users will begin by the autumn. But we’ll see about that. This may be just the first sand in the motor of a tricky and unpopular process.

Meanwhile the collective “Pour le Cinema” welcomed the decision, and reaffirmed their commitment as part of the platform “Création Public Internet” (together with la Quadrature du Net, UFC QueChoisir, SAMUP and French branch of the Internet society), to organise a series of public hearings on digitalization and creation in the autumn, with the goal of devising solutions to enable cultural production without reliance upon repressive mechanisms against the public.

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Decision 2009-580 DC, 10 June 2009

12.Taking into account the terms of article 11 of the Declaration of the Rights of Man and Citizens of 1789: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law”; that in the current state of communications technology, and with due regard to the generalized development of online communications services, as well as the importance of these services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access such services:

13. Taking into account that property is amongst the human rights enshrined by articles 2 and 17 of the Declaration of 1789; that the aims and conditions for the exercise of the right to property have seen an evolution since 1789 characterized by an extension of their field of application to new domains; that amongst the latter appears the right, for the holders of copyright and neighboring rights, to enjoy their intellectual property rights and to protect them in a framework defined by the law and by France’s international commitments; that the fight against methods of infringement which are developing on the internet corresponds to the objective of safeguarding intellectual property;

16. Taking into account that the power to sanction enacted by the clauses under challenge empowers the commission for the protection of rights, which has no jurisdiction, to limit or prevent internet access to subscribers as well as other persons who may benefit from it: that the competence granted to this authority is not limited to a particular category of people but rather extends to the whole population: that its powers could lead to restrictions on the right to express oneself and communicate freely, notably from their own home; that in such circumstances, having regard to the nature of the freedom guaranteed by article 11 of the Declaration of 1789, the legislator could not, irrespective of the guarantees surrounding the pronouncement of punishments, grant such powers to an administrative authority with the purpose of protecting the rightsholders of copyright and neighboring rights;

17. Taking into account, moreover, that by virtue of article 9 of the Declaration of 1789, all men are presumed innocent until found guilty; that consequently the legislature cannot in principle institute a presumption of guilt; that nonetheless, in exceptional cases, such presumptions can be created, notably for petty offenses (matière contraventionnelle), so long as they are not conclusive in nature, that the rights of the defense are observed, and the facts reasonably infer the probability of liability

18. Taking into account, in this particular case, that it follows from the clauses under review that carrying out an act of infringement from the internet subscriber’s address constitutes, according to the second paragraph of article L.331-21, “the materiality of the failures defined in article L. 336-3 “; that only the holder of an internet access subscription can be the target of the punishment put in place by the clause under review; that in order to be exonerated, he must, by virtue of article L. 331-38, produce proof of such a nature as to establish that the injury to copyright or neighboring rights resulted from fraud on the part of a third party; that by thus inverting the burden of proof, article 331-38 institutes, in breach of the requirements of article 9 of the Declaration of 1789, a presumption of guilt against the holder of internet access, enabling the imposition of punsihemnets both privative and in restriction of rights against him;

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

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.

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.

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