Article

Three strikes and then what? Date: 13/05/2009

France threatens internet suspension to thwart illegal file-sharing

It is not cricket, or baseball for that matter, but the French government’s approach to illicit peer-to-peer (“P2P”) file-sharing has been irretrievably dubbed “three strikes and you’re out” – despite the French aversion to bat and ball.

The tag at least conveys the “stick” part of the carrot-and-stick policy favoured by several legislatures as they threaten to get tough on internet service providers (“ISPs”).

In the UK, the Department for Business Enterprise & Regulatory Reform (BERR) issued a consultation in July 2008 proposing a “co-regulatory approach” based on: (a) self-regulatory codes of practice reflecting the previous memorandum of understanding between ISPs, industry and government; and (b) a regulatory requirement on ISPs to have an effective policy for dealing with P2P file-sharers.

The consultation pertinently looked at “what’s happening elsewhere”, including France. 

Current position in France

Rights-holders have similar remedies for copyright infringement to those in the UK.  As in the UK, however, privacy laws require a rights-holder, having identified an infringer’s IP address, to apply for a court order for an ISP to disclose the infringer’s identity, which the UK and French governments agree is impractical given the millions of individuals engaged in P2P file sharing.

In November 2007 French authorities, ISPs and rights-holders agreed a memorandum of understanding, known as the “Olivennes Agreement”.  It outlined a “graduated response” to web users who continue, despite email warnings, to download content illegally, the ultimate step being suspension of internet access.

This was the first industry agreement to specify such a drastic remedy of last resort.  BERR simply recommends that stakeholders “explore effective mechanisms to deal with repeat infringers”.

Olivennes Bill

On 29 October 2008 the French Senate adopted the “Olivennes Bill”, formalising the three-strikes approach.  It was passed with a massive, cross-party majority.  It needs approval by the National Assembly before becoming law, which is expected in early 2009.
 
The new measures will be implemented by an existing authority, to be renamed “La Haute Autorité pour la diffusion des oeuvres et la protection des droits sur internet” (HADOPI).  Its enforcement functions will be delegated to a Commission composed of judges and civil servants to ensure their impartiality.

The new law will impose a duty on internet users to monitor and (using HADOPI-recommended software) secure their internet access, ensuring that it is not used for copyright infringement.  Each ISP must include such duty in its subscription contract (along with the sanctions for non-compliance), giving rise to a contractual remedy against the subscriber and allowing HADOPI to order the ISP to exercise that remedy.

Graduated response

The Bill sets out the “three strikes” in detail:

Strike 1 - A first-time infringer, identified by a prescribed body (e.g. a collecting society), will be sent an informative email by HADOPI via the ISP setting out the infringer’s legal obligations and warning of penalties for further breach.  It will be sent using an automated system and will not specify the content downloaded.

Strike 2 – Further breach within six months will elicit a second email warning, along with a recorded-delivery letter (or other means of establishing the delivery date).  This ends the “preventive phase”, the rationale for which is supported by several studies, including (as cited by Christine Albanel, the culture minister) UK research showing that 70% of internet users would stop downloading illegally on receiving a first warning and 90% on receiving a second.

Strike 3 – After a third breach within one year, HADOPI may impose sanctions:
(a)      HADOPI may order the ISP to suspend the user’s internet access for a period of three months to one year, during which the user will be banned from taking a subscription with another ISP.  The sanction could instead involve: (i) a limitation of internet services against a guarantee to protect     copyright content; and/or (ii) an injunction – especially for a company where the perpetrator is not personally identifiable – requiring the user to implement technical measures to prevent further breach (backed by a fine for non-compliance), such injunction to be published in specified media if HADOPI so orders.

(b)   The user may instead be offered a reduced period of suspension/ban of one to three months (or restriction and/or injunction along the lines described above), against a written undertaking not to engage in piracy.  If the offer is refused or the undertaking breached, HADOPI may impose the sanction(s) described above.

(c)    Where internet access is suspended, the user’s name will be placed on a blacklist, which ISPs must check before concluding a contract with a new subscriber (facing a fine for non-compliance).  During the period of suspension, the user will remain liable to pay the cost of the subscription.  Where practicable, a user will be allowed to retain access to email, and the user’s access to telephone, television and/or other services under a combined package will not be affected.

(d)  The maximum fine for non-compliance with a HADOPI order is €5,000.

(e)   The user will not be held responsible in circumstances of “force majeure” or fraudulent access by a third party (except where under the user’s supervision or authority).  The user will have a right to appeal against the sanction to a court with powers to annul, stay or alter the sanction.

Legal, political and practical issues

It is common ground that the approach has to be “legal, effective and fair” (BERR), and the Bill has been criticised on all three grounds:

Legality

  • It has been characterised as contrary to human rights, by allowing HADOPI to try and sanction file sharers without a first-instance hearing.  There are arguably insufficient safeguards against false allegations of infringement: HADOPI will act at the instance of industry bodies, whose allegations will not be subject to independent scrutiny at first instance.  Disconnection of internet access has been criticised as “disproportionate” and (along with potential blocking/filtering of content) contrary to freedom of expression.

  • The Bill has been described as contrary to free competition.

  • The Bill allows rights-holders to apply for a court order against any person able to prevent copyright infringement.  This may extend to requiring ISPs to filter/block content, arguably circumventing the E-commerce Directive safe-harbour rules, under which ISPs need not monitor content.

  • ISPs are to pass personal data to HADOPI and rights-holder groups acting as HADOPI’s “agents”, which at first sight contravenes EU data protection laws. 

  • Sharing copyright material is lawful if covered by “fair dealing” defences.  Automated systems used to identify copyright content cannot determine whether such defences apply.

Fairness

  • The Bill allegedly ignores the economic, social and technical consequences of denying web access to individuals and families.

  • In September 2008, the European Parliament adopted “Amendment 138” on the European Commission’s proposal on telecoms reform, which demanded due process on human-rights grounds and a court order for internet disconnection.  On 27 November 2008, however, ministers of the European Council removed Amendment 138 from the “Telecoms Package”.

Practicality

  • It is not clear how expenses incurred by HADOPI and the ISPs will be funded.

  • Disconnection involves a paradox: how can you sell downloads to someone without internet access?  Although a persistent offender seems an improbable sales target, some studies claim that file-sharers are more likely to buy from legal sources than non-file-sharers.

  • Will sanctions alienate the very consumers that the industry is trying to attract?

  • Will file-sharing simply morph into a new configuration requiring new legislation?

  • Should rights-holders simply do deals with the ISPs in return for a share in the ISP’s revenue, e.g. licensing services (such as already exist in France) offering unlimited access to content libraries as part of broadband packages?

Comment

If, despite these obstacles, the French government gets its way, the deterrent effect could be pronounced.  The criticisms are pertinent, but much in the detailed legislation anticipates them.  Many spring from a sense that fundamental freedoms, privacy rights and safe harbours are inviolable; but these should all be capable of proportionate derogation where there is a strong justification, and the protection of property is equally a core right.  The real question is whether the measures proposed are actually proportionate and practicable.

For all the French government’s avowed sense of urgency, the consumer urgently needs to be incentivised to access legitimate content in a way that makes sense to the consumer.  This can only be provided by industry.  As Mme Albanel put it, the creative industries must “improve the diversity, flexibility and price of their offer on digital networks”.

One thing is becoming clearer: the consumer needs a carrot and a stick in equal measure.  With no stick at all (or just a light wrap on the knuckles), determined infringers are unlikely to mend their ways.  With no carrot (or merely unappetising fare on offer), law abiding users will not help the creative industries build a viable digital business model.

How to strike the right balance is a conundrum – a particularly challenging one in the complex legislative environment – and much will turn on what is to happen after that third strike.

Ed Baden-Powell

This article was first published in the February 2009 edition of Copyright World and is reproduced here courtesy of Informa Law.