Hadopi Approach Said Waning and Unlikely to Spread to Other Countries
Hadopi, the French anti-piracy body created by the controversial law on creation and the Internet, is facing budget cuts amid growing criticism that it’s too expensive and ineffective. The institution, dedicated to distributing protected works and safeguarding digital rights, enforces a gradual response system in which suspected infringers first receive warning emails and letters, then can be prosecuted, and, finally, face Internet cut-off. Graduated response, or “three-strikes,” has been held out as a model that other countries could use against illegal downloading. Given Hadopi’s problems, it’s hard to believe other nations will pursue it, said digital rights activists. The body may survive in France, but under a new merged regulator akin to the Office of Communications in the U.K., said Hogan Lovells (Paris) media and communications lawyer Winston Maxwell.
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The government is seeking comment on a new approach to online copyright infringement based on evidence that Hadopi hasn’t slowed unlawful downloading and is too pricey. The administrative body reportedly has cost 12 million euros ($15 million) since its inception and has 60 agents. Reports said it has issued about a million warning emails and 99,000 registered letters, resulting in only 134 cases being filed and no Internet access terminations.
The inquiry is led by businessman Pierre Lescure, whose report is due in six months. It will suggest solutions, but the government is also thinking about merging telecom regulator ARCEP and audiovisual regulator CSA, Maxwell said. One possibility is that Hadopi’s regulatory function will be given to the new merged media/telecom authority, he said. That model is used in the U.K. where, under the Digital Economy Act, Ofcom is in charge of making rules for Britain’s graduated response regime, he said. Such a regulatory restructuring might make sense in France, “but it would take years to implement,” he said. “So Hadopi won’t be going away anytime soon,” he said in an email.
Any decision on Hadopi’s budget will have to wait until the conclusion of the Lescure report, said a spokesman for the International Federation for the Phonographic Industry. He said Lescure has said publicly that he thinks Hadopi “has its uses and an element of sanction should be kept, so he may have a different view” from the French culture minister who’s reported to have called the body unwieldy and uneconomic. IFPI and its French national group SNEP think the institution has done a good job and is worth keeping and funding properly, he said.
The fact that the system is ridiculously expensive and ineffective “is not really a surprise to anyone,” said European Digital Rights Advocacy Coordinator Joe McNamee. No other country, with the partial exception of the U.K., was planning to do anything similar, so Hadopi’s demise, if it comes, won’t have much of an international impact, he said. Instead, governments prefer “voluntary” copyright enforcement, using “ramshackle, privatised enforcement systems” which don’t have to incur costs for due process and evidence, he said. Irish ISP Eircom’s three-strikes system is an example, he said.
Hadopi proved that people who share content online spend more for culture, said La Quadrature du Net co-founder Jérémie Zimmermann. That issue isn’t on the table so far of the Lescure mission, he said. Lescure is on record in Le Novel Observateur as saying the principle of graduated response shouldn’t change and that he will focus on sanctions, he said. Because Internet cut-off has never been applied, it’s possible that provision will be removed, he said. If it’s replaced by some other penalty, and if anything other than total withdrawal of the law is decided, the changes “will be cosmetic only,” he said. “You cannot change a bad solution to a false problem, you must attack the definition of the problem itself."
Zimmermann said he doubted other governments would dare to put “stupid/dangerous schemes” like Hadopi in place. For one thing, it’s costly, he said. It also attacks users and is politically perilous, he said. There are now more-evolved forms of enforcement being attempted via the Anti-Counterfeiting Trade Agreement (ACTA) and others, which attempt to program enforcement at the heart of the network by putting pressure on the intermediaries, he said. That’s more dangerous than creating a “dummy administrative authority” because it ramps up the already tremendous powers of some corporate actors and provides justification for deployment of intrusive technologies such as filtering, he said.
Until lobby groups are run by business leaders who believe in their products, rather than lawyers who think politicians and ISPs can solve their problems, there will be more proposals for heavy-handed enforcement measures, Open Rights Group Executive Director Jim Killock said. At least with ACTA and Hadopi, “we are seeing that the lobbyists agenda for enforcement has limits,” he told us by email: Maybe Hadopi’s demise might “herald a slow change towards common sense.”