Disconnection In French Three Strikes Law Scrapped

It may have been a long time coming. The French government has announced that it would no longer be disconnecting alleged copyright infringer’s from the Internet. Instead, it’ll be focused on commercial piracy and merely issuing fines instead.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Passed in 2009, the infamous French three strikes law, or HADOPI (Haute Autorité pour la diffusion des Å“uvres et la protection des droits sur internet) was seen as a major victory for major record labels and movie studio’s. Whether or not it would prove to be a success or a dismal failure, rightsholders used France as a stepping stone to get similar laws passed in other countries with varying degrees of success. Consequences of such laws were never an obstacle for these rightsholders. Criticisms towards these laws were merely brushed off while critics were told that such laws were essentially digital laws for the 21st century. Countries that hadn’t implemented similar laws were, more often then not, called laggards and that their laws needed to be “updated” or risk “falling behind” the countries that have implemented these laws. In fact, such laws were embedded in controversial trade agreements like the Trans-Pacific Partnership (TPP), The Trans-Atlantic Partnership Agreement (TAPA), the Comprehensive Economic and Trade Agreement (CETA) and, at one point, the Anti-Counterfeiting Trade Agreement (ACTA) to try and ensure that countries that didn’t implement such laws earlier would have to choose between agreeing to a three strikes law or being left out of these agreements altogether. It turns out, however, that the flaws that were pointed out for years by critics have come back to bite these rightsholders in a big way.

Reports have been surfacing that say that the French government is now scrapping the three strikes law. The move isn’t entirely a surprise given that the government has a different party in power now than when the law was first put into force (UMP). Back when the law was being proposed, the government, which was run by Nicolas Sarkozy at the time, was determined to make the major record labels and movie studio’s happy by seemingly taking their idea and running with it in spite of fierce opposition from the likes of La Quadrature Du Net, EDRI, several other rights organizations and numerous citizens. Even under Sarkozy’s watch, the law began to fell apart from the very beginning between the embarrassing defeat in government to get the law passed in the first place and the courts rejecting the law on constitutional grounds.

Naturally, problems only grew worse after the passage of the law.

There was the controversy over one person getting fired from his job simply for showing opposition to the law. The employee filed a lawsuit against his employer shortly after. Questions were also raised on whether or not the law was even enforceable. Could someone be fined and/or disconnected from the Internet based on mere accusations of copyright infringement. It would prove to be a legally problematic question. Added to this were the questions of financing the scheme. There was a heated battle between the ISPs and the French government over which of the two would foot bills for enforcing the law. HADOPI was since blamed for ISP rate hikes. On top of that, a public consultation had to be launched to define what was considered a secure Internet access. As if things couldn’t get out of hand enough, the government even suggested that there needed to be mandatory spyware to help enforce the three strikes law. There was also the predictable problems as well. One of those problems was the issue of false infringement notices. A school teacher, at one point, was considering taking HADOPI to court sending three notices to him. False accusations was something we’ve warned about for years with respect to policies like a three strikes law. Those were just some of the problems that faced HADOPI, but what seemed to be the final few nails in the coffin were yet to come.

The UMP, the political party in power was losing popular support as elections grew near. The Socialist Party said that they would repeal HADOPI. Elections were since held and the party became the new governing party of France. One of the chief concerns is the amount of money being spent to achieve so very little in the way of fighting copyright infringement.

While the law wasn’t actually repealed, the government did dismantle the one of the worst elements of the law – the disconnection of alleged file-sharers. From Guardian:

Mired in controversy, the “Hadopi law” succumbed to the pressure of the entertainment industry and would disconnect those suspected of piracy from the internet. Users were first sent two written warnings, in what was called a “graduated response”, and if they did not reply their internet connection would be cut off on the final warning.

The report says that instead of simply disconnecting users, those suspected of copyright could be fined if they did not reply to warnings, with a relatively low fine (€60) to begin, and the size of the fine would increase depending on the number of infractions.

French anti-piracy will now their focus — instead of handing heavy punishments to individual users, the government is looking towards penalising “commercial piracy” and “sites that profit from pirated material”, according to an official spokesperson.

This is certainly quite a turnaround from 2009. We go from disconnecting alleged copyright infringers to simply fining them a relatively small amount (relative to what was handed to Joel Tenenbaum and Jamie Thomas in the US anyway) and saying that they’ll be going after commercial pirates instead. While the US cases seem to be never ending, the fines that were handed down seemed to range between the thousands to millions depending on which part of the case you looked at. €60 is pocket lint compared to pretty much any of those fines in the US. The rightsholders that lobbied for these laws are likely unhappy about these latest developments in the laws history, but perhaps the silver lining in this for them is the fact that notices are still going to be handed out, but the punishment is certainly more sane than before.

After observing the rise and fall of HADOPI, one can’t help but think that this might have the hallmarks of a law written by lobbiests and passed without careful study or even consideration of the consequences of what was written. A law that sounded good to lobbiests on paper, but an absolute nightmare to enforce in practice. France certainly found this out the hard way. From a policy perspective, the law is quite unworkable. From a technological perspective, the law is pretty much a fools errand to carry out. While rightsholders hoped that France would be an example of how to craft copyright laws, France wound up being a shining example of how not to write copyright laws.

The International implications of this will take some time to be fully realized. Other countries such as South Korea, the UK, and New Zealand have laws that demand the disconnection of file-sharers (in the US, disconnection is suggested, but not mandatory). More importantly, disconnection is also embedded in numerous omnibus international agreements such as the TPP, CETA and TAPA. What impact does the developments in France have on the provisions of disconnection in these trade agreements? Now that France basically admitted that the policy of disconnection is impractical, will three strikes law provision in these agreements be changed? We may never know the full impact given the shroud of secrecy surrounding these agreements. In any event, it’s very hard to make the argument that these developments do not hurt the legitimacy of a three strikes and your out policy. This could very well be the beginning of when rightsholders are forced to go back to the drawing board as the policy loses credibility around the world as policy-makers realize that the critics are right when they say that disconnecting file-sharers is a very unworkable policy in practice. Unless rightsholders come up with an even more ridiculous idea, it’s entirely plausible that a policy of a small fine against file-sharers would be the rout numerous governments take if the government in question hasn’t already employed such a policy already. In addition, going after large scale commercial piracy operations would be a better policy to begin with such as what France has already suggested.

The beginning of more practical solutions in this conflict that has been going on for more than a decade? One can only hope.

Drew Wilson on Twitter: @icecube85 and Google+.

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