HADOPI: THE LAW OF MONEY AND LOBBYING

HADOPI: What a nice name for an incongruous and liberty killing law! The French Hadopi law was created in 2009 as a way to control and regulate internet access. This law has constantly been criticised since its enactment.

It creates a government agency, the Haute Authorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI), which is in charge of the new mechanism’s enforcement.

How does it work?

On receipt of a complaint from a copyright holder or representative, HADOPI may initiate a 'three-strike' procedure: The first step is an e-mail sent to the IP address owner. This e-mail specifies the time at which the claim was filed, but neither the object of the claim nor the identity of the claimant. If the same user commits a second offence during the following 6 months, a similar letter is sent by certified mail. If, during the following year, the offence is repeated, the Internet Service Provider (ISP) is required to suspend internet access to the offending internet user, for a period which can range from two months to one year.

Thus, HADOPI is based on two principles: exclusive private property, “what is mine, is not yours”, and fear of repression.

I. Problems with the reliance on IP addresses

The procedure is based on records of IP addresses. As they amount to immaterial evidence, it is not enough to establish the criminal offence of forging. Therefore, the text proposes not to rely on the presumption of forging but on a new offence, that of "failure to secure ones’ connection".

However this expression raises a number of issues.

First of all, the concept of security is a variable, and its adequacy depends on the threat against which you wish to protect yourself. Hence this supposes that HADOPI establish a list of the means which it considers as effective enough to satisfy the obligation of securing the internet connection. But can we really trust this administrative entity, composed of IT-ignorant bureaucrats, to set the security standards for myriads of persons and firms?

Secondly, it will be physically impossible for a user to prove his good faith in securing his internet access when he is prosecuted. The only solution in that respect would be for HADOPI to have recourse to spyware to collect and send information about the user’s online activity. This is however an unacceptable solution, as the security and protection of privacy problems which would result from such practice would be considerable, and un-reconcilable with the rule of law.

Moreover, the utilisation of the IP addresses raises the question of who really uses the address, and how. French law penalises the owner of an IP address without regard to whether this person is in fact the one responsible for committing the offence. It seems absurd to ask one person to ensure that no one can use his IP address, as it is common knowledge that nowadays, it is relatively easy to modify an IP address or to use someone else’s IP address without any particular computing skills.

Finally, this law can be criticised with regard to its potential impact on individual liberties. HADOPI is merely an administrative entity, and relies on private agencies to carry out the technical aspects of enforcement. But how can we be sure that these private actors will not use the IP addresses for purposes other than those set forth in the law, or that HADOPI itself will not create a “black-box” of downloaders?

As for all technologically impaired « Enarques » (inbred politicians), instating a brand new yet outdated working group, getting incomprehensible laws passed, annoying as many citizens as possible, all of this is to them a challenge, a bet, a comprehensive work the success of which is not a mere given, a subtle evaluation of the problem coupled with an artfully adapted and modelled solution. And yet again one can only observe the drastic fall of standards. In past generations, we strove for valiant causes, aiming for the Moon, or even at mastering the Atom. Today we feel that sending half-hearted emails to a bunch of acne-prone teenagers so that they will stop downloading soft porn on the internet is a courageous endeavour. You dream of what you can…

II. Problems with the construction of the law itself

The major underlying problem with the HADOPI law is that it has been enacted by people who knew nothing about computing. This law focuses on very technical issues. It should not possible for paper-pushers without the slightest ounce of knowledge in the relevant field to create and pass a law which will have a vast impact not only on the future of internet computing, but also on individual liberties.

The drawbacks of this lack of expertise can be seen in the potential consequences of the wording chosen by the members of Parliament. The law refers to “electronic communications”, which, under French law, covers much more than illegal downloading. The first branch of electronic communications is directed at private correspondence, such as emails. The second branch consists of communication to the public through electronics means, which itself encompasses both online communication and online broadcasting. The use of this term means that an internet user must not only concern himself with preventing any illegal use of P2P? or web access, but must also ensure that no “copyright infringement” is committed via private correspondence on his network. This goes against the French constitutional right to the secrecy of private correspondence.

Some artists, who lack the financial means to have access to a record label, broadcast their music thanks to the internet, and rely on downloading to achieve success, for example the band Arcade Fire. This disregard for the reality of downloading as a new medium of distribution, taken with the artists’ lack of standing before the HADOPI authority, brings to light the shallowness of the lawmakers’ professed intentions. This law does not pertain to the protection of artist and the remuneration of labour, it has been enacted for the protection of an industry, an economic machine which, through lobbying, had dictated the priorities of Parliament.

In the end, HADOPI is like, for a great number of persons, a condensed can of everything that is out of whack in this country .A statement taken from the newspaper Contrepoints rightly defined the situation: HADOPI is “a wholly trivial problem, a molehill made into a mountain by a herd of dinosaurs, greasing the hands of corrupt politicians who offer a twisted and inefficient solution, the application of which only deepens the problem and adds to the general confusion, all in all for an egregiously high price, led by frivolous ignoramus and ridiculous subsidized tadpoles”.

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