SAN FRANCISCO — France has made itself the center of a worldwide controversy over how far governments should go to protect copyrighted works from being illegally downloaded over the Internet.
The government of President Nicholas Sarkozy is poised to enact a law that would cut off Internet access for up to a year for any French national caught making three illegal downloads of music, movies or books. The measure has provoked intense debate, and not just in France. In the European Union, disagreement over the French proposal has temporarily derailed the passage of legislation to reform Europe's telecommunications landscape.
The law titled “Creation et Internet,” but dubbed “three strikes,” is currently being reviewed by France's Constitutional Council, which has a month to make a decision. If it allows the law to take effect this summer, French Culture Minister Christine Albanel has reportedly estimated that authorities could cut off 1,000 Internet connections a day once enforcement gets underway.
Wendy Seltzer, a fellow with Harvard University's Berkman Center for Internet and Society, said the French law is the first to require Internet service providers to cut off access based on accusations of illicit downloads. At present, copyright owners generally have to file civil lawsuits to enforce their rights and recover damages from abusers.
“The people watching this most closely are the entertainment companies that are hoping this will be a model for other governments,” she said.
The International Federation of the Phonographic Industry, the London-based organization that represents music publishers in 72 countries, praised Sarkozy's initiative. “The new French law takes the right approach and sets an example to the rest of the world,” the group said.
The group recently estimated that "over 40 billion files were illegally file-shared in 2008," or about 95 percent of all music downloads. But in some nations the phenomenon may have peaked. A 2007 article on global consumer values published in the International Journal of Business Research suggests that illegal file sharing is leveling off in the United States, and declining in the United Kingdom, Germany, France, Sweden and Japan, owing to factors ranging from the availability of legal downloads to fear of legal action. Elsewhere, however, the piracy trend seems to be on the rise, the report said.
In France the law is also known as HADOPI, the acronym for the government agency — Haute Autorite pour la diffusion des œuvres et la protection des droits sur internet — that it would create to enforce the copyright protection regime.
Jeremie Zimmermann, director of the Paris-based advocacy group, La Quadrature du Net, said opponents still have some hope the law will be invalidated by the Constitutional Council, a quasi-judicial body whose members include former French presidents Jacques Chirac and Valery Giscard d'Estaing. “Parts of the law are much too obviously unconstitutional and would create a very dangerous precedent,” Zimmermann said.
Among other things, opponents say HADOPI should not be allowed to cut off Internet users after a third accusation of illegal downloading, without a judicial determination of guilt. This issue of judicial review has become a European-wide controversy after French representatives persuaded EU officials to include language in a telecom reform bill that would have supported HADOPI's powers.
But the European Parliament rebuffed the French initiative and its own leadership by voting 404 to 56 to amend the telecom reform bill to disallow any nation from disconnecting citizens' Internet service unless they have first been found guilty in court. The disagreement has delayed passage of a telecom bill two years in the making and forced European authorities to look for a way to separate the Internet cutoff issue from the rest of the bill.
The Sarkozy government has taken heat for pushing HADOPI. In one embarrassing episode, a senior web designer at a French television firm was fired after emailing his parliamentary representative to express his opposition to the law — a scandal that was dubbed HADOPIgate after it was revealed that the Ministry of Culture had played a role in the events leading up to his dismissal.
Why has Sarkozy dug in his heels on the issue? A report in the Economist magazine says the French president first met his wife, model/musician Carla Bruni, at an anti-piracy event that “led directly to the HADOPI law.” Art Brodsky, spokesperson for the U.S. advocacy group Public Knowledge, says the French government has traditionally been protective of its entertainment industries.
Passage of the French three strikes law comes on the heels of a Swedish court's conviction of the founders of a file-sharing site called The Pirate Bay. A court in Stockholm recently sentenced four men to one-year jail terms and fined them $3.6 million for their complicity in illegal music and movie downloads. The Motion Picture Association of America called the Pirate Bay case “an important decision for rights holders.” The defendants have appealed the verdict and vowed to continue their activities using file servers outside Sweden and an anonymous registration system that would screen the identities of the site's users.
Meanwhile, the three strikes law awaits the issuance of cancellation notices and the public reaction which will determine whether it proves to be a French quirk or the harbinger of things to come.
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