Original URL: http://www.theregister.co.uk/2009/04/03/french_three_strikes/

French pass 'three strikes' file-sharing law

Oh merde

By Jane Fae Ozimek

Posted in Media, 3rd April 2009 12:38 GMT

In a decision that is likely to alarm file-sharers worldwide, an almost empty French National Assembly has finally voted through its "three strikes law" designed to clamp down on file-sharing and illegal downloads.

This was despite the guerilla warfare waged against these proposals over the last few months by a handful of Deputies on the right (Lionel Tardy, Alain Suguenot), centre (Jean Dionis du Séjour) and left (Christian Paul, Patrick Bloche, Martine Billard). A clearly scandalised Jean Dionis du Séjour railed at the poor attendance for this key measure, as, he claimed, just one in forty deputies bothered to turn up for the final debate.

The provisions are included in a law on the distribution of works and the protection of rights with respect to the internet. The law is also referred to as the loi Hadopi, because it creates a "High Authority" (Haute autorité pour la diffusion des œuvres et la protection des droits sur Internet), which will in future be charged with monitoring and regulating the use of the internet in France.

The principle behind the law is simple. Anyone suspected of illegal downloading of material on the internet will receive two letters: a first and a second warning. The first warning will recommend that the user check to make sure that no one is surfing on the back of an unsecured Wi-Fi connection: but it will also point out that it is the subscriber’s responsibility to make sure their net access is properly safeguarded.

Being hijacked will not be an excuse in the eyes of the law. If the user chooses to ignore the first letter, and they are detected illegally downloading material within the next six months, a second letter may follow.

Finally, if illegal downloading occurs within the year following the second letter, the Hadopi can then decide to suspend internet access for a period of time ranging from one month to a year.

The ultimate decision rests with the Haute Autorité, which may cut off subscribers - but does not have to. This is because the government does not wish to see businesses and institutions placed in a position where a national enterprise could suddenly find itself deprived of internet access because of the illegal activities of one or two of its managers.

This apparent double standard has already led some Deputies to express concern.

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. ®