Ignorance, legislative stupidity, and the French three-strikes piracy bill


— 11:00 AM on April 3, 2009

Yesterday, French MPs approved a portion of a new copyright bill that would see suspected online pirates get their Internet access disabled after two warnings. I'm sure many of you couldn't care less about French law, but the "three strikes and you're out" approach to online copyright law enforcement seems to be spreading like wildfire. It's already generated interest (and sometimes more) in Britain, Ireland, Italy, New Zealand, and South Korea. If the RIAA had its way, Americans might soon face similar measures.

In theory, I have no qualms with Internet service providers giving recidivist pirates the boot. Hey, if one of your customers is screwing around and getting you in trouble, you shouldn't have to put up with it. However, the French proposal—and what some other governments hope to implement—is considerably more insidious, dangerous, and fundamentally misguided.

Here's how Christine Albanel, France's Minister for Culture and Communication, wants things to go down:

  • The government creates a new independent regulatory agency called "HADOPI." The name means something like "High Authority for the Distribution of Works and the Protection of Rights on the Internet."
  • Copyright holders monitor the Internet and supply HADOPI with the IP addresses of suspected pirates.
  • HADOPI contacts ISPs to obtain the identities of users with flagged IP addresses.
  • First-time offenders get an e-mail warning from HADOPI. Second-time offenders get a warning through certified mail. Third-time offenders get their Internet access cut off for two months to a year—although they can reduce that to one month if they swear not to do it again and not to fight the sanction in court.

But that's no big deal, right? You could just sign up at another ISP? Well, no. HADOPI would effectively blacklist alleged repeat offenders, preventing them from purchasing Internet service as long as their suspensions are effective. According to Le Figaro, Mrs. Albanel claims users could avoid having their net access cut off if they installed software that blocks "certain sites and programs that let one download [copyrighted works illegally]."

Now, anyone with the slightest bit of technical knowledge should be able to see at least several flaws with that system:

  • First of all, users are presumed guilty until they, somehow, prove their innocence. I don't think Mrs. Albanel has clearly stated how someone wrongly accused would go about convincing HADOPI that he didn't pirate Saw IV. Can you imagine a technically illiterate small-business owner or grandmother faced with their second warning? What are they supposed to do, exactly?
  • Let me say that again: you're presumed guilty until proven innocent. Universal Declaration of Human Rights, anyone? No? Okay...
  • Because Wi-Fi networks—and tools for breaking into them—are so widely available, pirates could easily use the connection of a neighbor or nearby business to download the latest Evanescence album or Nicholas Cage movie. That brings us back to my first point.
  • Mrs. Albanel suggests owners of public Wi-Fi networks aggressively secure them and use (presumably government-supplied) filtering software to block pirate sites, but that's hardly a realistic solution. Large-scale web filtering doesn't work in China, and it wouldn't work in France—whether mandatory or not. Some legit sites would be mistakenly blacklisted, while some pirate sites would slip through the cracks. And pirates would find workarounds.
  • Similarly, since the French government wants to give copyright holders free reign to get as many suspected pirates off the net as possible, a number of innocent users would receive warnings because of simple false positives. Oh, and according to a 2008 paper by the University of Washington, "practically any Internet user can be framed for copyright infringement today." That paper describes how the University eventually received a DMCA notice for a printer's IP address, too. Awesome.

That's not even going into the ridiculous costs of implementing these measures. One article by Numerama points out that identifying users through IP addresses would cost HADOPI €8.50 a pop, which would induce yearly costs of €31 million ($41.7 million) if the agency sends 10,000 warnings a day (a figure the president of the ARMT suggests). Another Figaro article says the government would also have to pay for new ISP billing systems needed to implement the law, which would cost about €70 million ($94.3 million). In other words, taxpayers would pay dearly for measures that could see their Internet access unjustly disabled, all theoretically to pad the bottom lines of copyright holders. I say "theoretically" because folks who pirate music and movies now aren't necessarily going to go out and buy them when their Internet access gets cut off. Most likely, they'll either buy less content or find other piracy avenues—like good old DVD and CD burning.

I suppose I should refrain from making this blog post too politically loaded, but this three-strikes bill is so absurd, so reprehensibly stupid, and so obviously flawed to anyone with even the slightest bit of technical knowledge, I just don't see how France's majority party (not to mention the French president himself) can still back it. Twice now, the European Parliament has approved legislation to make such "three strikes and you're out" measures illegal, yet the French government seems to be going full steam ahead.

What bewilders me most is that a nation so fond of public protests hasn't reacted more strongly. I mean, French college students have been on strike on and off for the past couple of months over the latest university reforms. If students all over the country—who, need I remind you, receive their education practically free of charge and get government benefits to boot—have no qualms about mass strikes, where's the mass public uproar over this bill? We're talking about a country with 66% Internet penetration and the world's fifth largest economy here; it's not like the French are too busy making baguettes and cheese to care about the Internet.

As some of you might know, I currently reside in France and work online, so this proposed legislation could be particularly troublesome for me. Now, I make a point to purchase music, games, and movies whenever possible. However, I'm currently forced to resort to BitTorrent to download TV shows, because sites like Hulu and ABC.com block access to users in Europe, and I have no interest in watching French-dubbed versions of previous seasons available here. Some music just isn't available through legal download sites, either.

Since this legislation wouldn't resolve those little conundrums, I'd have to stop watching a good chunk of U.S. TV just to keep my job. Or perhaps I'd have to subscribe to a VPN service to cloak my online activities from prying eyes. In either case, though, I could still get flagged as a pirate because of some record company's screw-up. And what then?

People are always going to pirate copyrighted content. That's just the way it is, and you can't curb it through mass lawsuits or absurdly repressive government legislation. Copyright holders like the MPAA, RIAA, and their foreign equivalents just need to realize two things: one, piracy doesn't automatically translate into lost sales. If a broke college kid downloads a new movie every night, it's only because he can do it for free. Two, people with money—you know, actual potential customers—will favor legal avenues if they're simpler and faster than piracy. Imagine if, the day a movie comes out in theaters, it's available online in HD format for the price of a movie ticket or slightly less. Are gainfully employed consumers really going to bother hopping on BitTorrent to download shaky-cam rips from Eastern Europe?

   
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