‘Three Strikes’ Regime Includes Warnings, Access Shutoff, BlackList
A proposal to warn, cut off Internet access to and blacklist alleged online pirates cleared the French Cabinet Wednesday. The “graduated response” or “three strikes” strategy arose from the 2007 Olivennes accord among content owners, ISPs and the government (WID Nov 26 p2). It is being scrutinized by the European Commission, the U.K. and other countries. But a new bureaucracy to prevent and punish infringement may not be the most efficient way to deal protect copyright, some Internet lawyers said.
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The law aims to stop a “hemorrhage” of cultural works on the Internet and encourage legitimate online music and audiovisual offerings, Culture and Communications Minister Christine Albanel’s proposal said. Today’s counterfeiting penalties don’t fit Internet piracy, committed on a grand scale by millions of users often unaware of the nature of their acts, she said. What’s needed is an independent authority charged with preventing and punishing piracy, she said.
That would be the Regulatory Authority for Technical Measures (ARMT), created by a 2006 law on copyright and adjoining rights, Albanel said. ARMT monitors technical protection measures’ interoperability and ensures they don’t impinge on private copying rights, she said.
ARMT would be rechristened the High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI). Based on copyright owners’ complaints, it would send warnings via ISPs to suspected pirates. If notices go unheeded, Albanel said, the authority, under a judge, could suspend a user’s access for three months to a year, and bar the person from signing with another ISP during that time.
HADOPI would have to list those whose access has been suspended, with ISPs required to check would-be subscribers’ names against the list, Albanel’s proposal said. Or the body could order a user to do more to prevent infringement. HADOPI sanctions could be voided or changed by a judge, she said.
The proposal describes how alleged pirates could exonerate themselves by showing they've put measures in place to stop infringement, showing that their Internet connections were used fraudulently by someone else, or claiming force majeure, which means something beyond one’s control.
An Ineffective Solution?
HADOPI would take form because under EU and national laws, Internet Protocol addresses are considered personal data and ISPs are not permitted voluntarily to use the addresses to monitor for piracy and send infringement warnings, said Paris communications attorney Winston Maxwell. But the authority is part of a new, complex, and more bureaucratic legal system, he said.
Some think a better way would be to amend the IP- address-as-personal-data rule so ISPs can alert subscribers of suspected infringement under certain conditions, Maxwell said. MySpace has been introducing a kind of graduated response system, via contracts with subscribers, in which users get warning letters, eventually risking suspension until they attend “copyright school,” he said. A market- driven response to MySpace’s need for good content, it’s showing up elsewhere without government intervention, he said.
But France wants to create a new bureaucracy with what consumers see as “very heavy-handed tactics” of warnings, Internet access termination and blacklisting, Maxwell said. This isn’t the best way to address the problem, since the new law will stir controversy and already has reignited the “old and passionate debate” about users’ right to download what they want, he said. If the proposal bogs down, the market could move on long before the law is adopted, he said.
The proposal isn’t entirely negative, Maxwell said. It’s one leg of the three-pillar Olivennes accord, in which ISPs, content owners and government deemed the status quo unacceptable, he said. ISPs promised to fix the piracy problem by experimenting with filtering, content owners said they'd stop frustrating consumers with digital rights management and make music and movies available faster and government agreed to create a separate entity to address some issues surrounding graduated response, he said.
The government has taken the first step and the other two sectors must follow suit, Maxwell said. It’s a shame ISPs are being allowed to maintain their stance when the graduated response strategy is taking hold elsewhere and ISPs themselves are moving that way, he said.
France’s highest administrative court, the Conseil d'Etat, has rejected proposed mandatory filtering, said Paris Internet attorney Brad Spitz. Given that, he said, it’s unclear how effective the law would be. Pirates now can be prosecuted as criminals, but will a young person stop infringing for fear of getting an email and a suspension, he asked.
Consumers Opposed
Consumer groups slammed the plan. It’s a “monstrous project conceived by disk sellers for their own interests,” said UFC-Que Choisir. That group urged the government not to send the text to the Senate, saying among other things that it hides criminal penalties in civil sanctions, swaps an administrative body for courts and raises universal service issues.
Some faults had been cited by the Conseil d'Etat, the country’s privacy watchdog, and a majority of EU lawmakers. In April the EU approved a resolution asking governments to refrain from allowing Internet access termination for copyright infringement (WID April 8 p1), UFC-Que Choisir said.