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I just rather quickly wrote a very first draft of this paper. As I did not want to write a boring overview of this interesting story, I am now presenting just a quick overview of the subject, in the hope that your comments will point me toward the aspect of this issue that you find most interesting and wish to read more about. I then intend to develop this question some more.

The French “HADOPI” law, or the latest “Don Quixote” attempt to regulate the internet

A rather curious Bill just passed through the French Senate in late October of this year. The Bill is called “projet de loi création et Internet”, or “Bill promoting the dissemination and protection of creative works on the internet” (ENGLISH text!!). Under this rather plain name hides a mechanism widely criticized all over the web. This paper will try to summarize the arguments and explain what the stakes are.

The main purpose of this Bill is to create the principle of the « flexible response ». This military term (!), actually means that an Internet Copyright infringer (whatever that is!) receives two warnings before his Internet access subscription gets suspended for up to one year.

After the first (and justified) surprise after reading these words, one might ask many questions, like who and how is this supposed to be enforced? Are all the Web communications going to be monitored? By whom? How is the infringement going to be defined? How can the state suspend a subscription to Internet access? Legislative history After a first try by the French legislator to pass a Bill that was actually softening the fines for illegal downloads (the DAVIDSI LAW, for more infos, check out this very interesting article), which was later declared unconstitutional by the French Constitutional Council, the political pressure was strong in France to find a solution to the issue of “illegal downloads”, that a government funded research estimated responsible for the loss of over 10’000 jobs in France.

Purpose and fonctionning of the Bill

The Bill, if passed, will institute an “independent” administrative agency, whose purpose will be to institute this flexible response against illegal digital download, but also to manage interoperability of DRM measures, overlook the creation of legal offering of digital contents, but also to monitor copyright on the Internet. This agency will be provided with a budget of 6.7 millions €.

Collecting information about infringers?

First, the government had to authorize the collecting of IP addresses by the government agency. So, the right holders will be able enjoin the agency to establish a counterfeiting (illegal copy) and keep a record of all IP addresses associated with the file. This gives an enormous power to Record companies,

What is even worse, is that the matching of IP addresses with the names of the subscription holders will be made by the Internet Providers, and not by any judiciary entity, like it usually is the case for such actions.

[This measure was actually factually rendered void by the Telecoms Package Amendment 138 of the EU, which compels the recourse to a judicial entity before restricting the fundamental rights of an (internet) end user.]

Interestingly, the matching of IP addresses is not possible anymore with modern file-sharing technology. As soon as this Bill will become law in France, Users probably won’t take long to figure this out.

Who is targeted?

This is actually quite interesting, to note that not the copyright infringer themselves will be targeted, since it is the internet subscription holder who will be punished. This actually creates a new vicarious liability, that will be forced to every subscriber of an internet access. This means everyone will be forced to protect their networks, and will themselves have to prove that their protection was circumvented in order to protect themselves from liability. So this is an rather surprising reversal of the burden of proof. Knowing how easy it is to crack the most widely used encryption systems used to restrict access to private networks (like WEP keys), imagine how burdensome it would be to find any kind of satisfying solution to this issue, for procedural litigation issues, as well as for good citizens who do not want to be held liable for not being paranoid about their internet access. What will Starbucks do?

Sanctions

The flexible response mechanism, resulting in the suspension of the ISP subscription is not replacing an criminal or civil actions, but will exist in parallel to all these measures. In the discussions over this Bill in the French Senate, there was actually a proposition to replace the subscription cancelling by a fine, but a vast majority rejected this idea.

Critics and Reactions

The government study (unfortunately in French that motivated the Bill is even more horrifying than the Bill itself. The reasoning behind it is actually so simplistic and one sided, that I found it interesting to quote and translate some parts for your comments: The first paragraph states, and I quote “Illegal copying over the Internet is a massive phenomenon (…), with an enormous impact on the economy, (…) resulting in profit loss for the concerned industry as well as job losses”. Further down, this study explains that illegal reproduction of copyrighted works is responsible for 10’000 lost jobs (for a total of about 16.5 millions employed workers in the country), and this number is bound to double if nothing to done to change the present situation. There is probably much to say about this argumentation, as already other contributors to this twiki brilliantly showed.

-- MarcelEggler - 30 Oct 2008

I think it's interesting to note that France has been trying to export this 3 strikes concept. The EU culture ministers recently voted to reject such an approach to copyright enforcement on the internet: http://opendotdotdot.blogspot.com/2008/11/three-strikes-and-youre-out-struck-down.html

The technological arms race between infringers and state enforcement agencies that this type of harsh copyright regime could bring about is troubling. While I think you put a bit too much faith in the average infringer's ability to obfuscate IP-address based identification, the more important concern is that the French government will react by insisting on overbroad technological measures for detecting and stopping copyright infringement.

An arms race between infringers and government is likely to erode internet users privacy further and hinder the legitimate uses of P2P? platforms, including their free-speech enhancing uses.

-- AndreiVoinigescu - 26 Nov 2008

Thank you Andrei, EU's resistance was present even at earlier stages, as I mentionned about Amendment 138 of the Telecoms package. But EU law can only supersede this french law if challenged directly, and this will probably take so long that we probably won't see it happen.

I don't think I put too much faith in the average infringer's ability to obfuscate IP-Adress based identification. I mean, thor-like services are not even needed anymore with modern p2p clients, were the IP adresses are not linkable to files anymore. I mean, some blog posts and spam emails should inform most users rather quickly, don't you think? I mean, once the first few cases will be found in the medias, the reaction should happen rather fast. And maybe, this path into more privacy will even have the positive effect on having people react and be more aware of the importance of the three aspects of privacy...

-- MarcelEggler - 26 Nov 2008

UPDATE: How fast things go...: http://opendotdotdot.blogspot.com/2008/11/amendment-138-goes-poof.html

-- MarcelEggler - 26 Nov 2008

I think the essay does a pretty good job of explaining recent French developments, though it could have been a little clearer about the politics.

But your analysis isn't very useful. If the law is absurd, which it is, and if a climbdown is necessary, which it is, how will it happen? Brussels at the moment is allowing the French experiment to go forward, with the rest of the community expecting that the failure of the HADOPI will spell the end of the music industry's attempt to zombie-ize government into dying for them to protect their business model. Rather than fight with a government that cannot do what it purports to do, and which is about to enter a period of economic collapse that will make 10,000 jobs an even more ridiculously unimportant number, the EC is allowing enough rope for the whole sick bunch of industries to hang themselves.

It is Orange (formerly France Telecomm) that will be primarily damaged by this rubbish. Serving the customer by destroying the customer is not very profitable, and a company already afraid for its future is finding the content industries on which it is forced to depend an even more ugly and overreaching bunch of thugs than usual.

So how does it play out? You can't get by in the 21st century with reporting the news: you have to be right about what it means.

-- EbenMoglen - 30 Nov 2008