Down on strikes

french-flagThe copyright industries had high hopes for France’s three-strikes law. At the World Copyright Summit in Washington last week, speakers had nothing but praise for the government of President Nicolas Sarkozy, who championed the law and railroaded it through the legislature. And they were crushed when, on the second day of the conference, the French Constitutional Council threw out the new law’s critical third-strike–government-ordered banishment from the Internet for those caught repeatedly downloading copyrighted content illegally–on grounds that the extra-judicial  procedure the law created was a violation of  free speech, the presumption of innocence and due process.

Oops.

Now, however, things have gotten even worse for the content companies. In a bit of a face-saving move, the French government on Friday stripped out the portion of the law invalidated by the Constitutional Council, sent the rest to Sarkozy for signature and published it in the official record, allowing it to take effect this week.

 Why is that a problem for the content companies? Because the original bill rested on a grand bargain: The content companies would have to accept strict regulation of their businesses–in the form of mandated release windows, DRM interoperability and other matters–in exchange for aggressive action by the government to curb piracy.

Now that the aggressive-action-to-curb-piracy part is out the window, the content companies are stuck with nothing but strict regulation of their businesses.

Thus, among other things, the theatrical-to-DVD window for movies is now set at four months as a matter of law and VOD availability must be simultaneous with the DVD release. The window for online “catch-up TV” will be set by the government, and music services that use DRM will have three months to come up with a plan to make their services interoperable or they must stop using DRM.

Etc.

True, the new government agency created by the law–the High Authority for the Dissemination and Protection of Works on the Internet (HADOPI in French)–will still send out sternly worded letters to copyright infringers, but with no third strike to back them up they’re likely to become simply more spam to be ignored and deleted.

christine-albanel2In another bit of face-saving the government now says it will shortly introduce a proposed amendment to the law reinstating the third strike but this time through a proper judicial proceeding. As a practical matter, however, even if it were to pass it’s likely to be a far-less efficient deterrent to downloading.

The government would have to gather evidence against individual downloaders, vet it, bring individual lawsuits, allow the defendants to contest the charges and prevail in an adversarial proceeding before it could win a disconnect order from a judge. Given that proponents of the law envisioned thousands of disconnect orders being issued each month under the old, administrative procedure, that’s going to mean an awful lot of law suits, at an awful lot of expense.

Culture Minister Christine Albanel has floated the idea of creating nine regional courts around the country to handle all the new business. It’s not clear (probably even to her) whether she means nine special new courts or perhaps special divisions added to nine existing courts. But either way, the process of disconnecting someone from the Internet for downloading illegally will be orders of magnitude more complicated, time-consuming, uncertain and expensive than originally conceived, which means enthusiasm for it is likely to wane, even among those who supported the law as drafted.

What’s that old line about being careful what you wish for?

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