Another strike against three-strikes?

More from the be careful what you wish for files: As The Media Wonk noted in a previous post, there is more to France’s three-strikes law than just three-strikes. One less-discussed provision is the strict regulation of movie release windows by the government, taking a key strategic decision out of the hands of the studios. One early victim of that provision appears to be Twentieth Century-Fox, which has scheduled the release of Avatar on Blu-ray and DVD in France for June 1–several months earlier than ordinary business considerations would dictate but necessary to comply with the law.

That provision isn’t the only booby-trap in the law for content owners, however.

The Creation and Internet law, after all, which went into effect on Jan. 1, wasn’t passed only to crack down on digital piracy. It was also intended to promote the legal availability of “multimedia” content on digital platforms. As it turned out, content owners probably should have paid more attention to that end of the deal.

In the spirit of promoting availability, France’s Minister of Culture, Frédéric Mitterrand, ordered up a commission to study and make recommendations on ways to facilitate availability. To head the commission, Mitterrand named Patrick Zelnik, CEO of Naive Records, which happens to be the label for which French First Lady and pop chanteuse Carla Bruni-Sarkozy records (that’s just the way they do things in France).

The Mission Zelnik, as the commission came to be known, issued its recommendations in early January, and they included a number of surprises. Topping the list was a proposal to implement a collective rights licensing scheme for music on digital linear platforms (i.e. webcasts), in effect a compulsory license. The commission also recommended a “voluntary” collective licensing scheme for non-linear platforms (downloads and on-demand streaming), with the stipulation that if the industry can’t come up with a satisfactory “voluntary” scheme within a year the government should mandate one.

The commission also had some further ideas for how to promote the availability of video, including banning exclusive VOD deals between studios and ISPs (in France, individual ISPs make their own direct deals for VOD rights).

Equally notable was what the recommendations did not include. The major record companies had expected the commission to recommend a tax on ISPs to “compensate” rights owners for file-sharing over their networks. Instead it proposed a tax on search-engine advertising (the “Google tax” as it was instantly christened), with the money going to promote French cultural production generally.

While the commission’s recommendations do not, as of now, have any legal force, French president Nicolas Sarkozy, unsurprisingly, immediately embraced them and called to a new law to give them legal force. At the MIDEM music conference in Cannes this week, Mitterrand said plans are in the works.

If the Zelnik recommendations become law, many of the tools music and movie distributors historically have used to maximize revenue–exclusive deals, negotiated license fees, etc.–will be foreclosed.

As for the three-strikes provisions, their implementation has gotten off to very rocky start. Barely had it opened its doors when the administrative agency set up to oversee the three-strikes process–the Haute Autorité pour la Diffusion des Oeuvres et la Protection des Droits sur Internet (HADOPI)–was caught using a type font in its logo without having obtained the rights to use it from its designer, causing much embarrassment (a new version is in the works). Then it turned out someone else might actually own the name HADOPI.

Most damaging of all, implementation has now been put on hold by the Commission nationale de l’informatique et des libertés (CNIL), a watchdog agency the must review all new legislation for potential privacy issues. The CNIL is yet to issue an opinion regarding the handling of personal information used to identify the people behind IP addresses accused of copyright infringement. Meanwhile, estimates put the cost of identifying individuals as high $600,000 (425,000 euros) a day.

Mitterrand now says the first three-strikes warning letters to accused infringers will go out sometime between April and July. Most people outside the government are betting July, and then only if no other hiccups occur.

The worst-case scenario for content owners would be for the three-strikes provisions of the new law to fail, a victim of their own administrative impracticality, leaving only the business regulations in place. We’re not there yet, but it’s not a completely unimaginable outcome.

Did I mention that a senator in Belgium wants to introduce a HADOPI-like law there?

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