[Infowarrior] - France Tries to Limit Internet Piracy

[Richard Forno]

France Tries to Limit Internet Piracy
By KEVIN J. O’BRIEN
Published: April 8, 2009

http://www.nytimes.com/2009/04/09/business/global/09net.html?hpw

French lawmakers are poised to approve a law to create the world’s  
first surveillance system for Internet piracy, one that would force  
Internet service providers in some cases to disconnect customers  
accused of making illegal downloads.

The proposal, called the “Création et Internet” and known informally  
as the “three strikes” directive, has won preliminary votes by the  
Parliament and is expected to be approved in both houses Thursday. It  
has support from the governing party of President Nicolas Sarkozy.

The law empowers music and film industry associations to hire  
companies to analyze the downloads of individual users to detect  
piracy, and to report violations to a new agency overseeing copyright  
protection. The agency would be authorized to trace the illegal  
downloads back to individuals using the downloading computer’s unique  
identification number, known as its Internet Protocol, or IP, address,  
which the Internet service providers have on record.

For a first violation, the agency would send a warning by e-mail.

If a user made another illegal download within three months, a second  
warning would be sent by certified mail. If a third infraction  
occurred within a year, the service provider would be required to  
sever service.

Piracy costs the film and music industry in France at least 1 billion  
euros, or $1.3 billion, a year in lost sales, according to industry  
figures.

“This law is definitely overdue and it’s only a fair and proportionate  
response to a major problem,” said Marc Guez, the managing director of  
the French Society of Phonographic Producers, which represents  
recording companies. “Our members are losing more than 500 million  
euros a year in sales.”

While piracy surveillance systems have been discussed in a number of  
countries, the French plan goes farther than the measures under  
consideration elsewhere. On April 1, a law in Sweden called the  
Intellectual Property Rights Enforcement Directive took effect,  
allowing industry groups to more easily prosecute copyright piracy.

In the United States, a Congressional committee this week began  
studying the issue. In a hearing Monday before the Foreign Affairs  
Committee of the House of Representatives, Steven Soderbergh, the film  
director, cited the French initiative in asking lawmakers to deputize  
the American film industry to pursue copyright pirates.

In France, the law has attracted prominent support from the French  
music and film establishment, including Johnny Hallyday, the French  
rock star, and Denis Olivennes, the former chief executive of the FNAC  
retail chain.

The International Federation of Phonographic Industry, a group based  
in London that represents the global music industry, said that 95  
percent of all songs downloaded on the Internet last year — including  
those in France — were illegal downloads. Globally, illegal music  
downloads cost $12.8 billion in sales, according to the group.

While supporters and opponents both predicted that the proposal would  
become law, some lawyers and Internet advocates said the measure would  
face a tougher road before the French Constitutional Council, which  
can invalidate laws that it determines do not conform with the  
Constitution.

One of several controversial aspects of the proposal places the onus  
of proving innocence on those accused, who would only be able to  
protest their innocence after they were disconnected from the Internet.

“It is always hard to predict how the Constitutional Council may rule,  
but this new law does not protect the fundamental right to defend  
oneself,” said Cédric Manara, a law professor at the Edhec Business  
School in Nice.

Winston Maxwell, a media lawyer at Hogan & Hartson in Paris, said the  
legal challenges might delay the measure’s effective date.

“But I doubt the Constitutional Council will decide a French citizen  
has the right to make illegal downloads,” Maxwell said.

Nonetheless, Internet advocates call the French proposal legally  
unsound on the ground that there are inadequate the provisions for  
challenging an action, and because it gives industry groups the power  
to police the Internet. Others question whether the law would unfairly  
penalize those whose wireless broadband accounts are misused by  
others. The French law tries to anticipate this by making it a civil  
infraction for citizens to fail to “secure” their broadband accounts  
by using approved filtering technology.

That burden, theoretically, would fall on public Wi-Fi hot spots.

Nicolas D’Arcy, a spokesman for France’s ISP Association, the  
Association des Fournisseurs d’Accès et de Services Internet, said  
Internet providers were hoping the law would not take effect.

Internet service providers, Mr. D’Arcy said, do not want to become the  
enforcement arm of French justice and do not trust the law to insulate  
them from suits brought by customers whose service has been cut off.

“There are so many things wrong with this,” Mr. D’Arcy said.

Other critics say the law will not stop illegal downloads.

Jérémie Zimmermann, director of La Quadrature du Net, an Internet  
advocacy group based in Paris, said some computer users would turn to  
encrypted downloads and other methods to avoid detection. On  
Wednesday, a Swedish company, the Pirate Bay, began a service called  
Ipredator, which lets users use its virtual private network to make  
anonymous downloads for 5 euros a month.

“The French law will only drive people further underground,” Mr.  
Zimmermann said. “It will make the situation worse.”

Michel Thiollière, the French Senate sponsor of the legislation, said  
the system would probably survive legal review by the council and help  
preserve the rights of French artists, musicians and actors.

“The mechanism is reasonable and a graduated response designed to  
bring Internet users to a new world where the rights of creators must  
be respected,” he said.