French three-strikes: More "European-style socialism"?

french-flagSo French president Nicolas Sarkozy finally got his three-strikes law. The French Senate voted 189 to 14 last week, in a session boycotted by the  opposition Socialists, to approve de loi Création et Internet, ratifying an earlier, narrower vote in the National Assembly. File-sharing reprobates in France could now find themselves cut off from the Internet by up to a year if they’re fingered a third time for illegal downloading.

Getting the bill this far was no leisurely stroll down the Champs Elysee, however. In the government’s first attempt to get  it through Parliament the bill was ambushed by the opposition in the National Assembly when the majority of members from Sarkozy’s own NMP party ducked the widely unpopular allowing a handful of Socialist members to send to an embarrasing defeat. Stung, the Sarkozy government vowed to try again and this time sparing no effort would be spared to make sure it passed.

In a particularly vivid example of the government’s determination, the Ministry of Culture arranged to have an employee of French broadcaster TF1 sacked on the eve of the vote for having the temerity to write his member of Parliament privately to urge a non vote on the bill. After the Member passed the employee’s email to the Ministry for clarification, the Ministry forwarded it to TF1, which quickly found the employee’s personal views to be “incompatible with his responsibilities” (roughly speaking) to TF1.

HADOPI-gate, as the incident instantly became known (invoking the French acronym for the new agency that will administer the law) became yet another embarrassment for the government.

For the record, Culture Minister Christine Albanel, whose own head probably would have rolled had the bill failed a second time, claimed that the employee’s email was passed on to TF1 management simply FYI, with no intention or expectation that anyone would be sanctioned.

Of course not.

The new law also still must pass muster with the French Constitutional Council, which has one month to decide whether to validate the law, reject it as constitutionally infirm, or order changes. The law is also likely to face private court challenges once its actually invoked against someone.

For now, though, the French regime of “graduated response” to repeat infringers is the toughest of any country in the world, bringing cries of Vive le France from copyright owners and media companies in the U.S. and elsewhere, who would love to see de loi Création et Internet become a model for policymakers everywhere.

Now, we wait to see what the de loi Unintended Consequences will do with it.

For instance:

  • While most of the debate about the new French law has focused on three strikes and the possibility that some people could be banned from the Internet, the law also comes with a lot of rules about how content companies can and cannot release copyrighted works on the Internet. HADOPI, after all, stands for the Haute Autorite pour la Diffusion des Oeuvres et la Protection des droits sur Internet, or roughly, the High Authority for the Dissemination of Works and Protection of Rights on the Internet). The Dissemination of Works part includes, among other things, strict rules on the timing of theatrical, home video and video-on-demand windows for movies. It also includes a provision requiring online music services to agree on a system for interoperability within three months of the law’s effective date or they’ll be required to distribute music without DRM. In short, the law essentially offers content owners a trade: steps to reduce illegal P2P file-trading in exchange for fairly intrusive business regulation. How well they’ll actually like that bargain in the long run remains to be seen.
  • As French commentators have pointed out [auto-translated] HADOPI makes no distinction between businesses and individuals. Businesses, therefore, will be required to ensure that their networks are not used for copyright infringement, including potentially the implementation of expensive filtering systems,  or face the possibility of being cut off from the Internet. French businesses are almost certain to be among the first to receive warning letters (i.e. strike one) from HADOPI. That has “potential backlash” written all over it.
  • The French government’s head-long rush into a three-strikes law helped fuel a counter reformation throughout the rest of the EU. Shortly before the final vote in the French Senate, the European Parliament voted overwhelmingly for a new pan-EU telecommunications law that would prohibit member companies from cutting people off from the Internet without prior judicial review–a bit of due process not provided for in the French law. In the near term, that sets up an inevitable clash between Paris and Brussels, the seat of the EU, which could yet scuttle HADOPI. The new EU position, however, also includes a provision declaring Internet access to be a fundamental human right. While no one seems to know exactly what that’s supposed to mean, the idea that consumers have some sort of fundamental right to Internet access is now clearly in play. In the long run, that has the potential to greatly complicate any and all efforts at Internet regulation, including anti-piracy efforts.
  • The new French law has also, predictably, prompted ISPs elsewhere to dig in their heels against efforts to make them liable for copyright infringment over their networks, or even to cooperate in “voluntary” efforts to police file-sharing. In the wake for French Senate’s vote, for instance, British ISPs rushed out a statement flatly rejecting any “policing role” with respect to copyright infringement. “ISPA continues to dispute calls from some elements of the creative industries for the disconnection of users or technological measures as a method of dealing with potential infringers of copyright online,” the U.K. Internet Service Providers Association in its statement. “ISPs and consumer groups consider disconnection of users to be a disproportionate response, a view that was recently supported by the European Parliament,” the British Internet Service Providers Association said in its statement. “ISPA is disappointed that the creative industries continue to advocate legislation on enforcement without considering how the complicated licensing processes that many stakeholders believe are at the root of the problem can be reformed.”

Take that.

In any case, Europe has now clearly become the main battlefield for the overlapping fights involving file-sharing, ISP liability, consumer digital rights, Internet regulation, digital rights management and media company business models.

The United States, on the other hand, has basically become a side show, a mere spectator to the real action.

That in itself, could have major consequences for all concerned. As France and the European Parliament have both demonstrated, European governments are not at all afraid to impose State-driven solutions to problems that in the U.S. are generally regarded as private disputes best left to market-based solutions–the very approach generally championed by the same interests now applauding France’s classically State-ist solution. Even if the U.S. ends up not following European trends (which also prevail in many non-European territories like Australia and New Zealand) it’s likely to be small comfort to global media and telecommunicatons companies, who will nonetheless have to adjust their global business models to accomodate global regulatory trends.

As with the aftermath of the global financial collapse–largely a U.S. production–the American Model is on the wane. –PS

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