France passes three-strikes bill
Opponents vow to block Hadopi II
France's lower house has approved an amended version of the controversial three-strikes legislation intended to crack down on illegal downloads.
Last September rthe 15th, the French National Assembly passed the anti-piracy bill by a 285 votes to 225, with the ruling majority UMP in favor and the Socialist Party leading opposition votes.
Before the legislation is definitively adopted, it will go to a parliamentary commission of seven senators and seven members of the lower house to pen a final draft that's acceptable to both houses. But the Socialists say they will appeal again to the Constitutional Court to have the bill blocked.
The Sarkozy administration championed the bill though legislation in May, creating a new state agency, the Higher Authority for the Distribution of Works and the Protection of Copyright on the Internet (HADOPI), to oversee temporarily disconnecting individuals from the internet if they are accused of online copyright infringement three times.
In June, France's top court rejected the law as unconstitutional, saying Hadopi lacks the authority to shut down web access without a trial. The bill adopted today leaves it to a judge to order disconnections through an "ordonnance pénale" - a simplified proceeding that doesn't include the presence of the person accused of copyright infringement unless an appeal is filed.
Opponents say they will challenge the law again in front of the Constitutional Council because it deprives the accused of being able to defend themselves properly. France's Ministry of Culture estimates that 1,000 people a day could be cut off from the internet under the bill.
After first being sent a warning email and then a formal letter by Hadopi, those accused of illegal file-sharing for a third time could be disconnected for up to a year and face a €300,000 fine and jail time.
Even those found guilty of "negligence" for allowing others (such as their children) to pirate online material risk a month-long internet suspension and a €1,500 fine.
For more information on the HADOPI-legislation please click here
By Austin Modine
Posted in Music and Media, 15th September 2009 21:29 GMT
France passes three-strikes bill
Friday 20 November the UK government presented the new Digital Economy Bill bringing in hardcore legislation against fileshares.
Minister for Digital Britain Stephen Timms announced that Internet service providers will be forced to send cease-and-desist notices to customers they suspect of copyright infringement. The ISPs are then obliged to pass anonymous details of these notifications to copyright holders -- if an ISP refuses, it faces a £250,000 fine. Film studios and record labels will use these notifications as evidence to apply for a court order to find out the user's name and address, so they can haul users up in front of civil proceedings.
More information from the links below:
You can found the Bill from here
and Explanatory notes on the Bill here
FAC REACH AGREEMENT: THREE-STRIKES YES, NET-SUSPENSION
Despite earlier in the day announcing she wouldn't be attending the big artist debate on the file-sharing issue, Lily Allen did make an appearance at the Featured Artists' Coalition's meeting in London last night, and apparently got a round of applause from her fellow music types.
As previously reported, the meeting at London's Air Studios was in the main motivated by Allen's online rantings on the file-sharing issue. As much previously reported, when the UK government announced last month it was seriously considering introducing new laws to combat file-sharing, including measures to force internet service providers to restrict or suspend the net connections of persistent file-sharers, while the BPI and UK Music quickly came out in support of the proposals, the FAC were very critical of them.
The Coalition issued a statement, also backed by the British Academy Of Songwriters, Composers And Authors and the Music Producers' Guild, saying "we have serious reservations about the content and scope of the proposed legislation" and adding "ordinary music fans and consumers should not be criminalised because of the failings of a legacy sector of business to adapt sufficiently fast to new technological challenges".
But some artists felt that the FAC were far too critical of the government's new proposals, and that in being so critical the Coalition implied they supported a music fan's right to steal music via file-sharing networks rather than buying or streaming it via legit services. They weren't really saying that at all, but when Allen and others went public on the issue it was clear that there was some disagreement in the artist community regarding the official line the FAC had taken.
The official statement to come from the meeting reads thus: "We wish to express our support for Lily Allen in her campaign to alert music lovers to the threat that illegal downloading presents to our industry and to condemn the vitriol that has been directed at her in recent days. Our meeting also voted overwhelmingly to support a three-strike sanction on those who persistently download illegal files, sanctions to consist of a warning letter, a stronger warning letter and a final sanction of the restriction of the infringer's bandwidth to a level which would render file-sharing of media files impractical while leaving basic email and web access functional".
So, as of last night the Featured Artists' Coalition does support the sort-of 'three-strikes' system proposed by the government for combating file-sharing though with the important proviso that they do not support the complete suspension of any music fan's net connection, however much file-sharing they do, just the restriction of their bandwidth so to make the download or upload of large files tediously slow (like back in the good old Napster days). They want to ensure said file-sharers can still email, access basic websites, and post to any blogs Lily Allen may or may not be operating at the time (as long as they are nice to the old girl).
Among the artists putting their name to last night's statement were Blur's Dave Rowntree, Radiohead's Ed O'Brien, Keane's Tim Rice-Oxley, Travis' Fran Healy, Cornershop's Tjinder Singh, Billy Bragg, Howard Jones, Sandie Shaw, Guy Chambers, Patrick Wolf, Sam Duckworth, Annie Lennox, George Michael and, of course, Lily Allen. Even though she's not actually a member of the FAC
The top man of record label trade body the BPI and the boss of entertainment retail organisation ERA have both added their signatures to an open letter published in The Times yesterday supporting the government's recent announcement that it will take a more hardline approach to combat file-sharing, and introduce measures to force ISPs to take action against persistent file-sharers sooner rather than later.
As previously reported, Peter Mandelson and friends are moving to bring forward anti-P2P activity proposed in the government's 'Digital Britain' report, but originally planned as something to consider in two or three years time rather than now. Geoff Taylor and Kim Bayley joined with top people from organisations like the Publishers' Association and the Premier League to encourage Mandy et al to keep up the new momentum on P2P, despite opposition for the internet service providers and some consumer groups.
The open letter notes: "We agree that any measures to tackle online copyright infringement must be fair, proportionate, effect and include an appeals mechanism. We are committed to working with government and internet service providers to ensure this happens".
Mininova flattened by Dutch court
Ordered to remove BitTorrent files or face big fine
A civil court has ordered Pirate Bay rival Mininova to carpet bomb all "infringing" BitTorrent files held on its servers within the next three months or face a fine of up to €5m ($7.16m).
Dutch-based pro-copyright lobby group Stichting Brein, which recently took aim at TPB’s operations, brought the lawsuit against Mininova.
The Utrecht District Court ruled  today in favour of Stichting Brein, which accused Mininova of inciting users to violate copyrights and profiting from infringement by running ads on the site.
“Mininova encourages users of its platform to make copyright material accessible via its platform, helps users find the desired file with the copyrighted work and ensures through its 'administrators' and 'moderators' for the copyrighted works that are accessible through its platform, also useful for its users,” the court said.
It disagreed with Mininova’s assertion that it was impossible for it to track and delete torrents that point to copyrighted materials, such as films, music and games.
Mininova was already in the process of removing some files from its site after being hit with a takedown notice from copyright holders. However, the court ruled that this move wasn’t far reaching enough.
"The court believes it's generally known that commercially made films, games, music and TV series are copyrighted and that these works are only copyright-free in exceptional cases," it ruled.
Mininova said it was mulling an appeal.
“We are obviously not satisfied with this ruling,” saidMininova co-founder Erik Dubbelboer.
“The result of this ruling for Mininova is that we have to re-evaluate our business operations. At this time, we cannot determine what this will actually entail or imply. We will have to examine the verdict thoroughly first.”
Posted in Music and Medi, 26th August 2009 16:00 GMT
 See: http://blog.mininova.org/articles/2009/08/26/mininova-considers-appealing-in-brein-case/
Hot on the heels of the Mysterious Mr. O’s EPM Podcast for July we now welcome the master of the Booty Break himself, DJ Nasty. As one of the most respected Detroit producers around the world he has recorded with some of Detroit's heaviest hitters. Even so, DJ Nasty proves without a doubt that he can hold his own. His discography stems all the way back to 1996, with releases on Twilight 76, Databass, and even his own imprint: Motor City Electro Company. With 50 records released to date, DJ Nasty has sold over 100,000+ records worldwide.
This booty bustin, ghetto tek, electro and breaks mash up features tracks exclusively by Nasty himself from his own Motor City Electro Company imprint.
Click here for the August DJ Nasty podcast
European Commissioner for Competition Neelie Kroes has welcomed
progress made towards pan-European music licensing following discussions
in the Online Commerce Roundtable. In particular, she welcomes
confirmation by French collecting society SACEM that it is willing, in
principle, to entrust other collecting societies with pan-European licensing of
its repertoire and to act as non-exclusive rights manager for publishers and
other collecting societies. She also welcomes confirmation by multinational
record company EMI that it is ready to entrust rights managers to offer its
repertoire for the whole European Economic Area (EEA) and notes Apple's
statements that if iTunes was readily able to license rights on a multi-territorial
basis from publishers and collecting societies, it would consider making its
content available to all European consumers, including those in EU countries
where iTunes is currently not available. Commissioner Neelie Kroes set up
the Roundtable in September 2008 in order to examine ways to reduce
barriers to online commerce so that consumers can take better advantage of
the opportunities offered by the Internet (see IP/08/1338 and SPEECH/08/437).
The report on the Roundtable, just published on the Europa website, outlines
the conclusions of the meeting that Commissioner Kroes hosted on 17
September 2008, as well as of a 16 December 2008 follow-up meeting which
focused on the distribution of online music.
Commissioner Neelie Kroes welcomed the conclusions of the Report, stating that:
"There is a clear willingness expressed by major players in the online distribution of
music in Europe to tackle the many barriers which prevent consumers from fully
benefiting from the opportunities that the Internet provides. I therefore encourage the major players, in particular publishers and collecting societies, to move quickly to
adapt their licensing solutions to the online environment. I will review progress at the next meeting of the Roundtable that I will organise shortly with other major players in the online music market".
At the September Roundtable, all participants recognised the potential for EEA-wide
music licensing in the online environment, and that this was hindered by rights
generally being territorial and usually licensed for certain territories only.
Commissioner Kroes welcomes the readiness expressed by the participants to adopt
licensing solutions which are fit for the online environment. In particular, SACEM
expressed its willingness, in principle, to entrust other collecting societies with the
pan-European licensing of its repertoire and to act as non-exclusive rights manager
for publishers and other collecting societies. EMI is ready to entrust rights managers
to offer its repertoire for the whole EEA. For EMI, different entities (for instance, local agents) could be entrusted for efficient licensing purposes subject to a mechanism which ensures that the standards for licensing and administration are comparable between them.
Commissioner Kroes also notes Apple's statements that if iTunes is readily able to
license rights on a multi-territorial basis from publishers and collecting societies, it
would consider making its content available to all European consumers, including
those in EU countries where iTunes is currently not available.
As regards the online distribution of goods, a variety of views were outlined in the
Roundtable. The Commission will use the inputs of parties which participated in the
public consultation as an input for its ongoing review of the legal regime of vertical
restraints. Draft legislation on vertical restraints will be published during summer
2009 and subject to a public consultation for stakeholders to submit their views.
Commissioner Kroes will continue working with her colleagues in the Commission on
the issues of online piracy and counterfeiting and will, where appropriate, support
action on the regulatory side to tackle these damaging phenomena. In parallel, she
will continue to examine ways to eliminate unjustified barriers to online commerce.
The Roundtable report is available at:
(Source: taken from : http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/832&format=HTML&aged=0&language=EN&guiLanguage=en)
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!