HADOPI Three Strikes Law at a Crossroad

HADOPI Three Strikes Law at a Crossroad

A three strikes law is one of a number of ideas major corporate entities have brought forth as a way to stem the flow of file-sharing and free information. France had the dubious honour of being amongst the first countries to test run this experiment. Now, years later, France is apparently looking to finally shed such a short-sighted and flawed method to enforce copyright laws.

Even by the time the law was finally approved clear back in 2009, HADOPI was a hugely controversial law. Many pointed out that an IP address is still a very flimsy piece of evidence as an IP address isn’t necessarily connected to an individual under many circumstances. Other’s point out that it’s easy to abuse such a system (as we have seen with the DMCA and it’s ability to stifle free speech).

The debate over HADOPI reached an incredible level of drama when someone ended up being fired from his job because he merely disagreed with the then proposed legislation. By that point, accusations of corruption and conflicts of interest were flying.

Despite all the speed bumps with constitutional challenges and other political hiccups, the law was ultimately passed and a police force under the HADOPI name was formed to enforce the three strikes law. Enforcement for the law officially began sometime in 2010 and it was suppose to run like a well oiled machine to reduce online copyright infringement. However, as some in France have said at the time, there were grains of sand in the machinery that could prove to be big problems for HADOPI. If supporters of the law hoped that opposition would die out after the law was passed, they would be dead wrong.

For one thing, scam artists were taking advantage of the deeply flawed legislation to steal money from the French public. It was ironic really because supporters of the legislation likely argued that HADOPI is suppose to stop “theft”. Because not everyone is a copyright expert, it’s extremely easy to see such a scam being successful. While it was not a big reason why HADOPI is so reviled, it isn’t entirely irrelevant either.

Another reason HADOPI was so unpopular was the fact that ISPs were forced to raise their rates for Internet subscriptions. This was because HADOPI forced ISPs to eat all of the costs associated with the three strikes law. ISPs did object to this and even threatened to refuse to co-oporate on constitutional grounds.

Perhaps the biggest reason for HADOPI showing signs that it was grinding to a halt was that actually enforcing the disconnection proved to be legally difficult. As of now, some 340 people received their third strike notice, but no disconnections ever came. Can you legally disconnect someone from the Internet in France for copyright infringement? Apparently, that question was never answered.

More recently, politics started to be brought into the picture. Nicholas Sarkozy, the then Prime Minister of France was gradually becoming less popular. The governing political party, the UMP, also saw their political fortunes drying up for a whole variety of reasons. It’s unclear if HADOPI played a role, but I would imagine it didn’t help the UMP much outside of some additional support from major corporate interests.

By 2011, another major political party, the Socialist Party, vowed to repeal HADOPI altogether. For a variety of reasons, Sarkozy was defeated earlier this year in an election to Socialist François Hollande.

HADOPI and the three strikes law may have been seemingly unstoppable earlier on, but now the debate has evolved to whether or not the law can even survive at all. eGov Monitor notes that the new government is now trying to abolish HADOPI altogether:

The French Government is set to shut down its police service into illegal downloads, after the new government described the service as “expensive”, “disproportionate” and failing to achieve its aims.

[…]

According to recent statistics, Hadopi has sent 1 million warning emails, 99,000 “strike two” letters and identified 314 people for referral to the courts for possible disconnection. No one has actually been disconnected.

According to Aurelie Filipetti, culture minister in the new French Government, Hadopi has been nothing but a waste of money.

“€12 million per year and 60 officials; that’s an expensive way to send 1 million emails,” Filipetti said. “Hadopi has not fulfilled its mission of developing legal downloads. I prefer to reduce the funding of things that have not been proven to be useful.”

If you compared the debate over HADOPI between 2009 and now, this is actually quite an astonishing turn of events. In 2009, it seemed that come hell or high water, France was getting HADOPI. No matter what criticism, no matter what legal tactic, no matter how expensive it was going to be, no matter how unpopular the legislation was, HADOPI was just going to become reality and a new way of life for the people of France. Now, HADOPI is seen by the government as a waste of money and some might suggest that HADOPI might be abolished altogether. In a way, it was like the French government got drunk off of lobbying and political influence from record companies and movie studios from abroad. Then, the next day, woke up with a huge hangover, a huge bill, lines acrossed its face from the design of a floor carpet and the realization that a few things got destroyed as a result of its activities from the night before. It realized what had happened and decided to not do that again.

Still, the fight over HADOPI isn’t necessarily over yet. Numerama is reporting (Google translated, French original) that there are those trying to find ways of keeping HADOPI alive in some form or another. Pierre Lescure commented that while the disconnection of a user may not be natural, HADOPI must remain intact with some sort of sanction after the third strike. Numerama did note that HADOPI also contains a fine of 300,000 euro’s and up to three years in prison. Whether or not that is enforceable or would even come to fruition is questionable at this stage.

Pierre Lescure is a businessman and has close ties to the film and television industry. He was appointed to head up a consultation with regards to copyright and Internet piracy. Naturally, some have criticised this as a conflict of interest. You can read more about him on the French version of Wikipedia (Google translated, French original).

Whether or not HADOPI will even survive, however, may be a moot point for many outside of France. The damage by HADOPI has already been done with many countries such as New Zealand, South Korea and, to some extent, the United States as well are now either actively considering or already have a three strikes law of their own. It’s extremely easy to point to France as a source for such laws and, indeed, when major copyright players try and pressure other countries into getting a three strikes law, they do sometimes point to France as a shining example of a country that put in place a three strikes law and that every country should follow the French example. In fact, the three strikes law was once in the Anti-Counterfeiting Trade Agreement (ACTA) and is in the Trans-Pacific Partnership (TPP) as of the last Intellectual Property chapter leak.

If France abolishes HADOPI altogether, then ratify the TPP if the TPP still has the three strikes law embedded in it, then France may find themselves back to square one with the debate over the three strikes law. A cruel twist of fate to say the least.

Either way, this has become a very unfortunate legacy for France in the Internet realm of today. HADOPI may very well have not been about enforcing copyright laws as much as it was about getting any country to implement such laws for the sole purpose of creating a launching pad to get other countries to implement similar laws for rights holders. One way to look at it is that France wound up being the Petri dish for the film, television and music industry to conduct a social experiment where they got to find out if they can force such a bad copyright law onto society. They got their laws, but it may be a short-lived victory as France is now realizing what a horrible mistake passing such laws really were.

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