A new French law creates a "three strikes" rule to go after those who illegally download copyrighted content. But a Brussels-based EU digital rights expert says it will be ineffective in protecting intellectual property.
The French government on Tuesday announced the official launch of Hadopi, the government agency designed to promote creative works on the Internet and to counter online piracy. One of the law's most controversial provisions created a "three strikes" system where, in addition to possible fines and even jail time, a person caught illegally downloading copyrighted material three times would be blacklisted from receiving Internet service for up to a year.
The law, which has been in the works since 2008, has gone through various iterations, including surviving a Constitutional Council of France ruling. The court decision required judicial review before terminating someone's Internet connection. Deutsche Welle spoke with Joe McNamee of EDRi, a European digital rights organization based in Brussels about the Hadopi going into effect.
Deutsche Welle: What does the start of Hadopi mean?
Joe McNamee: It means that it's Round 53 in the governments versus IPR (intellectual property rights) infringement game of whack-a-mole is ready to start. And it means that this new bureaucracy is going to take some time working out that two years after being announced, that it's probably not going to be able to do what it set up to do in the first place.
How was Hadopi going to go about encouraging legal content and fighting unauthorized access to copyrighted material online?
Well, over time, particularly because it was set up due to content industry, or old content industry lobbying, the focus on producing legal content online became less and less significant, and the sanctions side of Hadopi became more and more important.
The French government ha said that Hadopi's infrastructure has been set up. Does that mean that people will begin facing prosecution under the three strikes provision and possible lose access to the Internet?
French President Nicolas Sarkozy championed the Hadopi law
That's the plan. What's going to happen is that through some legally dubious means, IP addresses are going to be collected online. The people who were registered by the Internet provider as using the IP address at that time will be told they broke the law. And then through the fullness of time they may get a second, similar warning. And then ultimately leading to this potential disconnection.
Of course we already see peer-to-peer networks increasingly moving towards encryption, and this was exactly what the British Secret Service warned against during the discussions of the Digital Economy Bill in the UK. They said what was going to happen if this type of approach was adopted in the UK was that if there was more encryption then the job of the Secret Service would become more difficult.
These measures by governments are always a year or two or three behind technological development. It's likely that by the time they get around to actually warning anybody for the third time that people will have found alternative means of accessing the content that they want.
Even the content industry itself is beginning to say that there is more of an issue with streaming illegal content than with peer-to-peer sharing. That means they already see two different movements away from the type of infringements that Hadopi was aiming to tackle in the first place.
It seems that there's never been a clear explanation as to how a person could be kept off the Internet after the third strike. Essentially, it seems impossible.
Yes. I always think of the American smart bombs when I see these proposals coming up, because it's basically the opposite of the smart bomb. It's not a targeted response. It's dropped on the problem and causes a lot of collateral damage to legitimacy of freedoms. The only thing that you can be sure that it won't do is to solve the problem that it was intended to solve.
Author: Cyrus Farivar
Editor: Sean Sinico