French disconnections

Three-Strikes As the Obama Administration begins thinking about how a “voluntary” system of graduated response to online copyright infringement might work in the U.S., the real-world experiment currently underway in France is serving up some potentially invaluable object lessons. Of particular note is the importance of taking into account the competitive implications of such a system to ISPs. It also helps to make sure all “T”s are crossed and “I”s are dotted in any agreement the parties might work out.

As I noted in a previous post, one French ISP, Free, has refused to cooperate with HADOPI in forwarding  emails to its subscribers suspected of illegal file-trading, warning them of potential legal consequences if they don’t knock it off. While Free claims its non-cooperation is a matter of principled objection to the law, other ISPs see it as a naked grabfor market share.

Competing ISP Numericable on Wednesday blasted off a missive to HADOPI demanding that the agency “seize the competent authorities [of Free] if it turned out that the operators agree to hinder your operations and derive a competitive advantage,” according to an auto-translated version of a report on the French-language website Numerama.” A second competitor, Orange, complained that Free’s freelancing was meant simply “to maintain the image of a certain laxity” in order to win subscribers away from more compliant ISPs.

Whatever the intent, Free’s defiance has indeed won it favor among opponents of the law. Opposition MP Nicolas Dupont-Aignan on Wednesday issued a call for Internet users to boycott other ISPs and switch to Free (again, according to an auto-translated version of French-language reports).

Late on Wednesday, French Minister of Culture Frédéric Mitterand struck back, calling Free’s refusal to cooperate “unacceptable” and vowing consequences.

“A provider who fails to comply with its legal obligations should therefore bear the legal and financial consequences,” he said (in auto-translation). “A decree will specify shortly the sanctions in this context. ”

Alas for Mitterand, it’s not clear the government has the legal authority to impose sanctions on Free in this case. While the HADOPI law imposes a fine of €1,500 (US $2,087) on ISPs for each suspected IP address they refuse to identify, its drafters apparently overlooked the possibility that an ISP might furnish the requested identities behind the IP addresses — as Free has done — but then refuse to forward the warning emails to those subscribers — as Free has also now done. Thus, the law is silent on penalties for failing to forward the emails.

Competition among ISPs in itself would be a novel phenomenon in the U.S., of course. Thanks to the lack of network-access rules for broadband, most Americans have no more than two providers to choose between in their local markets, so the competitive impact from a single ISP going its own way on graduated response would be muted. Moreover, no one seriously believes you could enact a mandatory three-strikes law in the U.S., so any enforcement regime would have to be based on industry agreements.

Yet even under a voluntary regime, individual ISPs will need to make decisions about how fully to participate within a broader strategic and competitive context than merely the system’s effectiveness at curtailing copyright infringement. And as they’re discovering in France, the answers aren’t always obvious.