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.
“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…
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 , 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) .
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.
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.’
- Christain Paul’s description, Socialist Party Opponent of the bill.
- To see my more recent posts on Hadopi, click here.
(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.
(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
For the last two weeks I’ve been in Stockholm for the criminal copyright infringement case against the Pirate Bay, or rather four individuals who are being treated as the principal agents behind the site.
Commenting on the events in court appears superfluous due to the extraordinary intensity of online coverage, between blog posts, live streams, live broadcast radio, incessant updates on micro-blogging tools and whatnot, this trial must mark some sort of a watershed. The defendants are online all day in the court room, witnesses sometimes have their computers with them as they give evidence, and the courthouse has provided free wifi. And that’s just the real time media aspect to this event.
Legally speaking the situation is pretty foggy; as widely reported the prosecution dropped half the charges almost as soon as the trial had commenced, and has generally made blunders when dealing with the technical questions – which of course are legion.
But impressive work by the defense on the technological questions will be to little avail unless the court accepts the crux of their defense, that the site operated as an information service that allowed users to share files with one another, and consequently that the Pirate Bay is entitled to a safe harbour from liability under the Swedish implementation of the EU eCommerce Directive, which protects ‘mere conduits’ who do not ‘initiate data transfers’ themselves. Or so it seems to me.
Irrespective of the result, most commentators are convinced that the result will be appealed by the defeated party, and that this case will eventually reach Sweden’s highest court. This wouldn’t surprise me, as the Pirate Bay/file-sharing issue is a primed grenade here, uniting as it does the younger population behind the defendants, and if we are to believe the prosecution, against the law. Sweden is a fairly quiet place, rather orderly, and highly consensus-focused; a decision alienating huge tranches of the youth would not be taken enthusiastically. On the other hand, the US Trade Representative and the various media lobbies in Washington DC won’t let the Swedish government off the hook on what they see as the obligation to help impede the free distribution of the movies, games and music. So whatever the outcome, there’ll be problems for the government.
Closing arguments begin on Monday, and I’ll stay on for some time afterwards to conduct other interviews. Eventually there’ll be another version of Steal This Film, a new iteration 2.5 was just released to coincide with the trial, and includes some footage shot with two of the defendants, Brokep and Tiamo, in Stockholm last year.
Vanessa Renwick’s neon installation sits atop the door to Rick Prelinger’s library of serendipity in San Francisco.
After the usual last minute antics, the second installment of Steal This Film has just been released. You can download it here. There is also a quick interview with my friend Jamie on torrent freak. The film attempts to insert the conflicts over file-sharing and distributed communication in a historical context. Beginning with the book and the printing press, STF 2 tells of the disruptive consequences of new technologies of reproduction, and how these inventions are resisted by those in power.
With historian Elizabeth Eisenstein in her home, April 2007.
Of the many people interviewed there wasn’t space for everyone in the final cut, which will be remedied through the making available online of an archive of the source materials. Undoubtedly the film has innumerable shortcomings, we hope that others will appropriate the materials release, make their own versions, and deepen the discussion.
Wendy Seltzer in Greenwich Village, New York April 2007; creator of Chilling Effects and one of those who are not in the final cut but to whom we are enormously grateful for their generosity.
Interviewed in the film: Aaron Schwartz, Adam Burns, Brokep (the Pirate Bay), Bob Darnton, Brewster Kahle, Dan Glickman, Eben Moglen, Elizabeth Eisenstein, Erik (Mininova), Felix Stadler, Fred Von Lohmann, Ghetto, Howard Rheingold, Lawerence Liang, Raph Levien, Rick Prelinger, The Grime Reaper, Seb Lutgert, Seth Schoen, Siva Vaidhyanathan, Wiley, Yochai Benkler.
Interviewing Eben Moglen from the Software Freedom Law Center in Manhattan, April 2007.
Special thanks to those who were generous enough to allow us to interview them but who are not in the film, sometimes for technical reasons (sound :() or simply because as a film takes shape it has to hug tighter to a theme. Our discussions with people were wide-ranging and sometimes the conversations just didn’t fit with what was eventually to become Steal This Film 2.
… the next film will be more visual!
Eamonn Crudden, Irish filmmaker, Mob Manifesto writer and zombie-economy observer has just released his painstakingly assembled documentary “Route Irish” over Bit Torrent. To my knowledge it is the first time an Irish documentary feature has been released using p2p as its primary delivery mechanism. Premiered in Dublin earlier this month, the documentary is an account and critique of the movement against the use of Shannon airport on the Atlantic seaboard as part of the “war against terror”. The film is the result of nearly five years of work and is written with an attention to detail familiar to those who have seen Eamonn’s previous work, such as “Berlusconi’s Mousetrap” narrating the events of the G8 meeting in Genoa, 2001. More on this later, the torrent for “Route Irish” is available here.
The RIAA and its various international affiliates have been prosecuting people since September 2003, to precious little effect, even if more than 15,000 people have been targeted so far. Simultaneously they have sought to wrest back the trade in media files by licensing their archives to iTunes et al. and running publicity campaigns to ‘correct’ the hoi polloi’s acquired taste for the free copies available online. Joined by the MPAA and games manufacturers, the recording industry have another somewhat more capricious allies in the form of at least a sub-section of the Internet Service Provider industry, many of whom have initiated unilateral policies against all their users simply so as to make their lives easier, and more profitable. The key term is traffic shaping, or as users experience it, throttling, and the results are degraded performance of targeted protocols. Have you checked your ISP lately?
Behind this practice lie a variety of intentions. The first is the desire to restrict the amount of data traffic, and as is well known, p2p is responsible for probably a majority of network traffic; some estimates claim that Bit Torrent (BT) alone is responsible for 50% of all data exchanged. Furthermore (well behaved) p2p users upload large amounts of data relative to other users, which is costly for service providers, whose model is essentially built on a client-server rather than a peer based model, and prices subscriptions based on the presumption that download will exceed upload by a factor of four. Where the ISP doesn’t have adequate bandwidth, this can cause quality of service problems (QoS) for the use of other applications.
Traffic shaping is implemented using three techniques. The first is the restriction of data transfer speeds over ports commonly used for p2p applications such as 6881-6889 for BT. This can be easily circumnavigated by changing the port settings in the client’s preferences and updating the virtual server on the router. Frequently however sophisticated methods are being used which involve packet inspection of the data. This doesn’t require storing or looking at the contents of the data to identify the content, but merely looking at the header and making an adhoc decision as to how to treat it. If packets I’m sending to peers are being dumped or lost, this will have effect how I’m treated by other peers in the network, reducing my download speed. This technique can be thwarted in some cases by encrypting the data (as is possible on clients such as Azureus and uTorrent). Lastly, where encryption and port randomization is used to evade identification, the solution is simply traffic analysis and heuristics: if I have dozens of TCP connections open to numerous IP addresses over a sustained period, well it’s not impossible that I’m getting blocks of the same file from them. Products capable of excecuting such functions are much in demand today, check out Cisco’s Network Based Application Recognition (NBAR) or Allot’s NetEnforcer.
As mentioned above there are many instances where these techniques are driven either by cost and QoS considerations. However this is not always the case. For example Clearwire – a WiMax operator in Canada, Ireland and elsewhere – restrict the use of the Voice over IP services because they are marketing their own (they also make p2p services more or less unusable). 3G operators exclude VOIP for the same reason (they’re not interested in cannibalizing their mobile phone business model). In the future we’re going to see a lot more of this, particularly as ISPs try to position themselves as the delivery point for services such as video on demand – at that point their interest in blocking the untolled distribution of movies will be transparent.
The irony in all this is that ISPs with their own infrastructure effectively received a wealth transfer from the media industries from Napster ownwards. Access to free content was a key driver between the uptake of broadband subscriptions, the point has been made ad nauseam, but 2-8MB downloads are completely otiose for those whose ambition doesn’t exceed browsing the web and using mail. Indeed the media industries continually rammed the point down the throats of anyone who would listen: fierce legislative battles were fought to determine ISP liability for the data carried, concluding in the notice and takedown provisions of the DMCA and EUCD which grant service providers legal shelter from their user’s actions. This certainly facilitated the development of file-sharing culture to the point whereby irrespective of what happens prospectively the media industry has a massive legacy problem due to the sheer quantity of material available out there, for free. So the ISPs are screwing people at both ends: users and media corporations.
Secondly all of this occurs without ISP users being given any explanation, there is no transparency. Traffic shaping systems are introduced on the sly and performace degrades from one ay to the next, causing confusion and a massive waste of time on the part of users who are convinced that they have done something wrong. there are unusually honest companies such as the Australian Exetel, but they are the exceptions. Under cover of creative interpretations of the Terms and Conditions in subscribers’ contracts they can legally get away with changing the service delivered, but it speaks oceans about the contempt they resrve for their predominantly non-technical user-base.
Lastly, my motivation for this rant is that six years ago, together with many others, I realized the potential of distributed media platforms built on p2p architectures. The ambition was not really to get free hollywood and boy-band-bumf, but rather to promote and distribute independent material produced according to another economic logic. And empirically it is beyond question that the amount of material authorised for exchange is proliferating rapidly (Creative Commons, GPL, Free Culture Defintion etc). Perhaps it sounds like net-utopianism, vintage 1995, but this is the first time in communications history that there exists an infrastructure of immediately global scope, capable of being assembled in a modular grassroots manner by the users themselves, who can decide what they want to help push. Irrespective of one’s side in the various debates around media concentration, this is a good thing. In the absence of such shared scalable infrastructures the impact of ‘disruptive technologies’ on communications freedom is reduced to the youtube fallacy: you can feel free to upload your content, but only they have the deep pockets to finance reliable streaming servers that can satisfy demand, thus they ultimately control the conduit. Over the next period there will be efficient p2p based streaming solutions, but if people have become accustomed to the return to dreary client-server relations epitomised by web 2.0/iTunes/rapidshare, the benefits will have been squandered. For some time now there have been legislative initiatives in different jurisdictions to guarantee Net Neutrality, as yet none have managed to become law.
My pal Jamie pointed me towards today’s news that Isohunt and TorrentSpy, probably the two most commonly used torrent site aggregators have announced that they will be implementing a service called FileRights to filter the media indexed by their site. This system is composed of a databse of cryptographic hashes corresponding to copyrighted movies-music-software, and will eliminate ‘offending’ items from the search results.
Every different encoding or compresson of a file will have a different hash value so it will take some time for the mechanism to become in any way effective, and given the competition amongst torrent sites together with the low cost of lanuching new aggregators it’s unlikely to have any effect. These two search aggregators have acquired some brand value however and are obviously keen to stay alive and ultimately cash in.
Whilst in San Francisco we attended a screening in Craig Baldwin’s “The Other Cinema”, compéred by filmmaker Sam Green, director of “The Weather Underground” amongst other works. The idea did occur to us to interview him on the subject of his attitude towards p2p, as his work epitomises in some ways the type of film that benefits in visibility through uncontrolled distribution, as it has a definite audience spread thinly worldwide, many of whom will never have the chace to see it in cinema or rent it at a store. However the object of our attention that night was Craig Baldwin, so we stayed focussed. Fortunately Sam was on his way to Rome to the Tekfestival organized by friends of ours, and my pal Espanz took the opportunity to shoot a short interview with him as they wandered through the streets of the city. You can see it here.
- Baking Privacy and User Choice into the Web with Do Not Track
- Party Like it’s 2000: Revisiting Crypto
- test on IP and the economy etc
- Copyright Trolling, Streaming and The Archive AG v Redtube Users
- Snowden and the Cave
- Chin Drops the Bomb: Fair Use For Google Books
- Snowdenmania in Marzahn (bei Berlin)
- ‘Modernising Copyright’ Report Published in Ireland
- Hadopi and User Disconnections: Two Bugs Squashed, More Remain
- Irish High Court Judgement on Pirate Bay Blocking
- Commons Talk
- civil liberties
- European Court of Justice
- european directives
- european regulations
- european union
- material culture
- open video
- Pirate Bay
- Pirate Party
- social cooperation
- steal this film