“A Decisive Movement for the Future of a Civilized Internet”: French Senate Votes Overwhelmingly in Favour of Enacting Three Strikes Law
November 3, 2008 by Sundeep Chauhan and Kate LeslieIn a move that is sure to make legislators around the world stand up and take notice, the French Senate recently sent a clear message to those engaged in illegal downloading that their behaviour will not be tolerated.
In a landslide vote of approval which crossed party lines, the French Senate voted 297 to 15 in support of a law which would see internet access cut off for those users repeatedly caught infringing copyright law, by downloading without authorization music, movies or games.
Under the proposed legislation, France’s internet service providers (ISPs) will be required to monitor those users engaged in copyright infringement. The proposed “three strikes” or “graduated response” legislation, would provide illegal downloaders with two warnings; the first via email and the second via written letter. If the second warning does not deter the user’s illegal behaviour, the user’s internet connection could be revoked for one year by their ISP.
Companies who allow multiple access to one network will also be asked to install firewalls to block illegal file sharing in the workplace.
The Senate resoundingly rejected an amendment proposed by the Mouvement pour la France (MPF) senator, Bruno Retailleau, who had suggested enacting a fine rather than the proposed one year internet revocation. Mr. Retailleau had argued that cutting users off of the internet was excessive as internet had become an “essential commodity”, and that to lose it would be “traumatic for a family”.
The proposed legislation was originally introduced in November 2007 by French President Nicholas Sarkozy, as part of an overall anti-piracy strategy which had arisen out of a landmark agreement between the French government, ISPs, music, and movie makers in France. President Sarkozy called the agreement, “a decisive movement for the future of a civilized internet”.
Enforcement of the law will be overseen by a new governmental agency called the High Authority for Copyright Protection and Dissemination of Works on the Internet (“HADOPI”).
The legislation has been widely lauded by the entertainment industry as a vital step in addressing the harms of online piracy as it is aimed at encouraging internet users currently engaged in copyright infringement to use the increasing number of legal download services.
Critics note that the proposed law is at odds with a previous decision of the European Parliament, which had rejected a call to impose similar internet cut-off legislation across Europe. The proposed legislation, however, accords with proposals made by countries such as the United Kingdom and Australia, which are also considering implementing similar “three strike” legislation to address illegal downloading of copyrighted works. In addition, other countries such as Sweden are reportedly drafting legislation that will ease the tracking and prosecution of persistent pirates. France’s proposed legislation is slated to go to the French National Assembly for final approval.
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The French law clashes with strong social norms in view of the global nature of the Internet. The law breaches privacy rights of people as it would allow internet service providers to enter deep into the private sphere of end end-users, thus breaking with two centuries of tradition and practice.Secondly it will accelerate tension between copyright law and free speech imposing unacceptable burdens on expression.
Rather than push Internet users to use ‘available’ legal download services, the French ‘graduated response’ legislation will have a chilling effect on Internet transactions and business.
As far as the legislation itself is concerned it has the potential to weaken free speech and privacy. In order to track downloads or uploads the data packets sent between the ISP and the individual consumer will have to be ‘monitored’. To establish infringement HADOPI will have to know what was stolen. Who is to say that HADOPI will not encounter private information? How will this information be handled? Breaches of privacy and increased monitoring discourage online business transactions.
Secondly, the enforcement of the law itself will prove difficult and cause much injustice.
Fair use will be trampled, tilting the balance between copyright owner and consumer too much in favour of the former. For example, what if a student downloads a book to be used for research with permission? When looking at the data packet it is unlikely that HADOPI will be able to distil the specific context. This situation will make the law hard to enforce and given the harsh penalty risk wide injustices. I say harsh penalty because there are other ways of achieving this legislation’s goal. For instance, after three strikes instead of cutting a user’s access to the Internet, HADOPI could place that ISP account on a slower service. This would still allow basic online transactions, while reducing illegal downloading.
In terms of enforceability, there is also the jurisdictional issue. Since we are talking about the Internet, the copyright infringed will not always be in France. Does France have the jurisdiction to prosecute infringement of a copyright in a different jurisdiction? In this case, would the infringement really have occurred in France? If a copyright would be hosted in a different jurisdiction illegal copying could be interpreted as taking place outside of France. Even if the illegal copying/downloading is looked at as taking place in France, the legislation only covers copyrights in France. Due to the cross jurisdictional nature of the Internet, it will be interesting to see how this law will be reconciled with the European Parliament, which in September 2008 passed an amendment outlawing Internet cut-offs. This and the fact that the French lower house still needs to approve this legislation means that the French people might not have to deal with such an imbalanced and disproportionate law.
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