France, the first country to implement the controversial “three-strikes-and-you’re-out”-legislation

Intellectual property law is on the move! More and more countries are taking a heavy-handed approach to fighting digital piracy.
Last month the Swedish court found the founders of the peer-to-peer site “The Pirate Bay” guilty of infringing copyright. The court sentenced all four defendants to a year in jail and ordered them to pay 30 million Swedish kronor ($3.6 million) in damages to copyright holders. In January, Irish Internet provider Eircom agreed to disconnect users who download files illegally in a settlement with four major record companies.
Of all European countries, however, France seems to be the most progressive in their battle against digital piracy. After a long and heated political debate, France is the first country to implement the so called “three-strikes and you are out” -legislation.

Last week the French government passed the "HADOPI law” . “HADOPI law” is the nickname for the French bill officially titled "Projet de loi favorisant la diffusion et la protection de la création sur Internet" .
The main purpose of this legislation is to regulate and control the usage of Internet in order to enforce compliance to the copyright law. Under this controversial law anyone who persists in illicit downloading of music or films will be barred from his or hers Internet connection. The HADOPI-law sets out exactly how internet-users may be sanctioned for copyright infringement by Internet service providers (ISPs) on behalf of the copyright owners. The law introduces a graduated punishment mechanism for alleged copyright infringement on the Internet. In short it gives ISPs in France the obligation to block access to the Internet for anyone accused three times of illegal file-sharing, This sort of legislation is more commonly known as the “three strikes and you out” legislation.
The French HADOPI-law is considered to be one of the most aggressive and controversial digital antipiracy regulations of the world.

How does it work?

The HADOPI law relies on online surveillance by copyright owners themselves or their representatives – usually film and music companies. The legislation allows copyrights owners to report alleged copyright infringement to a newly created governmental agency called "Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet" , or "HADOPI" in short.
This agency is responsible for supervising compliance with the copyright laws in France. According to the bill, the agency has several missions, among which are; identifying illegal file sharers and warning them of their actions by email and letter, enforcement of a “graduated response” to illegal use of works, the promotion of commercial downloading and surveillance of legal and illegal use of works.
Copyright owners can report copyright infringement of their products to HADOPI, how will pursue the alleged infringers for the copyright owners. According to the French legislator copyright owners know best if their products are illegally downloaded. When they notice that their intellectual property is being pirated, they can report the IP address of the offending computer to HADOPI. As soon as the agency has received a report on, or took notice of an alleged copyright infringement, it contacts the suspected offender by sending him or her a warning about their illegal activities via email. In case the suspected offender continues his or hers illegal conduct, HADOPI will send another written warning by registered mail. On the third suspected offense, the alleged offenders’ Internet access will be cut off for anywhere from two months to a year. Hence 3 strikes and you’re out!. The electronic warnings to alleged offenders will all be sent and administered by HADOPI, using an automated system. The whole process is handled by the agency and no court or judge is involved in the sanctioning.
HADOPI can be seen as the first government bureaucracy dedicated to hunting down serial copyright violators.

According to the text of the law, the graduated response allows two types of sanctions:

• a temporary suspension of internet connection, from two months to one year, or;
• an injunction to take preventive measures such as the installation of special software that limits access to legitimate content from the internet.

The latter is aimed at companies for which the connection suspension could have drastic effects.
It is also interesting to note that the (temporary) service suspension or disconnection doesn't interrupt billing by the ISP. Eventual charges involved by the service termination are also at the connection owner’s expense.
In order to prevent registration of previously disconnected Internet users with another ISP, the HADOPI-legislation forces ISPs to check a blacklist of terminated users before signing up any new customers. ISP’s will get fined if they fail to do so.
The Minister of Culture is expecting 10000 e-mails, 3000 letters send by registered mail and 1000 disconnections a day when the system is under full steam.

The HADOPI legislation; one of Sarkozy’s flagships

Whether this new French legislation constitutes a sensible restitution of intellectual property to its rightful owners or a ghastly and vindictive invasion of computer-users’ privacy has been a question that divided France’s political parties for years.
Last week the HADOPI-law was, after a long and heated political battle, eventually adopted by an overwhelming majority of 189 in favour and 14 against. This vote is a big victory for Nicolas Sarkozy, who has championed this groundbreaking law since his election in 2008. Passing of the “3 strikes and you are out”-law has been one of his political priorities and Sarkozy hails the HADOPI-legislation as an ambitious and breakthrough solution for media copyright holders.
In the big picture sense, the law is part of Sarkozy’s ambitious project of governmental reforms that, among other things, will lead to an overall better offering of online music, film, and other commercial media. But the rumour also goes that his new wife, model-turned-singer Carla Bruni, who has strong ties with the music industry, has largely pushed the HADOPI-legislation upon Sarkozy.

The HADOPI-law is presented by the Sarkozy government as an effective remedy for the insufficient existing copyright laws. The existing French copyright law now mainly calls for sanctions from the penal code which usually require time-consuming and expensive court cases before a judge. Besides that, the existing laws only allow ‘old fashioned’ fines, and in some cases, prison sentences. According to Sarkozy, these existing sanctions and prosecutions have had little impact on the sales of the recording and film industry and on the battle against illegal downloading.
Therefore supporters of the HADOPI-law say that relying on a government agency for enforcement, instead of relying on ISP’s or copyright holders with a vested interest to take legal action against alleged infringers, will help to avoid conflicts of interest and will serve as an impartial arbitrator between copyright holders and those accused of illegal file distribution. According to Olivier Henrard, a legal advisor of the French government, “the idea behind the HADOPI-bill is to improve the legal distribution model of online media, by making it more flexible.”
The French government has dedicated a website explaining the law to the public and promoting commercial offers for legal downloading. This website can be found at: http://www.jaimelesartistes.fr.

The French constitutional court is currently reviewing the HADOPI law before it can enter into effect. Response from the court is expected in about a month. The law will eventually modify the French intellectual property code.
Meanwhile, sources say many websites have already published ways to circumvent the HADOPI surveillance. According to French newspaper Le Monde, the Internet is already buzzing with tips on avoiding detection by HADOPI.

“A primeur” in Europe

Even though the entertainment industry has lobbied for years for more active policing of the Internet, France is one of the only countries to put together stringent legislation. Several countries have expressed interest in a “3-strikes-and-you’re-out approach, but France is the first to implement in legislation a graduated response approach to tackling online copyright infringement. Most other countries, such as the United Kingdom and the United States, have not introduced strict legislation yet, but instead are encouraging private partnerships and initiatives between ISPs and the entertainment industry to fight piracy on the Internet. In the UK for example, Virgin, in conjunction with the British Phonographic Institute (BPI), has begun to send warning letters to Internet account subscribers with IP addresses used for massive illegal file distribution.
In Germany, lawmakers recently voted against a similar graduated response initiative due to privacy concerns and possible legal claims, and in Italy a graduated response initiative is currently being discussed by legisators.

With the passing of the “three-strikes-and you’re-out” legislation Sarkozy not only intended to regulate illegal filesharing in France, but also to induce and inspire other EU-member states to pass similar pro-active legislation. According to a spokesman for the International Federation of the Phonographic Industry (IFPI) France can be seen as “a pioneer of protecting creative content online”. Sarkozy has set the example and hopes that the other European countries will follow.

The HADOPI-legislation is controversial

The introduction of the HADOPI legislation created a lot of commotion, not only in France, but also in the rest of the world. This is not surprising as the legislation in general is considered one of the most aggressive digital antipiracy regulations out there. The reactions on the new French law vary enormously.

The music and film industry, which wants governments and internet providers to crack down on illegal downloading of copyrighted work, has cheered France’s efforts and has hailed the French scheme as a model for the EU, which is losing hundreds of millions of Euros a year to illicit sharing of films and music. According to John Kennedy, head of the IFPI, the worldwide recording industry body; “This is the most important initiative to help win the war on online piracy that we have seen,”

Although the music and film industry are enthusiastic about the HADOPI-legislation, the law has proven to be quite controversial as it also inspires fierce criticism.
The biggest critique heard on the HADOPI-legislation is that that the law opposes fundamental principles of French and European law, including the respect of a fair trial, principle of proportionality and separation of powers. This critique mostly comes from scholars and lawyers. Issues raised by them are; the total disregard for the principal of presumption if innocence, the lack of means by which the accusations can be addressed by the accused. Also the provision forcing those who have had their access taken away to continue paying their ISPs is under heavy critique. Privation of a service still billed constitutes, according to some critics, a "double sentence" disproportionate in regard of the offense.
Opponents of the legislation also doubt if disconnection from the Internet is indeed a proportionate measure in case of illegal filesharing. They think the measure too far stretching, especially in this Information Age. Just imagine yourself without access to the Internet, with no e-mails, no information! The critics therefore note that France’s judicial body might still challenge the law. Blocking Internet access as a sanction might breach constitutional protections guaranteed by the French Constitutional body . Shutting off a household’s or company’s access to the Internet could represent in itself a fundamental violation of constitutionally protected liberties in France.
Opponents are also worried by the fact that the HADOPI-law does not provide any judicial supervision and that it is entirely separate from the usual judicial system. There is no judge keeping an eye on the proceedings and actions of HADOPI. According to the critics this is especially objectionable since disconnection from the Internet is a serious restriction of a person’s freedom.
Some of the critics also conclude that the legislation does away with due process, as the law does not provide sufficient rules for evidence. A copyright owner simply has to say “j’accuse”, and the offender has to go through great pains to prove his innocence. In their opinion these proceedings clearly violate the principal of the presumption of innocence in criminal proceedings.
Subscribers who are sanctioned by HADOPI and no longer have Internet access do have the right to appeal the decision in a court of law. Opponents, however, note that filing such an appeal would not suspend the HADOPI decision, so that in practice, an individual or organisation deprived from Internet access will stay disconnected during the appeals process, which usually take a few months.
Other opponents of the law stress that the HADOPI-legislation is ineffective and that the new legislation will not foster creation or bring larger royalties to artists as intended. The legislation entirely relies on identifying infringing users through their IP address and these addresses can easily be altered or high-jacked. The law punishes therefore the connection owner and not the actual copyright violator. According to some of the opponents, whole families can be punished for suspicious behaviour of a single member of a household and WiFi hot spot owners will be held responsible for the behaviour of their clients.
Consumer groups fear intrusive monitoring of online activities and warn that innocent users may be unfairly punished if hackers use their accounts to download files.

Opposition and critique on the HADOPI-law does not only come from scholars or people working in the field of intellectual property, but also from citizens. After the passing of the law thousands of emails and phone calls from concerned and frightened citizens reached the French parliament. Approximately sixty percent of the French citizens oppose the legislation, as they find the legislation to repressive.

HADOPI creates a possible battle with EU legislation

There is one point of critique on the French HADOPI legislation I would like to highlight, as it might be determining for the law’s future. That would be the accusation that the HADOPI-legislation violates the laws of the European Union.
The European Union is currently also drafting new telecommunications and Internet regulations on its own and according to several scholars the French legislation sets up a potential battle with these European laws.

A week before the passing of the HADOPI-law the European Parliament introduced a measure prohibiting EU governments from terminating a user's Internet access without a court order. The European Parliament at the same time adopted an amendment saying that, "Internet access is a fundamental right such as the freedom of expression and the freedom to access information", as defined by the Charter of Fundamental Rights of the European Union. 90% of the members of the European Parliament already indicated that it would not support HADOPI’s "graduated response" unless judicial oversight was put into place to manage the process.
The fact that the European Parliament considers access to Internet a fundamental right makes the HADOPI law in direct contradiction to the EU Parliament’s recommendation. And thus France girds itself for a human rights battle. In case the French Supreme Court approves the HADOPI-legislation, it may ultimately still be trumped by the European Union.

This is certainly not the last thing said about this legislation!