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French pass 'three strikes' file-sharing law

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Along the way, the debate has excited a degree of passion amongst the main protagonists. The author of the law and its primary supporter in the Assembly, Culture Minister Christine Albanel has repeatedly accused those who download illegally of being "pirates". This got up the nose of Socialist Deputy Christian Paul, who proposed that the word "pirate" be henceforth banished from debate on the internet. The worst crime that individuals could be accused of, he said, was "counterfeit" (contrefaçon).

Meanwhile, the tax status of tarnished French media idol Johnny Hallyday led to an amendment that will forever after be known as the "Hallyday clause". Having made a fortune in the French film and music scene, Johnny Hallyday now lives in Switzerland, where he manages to pay the absolute minimum of taxes due on earnings from his works in France.

The "Hallyday clause" therefore stipulates that illegal downloading where the author of the downloaded work resides in a tax haven – or is otherwise avoiding the proper payment of taxes – will not be subject to the same sanction as it would otherwise attract.

There is still the small issue of whether the law itself is legal. Nicolas Maubert, an attorney with law firm Gide Loyrette Nouel, has argued that the law might still be challenged by France's judicial body, as blocking internet access could breach constitutional protections guaranteed by the French Constitution.

A further obstacle to the loi Hadopi may yet be the European Parliament, which this week voted to guarantee internet access to all citizens as a fundamental human right.

Even if there are challenges to the ultimate sanction – cutting an individual off from the internet – the Hadopi still has the power to exact fines, pass injunctions and set down other penalties.

So even if being deprived of the internet is not absolutely guaranteed, French surfers who persistently download content illegally could soon find themselves in the same position as 26-year-old postman Sébastien Budin, who was fined 130,000 Euros in March for running a website that allegedly encouraged others to file-share and participate in illegal downloading.

His crime was to run a site called stationdivx.com, on which he had plaed various film files as well as passwords that could be used to access commercial download sites. A Lyon court was not amused, although Budin is still protesting his innocence. He said: "I am not a law-breaker. I was inciting people to download, but I did not make films available to them. I am revolted at the hypocrisy of this judgment. You can find the same passwords on Google."

It seems likely that this will be by no means the last such case to emerge from France in the months ahead. ®

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