HADOPI law

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

Despite strong backing from the President, the bill was 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 and it was adopted on May 12 2009 by this assembly^[5], and May 13 2009 by the French Senate.

The debate around the law has involved accusations of dubious tactics, notably against the promoters of the law. The content of the Government promotional website does not reflect the wording of the bill^[6], while the French Wikipedia pages relative to HADOPI, have been falsified from the Ministry of the Culture Office on February 14 2009.^[7], and a "petition of "10000 artists" in support of the bill was challenged as numerous signatures are proven to not come from people exercising any artistic activities described by the petition, to belong to non-existent people, or artists who denied to have signed at all^[8].

On June 10, 2009, the Constitutional Council of France struck down the central, controversial, portion of HADOPI, that would have allowed sanctions against internet users accused of copyright violations (as opposed to being convicted for same), ruling that because "the Internet is a component of the freedom of expression" and "in French law the presumption of innocence prevails", only a judge can impose sanctions under the law.^[9][10]

On October 22, 2009, the Constitutional Council of France approved a revised version of HADOPI, requiring judicial review before revoking Internet access, but otherwise resembling the original.^[11]

Contents 1 Bill of law content 1.1 Government agency 1.2 Mandate 1.3 Enforcement method 1.4 Internet content provider 2 Legislative process 3 Background 4 Lobbying 4.1 Pro law 4.1.1 Head of state 4.1.2 French government 4.1.3 Entertainment industry 4.2 Against law 4.2.1 Consumer association 4.2.2 Others association 4.3 Political groups positions 5 Discussion 5.1 Olivennes Report 5.2 Olivennes Agreement 5.3 CNIL opinion 5.4 Relevance to decree the matter of urgency for the legislative process 5.5 Fundamental right issues 5.6 Technical issues 5.7 Defeated purpose of diffusion of the arts? 5.8 Questionable philosophy 6 See also 7 References

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^[12].

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 (Superior Council of the artistic and literature property), a government council depending on the French Ministry of Culture^[13]. The agency is vested with power of police on the Internet user.

Mandate

it is essentially to control that the internet subscribers screen their Internet connections in order to prevent the exchange of copyrighted material without prior agreement from the copyright holders (Art. L. 336-3 of the bill). The HADOPI inherit also of the mandates previously attributed to the ARMT.

Enforcement method

On claim or denunciation of copyright holders or their representatives, the HADOPI starts the first step of a so called optional '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 a filter on his or her own connection.

Whether a repeated offense is suspected by the copyright holders, their representatives, the ISP or the HADOPI, in the 6 months 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 ISPs are prevented to provide him or her 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 two steps of the procedure, and the last step is not stoppable by judicial recourse. The charge of the proof is on the connection owner.

According to the CNIL, pursuit under the Hadopi law, doesn't prevent further pursuit under the French code of Intellectual Property^[14], noticeably under its articles L331-1 or L335-2 and Appreciation of pursuit under a law or another is let to the claimant (see #CNIL opinion).

Internet content provider

Search engines must reference only proven legal material,^{[citation needed][clarification needed]} which is obtained by certification by the HADOPI.

Legislative process

• The bill of law is presented to the French Senate by the government on June 18, 2008.
• On October 23, 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 30, 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 2, 2009.
• Since the text of the bill approved by the 2 legislative chamber is different and in agreement with the matter of urgency relative to the bill, a parliamentary commission gathering 7 members of the Senate and 7 members of the National assembly is constituted on April 7, 2009, and is mandated to produce a common text to be voted by the both chambers without preliminary debate.
• The bill produced by the parliamentary is adopted by the Senate on April 9, 2009, at the unanimity of the present senators including the one of the French socialist party (vote is by hand and not recorded).
• The same bill is defeated by the National Assembly on same day, by 21 nays against 15 yeas, all from he Union for a Popular Movement party. defeat was essentially result of franc-tireurs socialist MPs action taking advantage of absenteeism in the lower chamber (the French socialist party was rather in favor of the law).Those MPs have later explained themselves in an open letter to the newspaper Liberation in name of all socialist MPs^[15].
• Following the defeating of the bill, and on request of the government, the bill has been represented to the National Assembly for new lecture on April 29 where it was the object of 499 amendment, mostly rejected^[16]
• The bill is adopted by the National Assembly on new lecture on May 12, 2009, by 296 yeas against 233 nays. All present French socialist party members voted nay except Jack Lang
• The Senate voted in favor of the bill on May 13, by 189 yeas against 14 nays, the senators of the socialist party abstained at the exception of Samia Ghali.
• On May 17, members of the National Assembly contested the constitutionality of the law and submitted it to the constitutional council for examination.
• On June 10, the constitutional council declared the main part of the bill unconstitutional, therefore making it useless. The council found that the law violated the 1789 Declaration of the Rights of Man and of the Citizen, and in particular presumption of innocence, separation of powers and freedom of speech.

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 the crime of lack of screening of Internet connections in order to prevent exchange of copyrighted material without prior agreement from the copyright holders (art. L335.12)^[17] . 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 ^[18], 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 not yet been 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^[19]. 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^[20].

Lobbying

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

Pro law

Head of state

On October 4, 2008, The Head of State, Nicolas Sarkozy, supporting personally the law, has interceded to the president of the European Commission, toward the non scheduling of the then Amendment 138 (see 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 propaganda website to receive backing of preeminent actors of the french entertainment industry. The content of the website does not reflect the wording of the bill, and eventually can be considered as misleading by some ^[21].

The French Wikipedia pages relative to HAPODI, have been falsified from the Ministry of the Culture Office on February 14 2009^[22]

On May 7, 2009, intimidation methods against bill of law opponent have been discovered through the Jérôme Bourreau-Guggenheim affair, revealed by the newspaper Liberation ^[23] : On action of the ministry of Culture office director, Christophe Tardieu, Jérôme Bourreau-Guggenheim has been dismissed of its company, the main french TV broadcaster, TF1, on April 16, 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. ^{[24][25][26][27]}

Entertainment industry

The SACEM, with other entertainment industry players have published a petition of "10000 artists" in support of the HADOPI law. The list has been challenged as numerous signatures have been alleged to be coming from people who do not exercise the artistic activities described by the petition, while others have been alleged as being altogether ficticious, like Paul Atreides^[28]. Some artists whose signatures appear in the petition have denied that they support it.^[29]. This petition has been recurrently used by the proponents of the law.

Against law

Consumer association

The leading French consumer association UFC Que Choisir has positioned itself against the law^[30] and has set up a website to support his lobbying action, ca-va-couper.fr[4] (site created on May 29, 2008)

Others association

A group called La Quadrature du Net^[31] is probably the main lobbyist against the law.

Following an open letter in the newspaper Liberation^[32] published on May 7, 2009, and co-authored noticeably by Victoria Abril and Catherine Deneuve, an informal group has been constituted under the name Creation Public Internet^[33] and is composed of UFC Que Choisir, La quadrature du net, some syndicated artists and the Internet Society.

On March 12, 2009, the British Featured Artists Coalition has expressed its opposition to the principle of the HADOPI law^[34].

Political groups positions

With the exception of the French Green Party who campaigned against the law, other political groups represented in the legislative chambers were not active lobbying for or against the law, though individual members did so. The French Socialist Party was probably the most divided. While it initially favored the law (voted yea in first lecture at the Senate), it was chiefly responsible for the surprise rejection of the bill after the first lecture at the National Assembly as well as requesting the Constitutional Council's ruling.

Discussion

Olivennes Report

Although consumers associations and other associations 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 on ground of conflict of interest with the record industry^[35]. Bias 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 object of only 8% of the report with 5% of the report concern the problematic ^[36].

More controversial is that the report assumes every single illegal download as a direct loss of income for the copyright holder. this assumption is not proven, and indeed has been questioned by the CNIL (see #CNIL opinion), while it is contested by many studies^{[37][38][39][40][41][42]} concluding that file sharing have a small impact on revenue loss 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

Though The Olivennes Agreement were signed between the ISPs and the entertainment industry at the Elysee palace ^[43], no consumer association, no performer artist syndicate signed the agreement. Google and Dailymotion refused to sign this accord^[44]. In addition, most of the ISP have denounced the agreement afterward^[45].

CNIL opinion

Due to the nature of the bill, the government seek the opinion of the CNIL, the french national commission for the protection of Information privacy, on March 27, 2008, through the Ministry of the culture. The CNIL answered in the confidential communication 2008-101^[46] on April 29, 2008. The communication has been leaked to the newspaper La Tribune and confirmed by the CNIL president^[47].

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 french code of intellectual property according two disposition, one applicable beyond a civil court (art. L331-1 of the code of intellectual property), another one beyond a penal court (art. L335-2 of the same code).
• 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 concludes 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 matter 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 Amendment 138, at the time of vote, 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 (see Telecoms_Package#Amendment_46_.28previously_138.29).

The current government opinion is that first, the HADOPI can be considered as a judicial body since it has some magistrates in its 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, as exposed in #CNIL opinion.

Technical issues

• The Minister of Culture was planning on sending 10000 e-mails, 3000 certified letter and 1000 disconnections a day^[48]

• The suspect of copyright infringement would have been unable to contest before a sanction was pronounced. Appealing to a bona fide court of law would not have suspended the sanction^[49].

• The law punishes the connection owner, not the copyright violator: whole family could have been punished for the infringing behaviour of a single member. WiFi hot spot owners would be responsible for the behavior of their users.

• The method of IP collection is uncertain and the number of false positives could lead to wrong accusations, the defendant bearing the burden of proving his innocence, and having little time to do so before the disconnection were to be enacted

• 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 ^[50]

• Evading the system would have been easy for technically skilled users

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^[51] 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 French code of Intellectual Property grants remuneration to copyright holders for private copying, via a levy that the French State imposes on any device able to store media content (disregarding their purpose or final usage) to the benefit of the copyright holders.^[52] It is argued that charging a levy for a behaviour banned by another article of the law is hypocrisy.

• 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^[53] which is also defended by the singer Peter Gabriel^[54] and by the philosopher Jacques Attali ^[55][56].

• 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 ^[57] in French.

See also

• Three strikes (policy)
• Copyright aspects of downloading and streaming
• Music download
• Digital Economy Bill

References