France Makes Attempt to Stop Internet Piracy

[A Black Falcon]

Between legal questions and the fact that it won't work, let's just hope it never gets enacted... not that it'd actually stop piracy even if it was.

http://www.nytimes.com/2009/04/09/busine...f=business

France Tries to Limit Internet Piracy

By KEVIN J. O’BRIEN
Published: April 8, 2009

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.