HADOPI May Be Succeeding -- In Driving French Customers To Dotcom's Mega

Last week, Techdirt reported on the news that falling numbers of P2P users are being trumpeted as a victory for HADOPI's "three strikes" approach in France, but that it is a hollow victory, since sales of recorded music are still dropping in that country. The French site Numerama points out something else interesting happening there (in French), as revealed by the following tweet from Kim Dotcom: 

On Techdirt.

French Hadopi Scheme Gutted; Other Bad Ideas To Be Introduced Instead

France's Hadopi graduated response approach, also known as "three strikes", occupies a special place in the annals of copyright enforcement. It pioneered the idea of punishing users accused of sharing unauthorized copies of files, largely thanks to pressure from the previous French President, Nicolas Sarkozy, who seems to have hated most aspects of this new-fangled Internet thing. Sadly, other countries took up the idea, including the UK with its awful Digital Economy Act, New Zealand, Spain and, more recently, the US. 

On Techdirt.

First HADOPI Victim Convicted, Not For His Own Infringement, But Because His Wife Downloaded Songs

Well, here's a nice contrast: just when a judge in the US has ruled that users there have no obligation to lock down their wifi connections, a court in France decides the exact opposite. What makes the story even more significant is that the individual concerned is the first person to be convicted under France's 3-strikes law, generally known as HADOPI. 

On Techdirt.

What Does The Election Of France's New President Mean For European Copyright?

Whatever you might have thought of his policies, Nicolas Sarkozy probably had more impact on European copyright policy than any other EU politician. He consciously tried to the lead the way in bringing in more extreme copyright enforcement, most notably with the "three strikes" HADOPI law. 

On Techdirt.

Should There Be A Right To Copyright Exceptions?

Last month I wrote about how the Netherlands is looking to introduce new flexibilities into its copyright laws, based on some interesting research on copyright exceptions. There must be something in the air, because a wide range of other groups are contemplating exactly the same approach. 

On Techdirt.

One More Copyright Infringement, And HADOPI Must Disconnect Itself From The Net

The governmental body that oversees France's "three-strikes" law, HADOPI, has already been caught once infringing on the copyright of others -- by using a logo designed with unlicensed fonts. Now it's been spotted using photographs without respecting the so-called "moral rights" of the photographer, which include the right to attribution (French original), absent on HADOPI's site. Such moral rights are taken very seriously in France, where they are automatic, perpetual and cannot be waived (unlike in some other jurisdictions, such as the United Kingdom.) 

On Techdirt.

We Don't Have A 'Wild West' Internet Now, But We Will If SOPA Or Similar Is Passed

Nicolas Sarkozy, the President of France, has the sad distinction of being in the vanguard when it comes to really bad ideas concerning the Internet. On his initiative, France became the testing-ground for the three-strikes approach of throwing people off the Internet upon multiple accusations of copyright infringement, without the need for proof or a court order, known there as HADOPI. He also helped put into circulation a view that is much in vogue at the moment: 

On Techdirt.

iPhone Data Debunks Recording Industry's Report On How French Three Strikes Law Increased Sales

The annual Digital Music Report (pdf) of the International Federation for the Phonographic Industry (IFPI) is a curiously conflicted production. On the one hand, it must celebrate "a healthy 8 per cent increase in our digital revenues in 2011 -- the first time the annual growth rate has risen since records began in 2004 "; on the other, it must continue to push the party line about how the industry is being destroyed by piracy. 

On Techdirt.

HADOPI Wants To Research File Downloads: Shouldn't It Have Done That First?

One of the most important aspects of the UK's Hargreaves Report was that it called for copyright policy to be based on evidence. It also noted that so far that simply hadn't been the case, and that practically all of the so-called "studies" used to justify laws in this area came from the copyright industries, with missing or dubious methodologies. 

On Techdirt.

Help Fight Against Extrajudicial Suppression of UK Domain Names

With so many bad things happening in the digital world at the moment- ACTA, TPP, Digital Economy Act, HADOPI, La Ley Sinde etc. - there is a natural tendency to focus on your own country's woes. But there's something spectacularly awful going on in the US at the moment that is likely to have very serious ramifications here, too.

On Open Enterprise blog.

Leading French Presidential Candidate Would Repeal HADOPI But Keep Net Surveillance

As a recent Techdirt post noted, France's HADOPI "three strikes" policy has effectively criminalized vast swathes of that country. Despite widespread opposition, the law was pushed through in 2009 by the current French President, Nicolas Sarkozy, as one of his pet projects - it's probably no coincidence that he is married to a pop singer. 

On Techdirt.

Why Are Hackers Becoming So Angry?

You may have noticed a bit of a trend recently. Groups of hackers are getting hold of stuff that has hitherto been kept locked up, and making it freely available online, much to the annoyance and embarrassment of those involved.

Well-known examples include Wikileaks, Anonymous and LulzSec, but we now have a new name to add to the list. Step forward (the possibly pseudonymous) Greg Maxwell, who has been provoked by the Aaron Swartz saga, which I wrote about earlier this week, to release some files of his own:

On Open Enterprise blog.

Has HADOPI Had It?

Well, not quite, but this judgment that its sanctions are unconstitutional certainly punches its teeth out:

Le Conseil constitutionnel a censuré, mercredi 10 juin, la partie sanction de la loi Hadopi - la "riposte graduée" - sur le téléchargement illégal. Considérant qu'"Internet est une composante de la liberté d'expression et de consommation", et qu'"en droit français c'est la présomption d'innocence qui prime", le Conseil rappelle que "c'est à la justice de prononcer une sanction lorsqu'il est établi qu'il y a des téléchargements illégaux". "Le rôle de la Haute autorité (Hadopi) est d'avertir le téléchargeur qu'il a été repéré, mais pas de le sanctionner", conclut le Conseil.

[Via Google Translate: The Constitutional Council censored, Wednesday June 10, the sanction of the law Hadopi - the "graduated response" - on illegal downloading. Considering that "the Internet is a component of freedom of expression and consumption", and "french law is the presumption of innocence which prevails, the Council recalled that" it is justice impose a sanction if it is established that there are illegal downloads.""The role of the High Authority (Hadopi) is to warn the downloader has been spotted, but not to punish,"]

So what will that nice M. Sarkozy do now?

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Has HADOPI Driven the French Insane?

One of the things I have been unable to understand is why the French, well known for their love of liberté, égalité, fraternité and all that jazz, seem hell-bent on getting rid of large chunks of said liberté in the digital sphere.

I refer, of course, to the infamous HADOPI law, which aims to deprive French citizens of their Internet connection purely on the say-so of French media companies. Doesn't sound like much égalité, fraternité there, does it? That's bad enough; but it seems that this bad legislation is leading to even worse knock-on consequences.

For example, it's emerged that the Head of the Web Innovation Centre for the French television company TF1 was fired for daring to write to his MP to express his opposition to the HADOPI law. Here's a good summary of what happened:

Yesterday’s Liberation carried a detailed report on the dismissal of a TF1 (Télévision française 1) employee for having expressed his opposition to the law. TF1 is a private TV network, whose boss Martin Bouygues is a close friend of Sarkozy. Jérôme Bourreau-Guggenheim was employed there in the web innovation unit. In February he wrote a personal mail to his MP, Françoise de Panafieu (UMP), expressing his opposition to the law and outlining his reasons as well as explaining his involvement in the sector. At the beginning of March he was summoned by his boss at TF1 online, Arnaud Bosom, who read his letter back to him, verbatim. Bosom explained that the letter had been forwarded to TF1’s legal adviser, Jean-Michel Counillon, by the Ministry of Culture! In April he was summoned to a disciplinary meeting and was sacked on April 16th.

Note that this was a personal opinion, expressed from home, and yet he lost his job because one of the strongest supporters of Sarkozy's drive against file sharing, Martin Bouygues, seems to think he has the right to tell his employees what to think, even outside work.

That's clearly outrageous, and I imagine that TF1 will regret the storm of protest it has provoked, and that maybe even a politician or two will find themselves in trouble. But other side-effects are more subtle – and more insidious.

The same site that carries the post about the TF1 sacking has this useful explanation of another knock-on effect of HADOPI:

An element of Hadopi which hasn’t received much or enough attention as yet, is a section which specifies steps that can be taken by computer users to ensure that they will not be found liable under the new regime. The following is a rough translation of the relevant sections, taken from the text of the law in its current state, as found here. Bear with me, it is torturous, some explanatory notes are added in bold…

« Art. L. 331-30. – After consultation with those developing security systems designed to prevent the illicit use of access to a communication service to the public online (internet!), or electronic communications, people whose business it to offer access to such a service as well as those companies governed by title 2 of the book (Intellectual Property Code) and rightsholders organizations (ie SACEM etc), the High Authority will make public the pertinent functional specifications that these measures must comprise so as to be considered, in its eyes, as valid exoneration of the responsibility of the access subscriber (internet user!) as defined in article L. 336-3.

At the end of a certified evaluation procedure, and taking into consideration conformity with the specifications set out in the previous paragraph and their effectiveness, the High Authority will issue a list certifying the security software whose use will validly exonerate the access holder (internet user!) from their responsibility under the terms of article L. 336-3. This certification will be periodically revised.

Mmmh. So what the law intends is to set up a meeting between security software vendors, antipiracy organizations and ISPs to decide what software you need to install on your machine, so that they can be sure that you behave yourself. If you don’t fancy installing their device, then you’ll just have to swallow any liability consequent to someone else using your machine or accessing your connection.

Now, one aspect not evident from the legalistic mumbo-jumbo above is that this spyware may well not support GNU/Linux:

The Assembly also postponed a handful of amendments that sought to exempt the subscriber if the system is not interoperable with software security, with the first assumption that it uses a system that is too old. An "old" Windows with expensive software installed on, for example. Or a free software ...

An amendment sought to nip in the bud the potential for discrimination technological and financial background of interoperability ( "the means of secure, freely available to consumers, are interoperable). But again, it was rejected by the rapporteur implacably Franck Riester and the Minister of Culture, Christine Albanel.

Now, normally I would assume that good sense would prevail, and that this casting into the outer darkness of GNU/Linux users would be rectified by those rational French people (after all, France is one of the biggest users of free software in the world). But given the rampant insanity that has broken out around HADOPI, I'm no longer confident that is the case. Instead, I fear that France is about to consign itself into the digital dark ages. Quel dommage.

Follow me @glynmoody on Twitter or identi.ca.

French "Three Strikes" Law Unexpectedly Thrown Out

In an incredible turn of events, the French HADOPI legislation, which seemed certain to become law, has been thrown out:

French lawmakers have unexpectedly rejected a bill that would have cut off the Internet connections of people who illegally download music or films.

On Open Enterprise blog.

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HADOPI Law Passed - by 12 Votes to 4

What a travesty of democracy:

Alors que le vote n'était pas prévu avant la semaine prochaine, les quelques députés présents à l'hémicycle à la fin de la discussion sur la loi Création et Internet ont été priés de passer immédiatement au vote, contrairement à l'usage. La loi a été adoptée, en attendant son passage en CMP puis au Conseil Constitutionnel.

On peine à en croire la démocratie dans laquelle on prétend vivre et écrire. Après 41 heures et 40 minutes d'une discussion passionnée sur le texte, il ne restait qu'une poignée de courageux députés autour de 22H45 jeudi soir lorsque l'Assemblée Nationale a décidé, sur instruction du secrétaire d'Etat Roger Karoutchi, de passer immédiatement au vote de la loi Création et Internet, qui n'était pas attendu avant la semaine prochaine. Un fait exceptionnel, qui permet de masquer le nombre important de députés UMP qui se seraient abstenus si le vote s'était fait, comme le veut la tradition, après les questions au gouvernment mardi soir. Ainsi l'a voulu Nicolas Sarkozy.

...

Quatre députés ont voté non (Martine Billard, Patrick Bloche et deux députés non identifiés), et une dizaine de mains se sont levées sur les bancs de la majorité pour voter oui. En tout, 16 députés étaient dans l'hémicycle au moment du vote.

[Via Google Translate: While the vote was not expected until next week, the few members in the chamber at the end of the discussion on the Creation and Internet law were invited to proceed immediately to vote, contrary to custom.The law was passed, until it passes then CMP in the Constitutional Council.

It is difficult to believe in democracy in which we aim to live and write. After 41 hours and 40 minutes of passionate discussion on the text, there remained only a handful of courageous members around 22:45 Thursday evening when the National Assembly decided, on the instructions of the Secretary of State Roger Karoutchi to pass immediately to vote on the Creation and Internet law, which was not expected before next week. One exception, which allows you to hide the large number of UMP deputies who would have abstained if the vote had been, as tradition dictates, after the government issues Tuesday night. Thus wished Nicolas Sarkozy.

...

Pack is voted. Four members voted no (Martine Billard, Patrick Bloche and two unidentified deputies), and a dozen hands were raised on the banks of the majority to vote yes. In all, 16 MPs were in the chamber for the vote.]

So one of the most important, and contentious piece of legislation in recent years is passed by trickery. In this way, those pushing this law have shown their true colours and their contempt for the democratic process.

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Whatever Happened to La Liberté?

What on earth have the French got against the Internet? First the "three strikes and you're out", and now this:

The Soviet Internet where all software that runs on the internet needs to be certified by the State has arrived in France. The rapporteur over the law Hadopi (Internet and Creations) in the French Senate, Mr Tholliere (UMP, same party as Sarkozy), is proposing that all software running on the internet should have a stamp from the State in order to be legal.

I blame that Sarko, myself.