HADOPI law

The HADOPI law is the nickname for a French bill officially titled "Projet de loi favorisant la diffusion et la protection de la création sur Internet"^[1] or "bill of law favoring the diffusion and protection of creation on Internet", regulating the usage of Internet in order to enforce the compliance to the copyright law; "HADOPI" being the acronym for the government agency created by the eponymous bill.

The bill, was unexpectedly rejected by the French National Assembly on April 9, 2009.^[2]^[3]^[4]. The French government asked for reconsideration of the bill by the French National Assembly on May 12th 2009 and it was adopted.^[5]

Bill of Law Content

Government agency

The Bill creates a government agency called "Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet" (High Authority of Diffusion of the Art Works and Protection of the (Copy)Rights on Internet); or "HADOPI"; replacing the previous agency, the ARMT (Regulation of Technical Measure Authority) then created by the DADVSI law^[6].

This government agency is composed of a board of 9 members, 3 appointed by the government, 2 by the legislative bodies, 3 appointed by judicial bodies and one appointed by the Conseil supérieur de la propriété littéraire et artistique. He is vested with power of police on the Internet user.

Mandate

On claim or denunciation of copyright holders or their representatives, the HADOPI starts the first step of a so called '3-strike' procedure:

An email is sent to the connection owner, and defined by the IP address involved in the claim.

The email specifies the time of the claim but neither the object of it and the claimant.

The ISP is then supposed to survey the said internet connection. As well, the connection owner is invited to install an filter on his own connection.

Whether a repeated offense is suspected by the copyright holders, their representatives, the ISP or the HADOPI, in the 6 month following the first step, the second step of the procedure is started.

A certified mail is sent to the connection owner with similar information sent in the first mail.

On failure to comply or accusation of repeated offenses by the copyright holders, their representatives, the ISP or the HADOPI, in the year following the reception of the certified letter, the third step of the procedure is started.

The ISP is required to suspend the internet service for the internet connection, object of the claim, for 2 months to 1 year.

The connection owner is blacklisted and third party ISP are prevented to provide him an internet connection. This service suspension doesn't interrupt billing. Eventual charges involved by the service termination are at the connection owner expense.

Recourse to a judicial court is not possible for the first 2 steps of the procedure, and the last step is not stoppable by judicial recourse. The charge of the proof is on the connection owner.

Internet content provider

Search engines must reference only proven legal material, which is obtained by certification by the HADOPI.

Legislative process

The bill of law is presented to the French Senate on June 25, 2008.
On October 23th, 2008, the government declares of matter of urgency on the bill, meaning the bill can be read only once per legislative chamber (so limiting the debating process between both chambers) in conformance with art. 45 of the French constitution.
The bill is adopted by the Senate on October 30th, 2008.
The bill is presented to the French National Assembly on March,11th, 2009 where it is amended
The amended bill is adopted by the National Assembly on April 2nd, 2009.
Since the text of the bill approved by the 2 legislative chamber is different and in agreement with the state of urgency relative to the bill, a parliamentary commission gathering 7 member of the Senate and 7 member of the National assembly is constituted on April 7th, 2009, and is mandated to produce a common text to be voted by the both chamber without preliminary debate.
The bill produced by the parliamentary is adopted by the Senate on April 9th, 2009, at the unanimity of the present senators (vote is not recorded).
The same bill is defeated by the National Assembly on same day, by 21 Nay against 15 ya, all form UMP.
Following the defeating of the bill, the legislative procedure has been start from ground againby the government, and a bill is represented to the National Assembly for first lecture on April 29th where it is the object of 499 amendment, mostly rejected^[7]
The bill is adopted by the National Assembly on 'first lecture' on May 12th, 2009, by 296 ya against 233 nay. All present PS members voted nay except Jack Lang,
The Senate is expected to adopt the bill on May 13th.

Background

The implementation of the European Copyright Directive in the french legislation has given the so called DADVSI_law which is in application since 2007.

The DADVSI law, created a new crime: the crime of lack of observation to Internet connections in order to prevent the exchange of copyrighted material without prior agreement from the copyright holders ^{[clarification needed]}. The DADVSI law did not define any punishment. It has been partially invalidated by the Constitutional Council of France noticeably rejecting the principle of escalation according to which the sanction could occurs in several step due to the lack of their definition ^[8], and retaining only the crime of copyright infringement sanction, which is punished by up to 3 years in prison and a fine of up to €300,000.

The Hadopi law is supposed to address the concerns of the Constitutional Council of France, in addition to replacing the DADVSI law, which has as a matter of fact not yet enforced.

On September 5, 2007, the French Ministry of Culture, Christine Albanel asked to the CEO of the main French record reseller(Fnac), then Denis Olivennes, to lead a taskforce to study a three-strike sanction, compatible with the decision of the french constitutional council. After audition of representatives of the entertainment industry, internet service providers and consumer associations, Denis Olivennes taskforces gave its conclusion report to the ministry on November 27^[9]. The report was signed by 40 companies at the Elysée and presented as the "Olivennes agreement" renamed later "Elysée agreement".

The HADOPI law is the implementation of the Olivennes report, supported by the Olivennes agreement, where the main representative of the entertainment and media diffusion industry agreed to collaborate to the enforcement of the HADOPI law. Nevertheless some companies, noticeably the ISP as Orange and Free have denounced the agreement sometimes afterward^[10].

Lobbying

Eventually, due to its controversial nature, the bill of law will be the object of a lobbying campaign which will be revived after the failure of the parliament majority to adopt the bill on April 9th, 2009.

Pro law

Head of state

On October 4th, 2008, The Head of State, Nicolas Sarkozy, supporting personally the law, as interceded to the president of the European Commission, toward the non scheduling of the Telecoms_Package#Amendment_46_.28previously_138.29 of the Telecoms Package susceptible to invalidate the law. the European Commission has rejected the Nicolas Sarkozy demand on October 6, 2008.

French government

The French government opened, a dedicated website [3] (domain name recorded on October 1st, 2008) receiving backing of preeminent actors of the french entertainment industry. The content of the website does not necessarily reflect the wording of the bill, and eventually can be considered as misleading by some^[who?].

The French Wikipedia pages relative to HAPODI, have been falsified from the Ministry of the Culture Office on February 14th ^[11]

On May 7th, 2009, Intimidation methods against bill of law opponent have been discovered through the Jérôme Bourreau-Guggenheim affair, revealed by the newspaper Liberation ^[12] : On action of the minister of the Culture office director, Christophe Tardieu, Jérôme Bourreau-Guggenheim has been dismissed of its company, the main french TV broadcaster TF1 on April 16th, 2009, on ground he has expressed -thru private email to his member of parliament, Françoise de Panafieu- an opinion against the Hadopi bill of law. ^[13] ^[14] ^[15]^[16]

Entertainment industry

The SACEM, with other entertainment industry players, have published a petition of "10000 artists" in support of the Hadopi law^[17]. The list of has been challenged due to the fact numerous signatures are proven to not coming from people exercising any artistic activities as described by the petition, while still working for the entertainment industry, or eventually belong to not existing at all people. Some artists figuring in the petition has denied to have brought their caution to this petition^[18]. This petition has been recurrently used by the proponent of the law, on the governmental website [4].

Against law

Consumer association

The leading french consumer association UFC Que Choisir has positioned itself against the law^[19]

Others association

A group called quadrature du net^[20] is probably the main lobbyist against the law.

Following an open letter in the newspaper Liberation^[21] publsihed on May 7th, 2009, and co-authored noticeably by Victoria Abril and Catherine Deneuve, an informal group has been constituted under the name Creation Public Internet^[22] and is composed of UFC Que Choisir, La quadrature du net, some syndicated artists and the ISOC.

On March 12th, 2009, the British Featured Artists’ Coalition has expressed its opposition to the principle of the Hadopi law^[23].

Discussion

Olivennes Report

Although consumers association and free software association were audited, it has been claimed that only the point of view of the record industry were taken into account and impartiality of the report has been disputed due his conflict of interest with the record industry^[24]. Biais on the repressive side has been also claimed by considering that, 71% of the report of dedicated to the presentation of repressive measure, while the improvement of the legal offer exposure is the objet of only 8% of the report with 5% of the report concern the problematic ^[25].

More controversial is that the report assumes every single illegal download as a direct loss of income for the copyright holder. this statement is not proven, and indeed is seriously questionable by many studies^[26]^[27]^[28]^[29]^[30]^[31] concluding that file sharing have a small impact on the loss in income of the record industry. Nevertheless this unfunded assumption has been recurrently used by the proponent of the law (as illustrated on the government website [5]

Olivennes Agreement

Thought The Olivennes Agreement were signed between the ISP and the entertainment industry at the Elysee palace ^[32], no consumer association, no performer artist syndicate signed the agreement. Google and Dailymotion refused to sign this accord^[33]. In addition, most of the ISP have denounced the agreement afterward^[34].

CNIL opinion

Due to the nature of the bill, the french national commission for the protection of Information privacy (CNIL), opinion has been seek for consultative purpose by the government on March 27th, 2008, through the Ministry of the culture. The opinion then expressed in the communication 2008-101^[35] on April 29th, 2008, supposed to be confidential, has been leaked to the newspaper La Tribune and confirmed by the CNIL president^[36].

In its communication, The CNIL observes that:

the only motivation expressed by the government in favor of the bill is the preservation of the entertainment industry revenue.
there is a lack of study demonstrating that the P2P file exchange is responsible of revenue loss.
The Internet connection could not lead to the lost of television and telephony service.
The screening of internet activities imposed by law by employer on their staff can lead to dangerous situation
The providing of personal data to HADOPI officers seems to be a violation of the right to privacy.
The Hadopi can require the screening of personal data (art. L. 34-1) , this outside of legal judicial procedure, considered as essential by the Constitutional Council of France.
The claimant, will be able to use 3 laws to sue a suspect, the Hadopi law, and the CPI law according two disposition, one applicable beyond a civil court (art. L331-1), another one beyond a penal court (art. L335-2).
The frontier between piracy and screening of Internet network is not clearly established.
The 3-strike answer is not an obligation, but just an option provided by the bill.

and conclude that the bill doesn't provide enough warranty in order to ensure a fair balance between the respect to privacy and protection of the copyright.

Relevance to decree the State of Urgency for the legislative process

Though, often used by the government, the relevance of it is questioned, since this bill is not aimed to bring the French Law code into compliance with an European directive or any other engagement specify by treaty, and per sei, there is no schedule to comply with. So the only reason seen by law's opponent is to limit the debating sessions prior the vote of the bill.

Fundamental right issues

One can consider the right to have an internet access as a fundamental right, noticeably as defined by the Charter of Fundamental Rights of the European Union.

The Telecoms_Package#Amendment_46_.28previously_138.29 to the Telecoms Package discussed at the european parliament on 21 April 2009, prevent explicitly the privation of fundamental right without a prior ruling by the judicial authorities.

The current government opinion is that first, the HADOPI can be considered as a judicial body since it has some magistrates in his composition; secondly, the access to internet is not a fundamental right. One note that the government had taken preventive action against the vote of this amendment.

One can consider that the privation of a service still billed constitute a "double sentence" disproportionate in regard of the offense.

One can consider that the suspect being requested to bring the charge of the proof, constitute a violation of the presumption of innocence.

The law, encouraging companies to survey the internet traffic of third parties, is considered as a violation of privacy, more noticeably by the CNIL ^[37].

Technical issues

The Minister of Culture is expecting 10000 e-mails, 3000 mails with a receipt and 1000 disconnections a day^[38], what is considered by some as too much too handle properly by HADOPI as currently constituted.
The suspect of copyright infringement, will be unable to contest before the connection is cut off. The recourse to court will not lead to a suspension of the sanction^[39].

The law punish the connection owner, not the copyright violator: whole family can be punished for suspicious behavior of a single member of an household. WiFi hot spot owners will be responsible for the behavior of their clients.

An IP address can be faked or added to any P2P server^[40]. The method of IP collection is uncertain and the number of false positives could lead to wrong accusation, the defendant having no recourse to contest the sanction before to late.

Most French Internet modems are delivered with activated Wifi features. Most people are not aware of the steps needed to secure their WiFi access points which can require some technical skill beyond average user knowledge ^[41]

The real piracy is the fact of technically skilled individual able to evade detection (usage of encrypted and/or anonymous P2P network, computers rented abroad, servers for large files (Megaupload), streaming (and sharing) media service (like last.fm, deezer, youtube, Dailymotion) etc.

Defeated purpose of diffusion of the arts?

the heavy emphasis on the criminalization of the internet user behavior defeats one claimed purpose of the law, which is the diffusion of the creation on Internet:

While the piracy could suggest a loss of income for some artists, the right balance between diffusion of the art and the protection of author rights, which very own raison d'etre is the promotion of art (as stated eg. by the USA constitution) by providing a fair compensation to the artist and not for sole purpose of artist enrichment, could suggest we should accommodate this new behavior rather than fight it at the expense of the promotion of art.

In addition of a cost of 6.5 million Euros for the state, the implementation of this law will have a cost estimated at 100 million Euros for the ISP^[42] which will be passed onto the consumer, preventing a larger penetration of internet, hence access to creation through this medium will be restrained.

The additional cost will neither benefit to the arts, since no provision for additional financing for the development of arts is planned by the law (like through a Global Licensing method).

Questionable philosophy

The heavy emphasis on the criminalization of the internet user as encouraged by the law has discouraged discussion of alternative models, like a Global license or a creative commons license. The current copyright law reserves all rights to the holder and can lead to the extinction of content in numerous case, since it can be very complex and costly to retrieve all copyright holders on a content; this is required for a legal copy for purpose of preservation by a library for example.

The law can be seen more as a means to grant to an established entertainment industry the persistence of its business model; based on a technical innovation, the physical record which has became obsolete. Instead, later technical progress should call for a new business model. The idea was developed by Paul Krugman^[43] as well as the philosopher Jacques Attali in an interview on HADOPI^[44] in French.

However, it has been noticed sometimes, this law was essentially defended by the old guard of an industry unable or unwilling to question their business model, and age of its defendant was sometimes underlined, as an open letter to the Le Monde co-authored by a group of artists with an average age of 71, led by Pierre Arditi ^[45] in French.

Manichean argumentation

The law is presented as an anti-piracy law, so to be against the law is

to be for the piracy.
to be for free cultural access, prevent compensation of the artists, which at term kill the culture.