The French Hadopi law was created in 2009 as a way to control and regulate internet access. France is the first country to have passed such a law.

This law creates a government agency, la Haute Authorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI), which is the main authority in charge of the enforcement of the new mechanism.

How does it work?

On receipt of a complaint from a copyright holder or representative, HADOPI may initiate a 'three-strike' procedure: The first step is an e-mail sent to the IP address’ owner. This e-mail specifies the time at which the claim was filed, but it states neither the object of the claim nor the identity of the claimant. If the same user commits a second offence during the following 6 months, a certified letter is sent, with content similar to that the originating e-mail. If, during the following year, the offence is repeated, the Internet Service Provider (ISP) is required to suspend internet access to the offending internet user, for a period which can range from two months to one year.

I. Problems with the reliance on IP addresses

The procedure is based on records of IP addresses. As they amount to immaterial evidence, it is not enough to establish the criminal offense of forging. Therefore, the text proposes not to rely on the presumption of forging but on a new offense, that of "failure to secure ones’ connection".

However this expression raises a number of issues.

First of all, the concept of security is a variable, and its adequacy depends on the threat against which you wish to protect yourself. Hence this supposes that HADOPI establish a list of the means which it considers as effective enough to satisfy the obligation of securing the internet connection. But can we really trust this administrative authority, which lacks any computing expertise, to set the security standards for thousands of persons and firms?

Secondly, it will be physically impossible for a user to prove his good faith in securing his internet access when he or she is prosecuted. The only solution in that respect would be the use by HADOPI of spyware to collect and send information about the user’s online activity. This is however an unacceptable solution, as the security and protection of privacy problems which would result from such practice would be considerable, and un-reconcilable with the rule of law.

Moreover, the utilisation of the IP addresses raises the question of who really use them address, and how. The French law penalises the owner of an IP address without regard to whether this person is in fact the one who committed the offence. But we know that nowadays, it is relatively easy to modify an IP address or to use somebody else’ IP address without possessing any particular computing skills. I believe that this law cannot be efficient because hiding an IP address is no longer the sole prerogative of IT experts. For example, it is possible to use relay servers located in other countries (or rent one for a low price) or to use software which makes connections anonymous and encrypts them.

Finally, this law can be criticized with regard to its potential impact on individual liberties. HADOPI is merely an administrative entity, and relies on private agencies to carry out the technical aspects of enforcement. This means that the data collected during the process is recorded by these companies. But how can we be sure that these private actors will not use the IP addresses for another purpose, or that HADOPI will not create a “black-box” of the downloaders?

II. Problems with the construction of the law itself

The major problem in the HADOPI law is that it has been enacted by people who did not know anything about computing. This law focuses on very technical issues. It should not possible for people without any knowledge in the relevant field to create and pass a law which will have a huge impact not only on the future of internet computing, but also on individual liberties.

The drawbacks of this lack of expertise can be seen in the potential consequences of the wording chosen by the members of Parliament. The law refers to “communication électronique” (electronic communications), a term which, under French law, covers a lot more than illegal downloading. The first branch of electronic communications is directed at private correspondence, such as emails. The second branch consists of communication to the public through electronics means, which itself encompasses both online communication and online broadcasting. The use of this term means that an internet user must not only concern himself with preventing any illegal use of P2P? or web access (ease of access, etc.), but must also ensure that no ‘copyright infringement’ is committed via private correspondence on his network. This goes against a fundamental liberty, the right to the secrecy of private correspondence, even though this right is of constitutional value under French law.

Another disturbing aspect of this law is that it is supposed to protect the artists but the artists themselves have no standing before HADOPI. Can it still be said that this law seeks to protect the artists’ rights?

In conclusion, we can say that this law is an impediment to the sharing of knowledge and to the development of arts. Some artists, who lack the financial means to have access to a record label, broadcast their music thanks to the internet, and rely on downloading to achieve fame and success for example, the band Arcade Fire).

The economic aspect of the problem, the protection of an industry, seems to have dictated the actions of Parliament, over cultural issues. Instead of supporting a system, a cultural economy which has shown its limits and is on its deathbed, which was sometimes the censor, which restricts the accessibility of culture and suppresses numbers of arts and artists, isn’t the opportunity to consider other ways to promote the arts, their emergence, their accessibility?

As Balzac said in La Cousine Bette, “le travail constant est la loi de l’art comme celle de la vie” (continuous work is the law of art, as much as that of life). This expresses the idea that arts, and music in particular, will always exist because it is an essential part of our humanity. Laws and corporations which seek to restrict creation and diffusion will, in the end, always fail, as they cannot succeed in suppressing something so inherent to all societies. We can only hope that government and those who are meant to represent us come to recognise the truth of this, and give us our freedom back.

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-- By MarciaGivord - 20 Oct 2011

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