HADOPI: THE LAW OF MONEY AND LOBBYING

HADOPI: What a nice name for an incongruous and liberty killing law! The French Hadopi law was created in 2009 as a way to control and regulate internet access. This law has constantly been criticised since its enactment.

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

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 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 similar letter is sent by certified 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.

Thus, HADOPI is based on two principles: exclusive private property, “what is mine, is not yours”, and fear of repression.

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 offence of forging. Therefore, the text proposes not to rely on the presumption of forging but on a new offence, 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 entity, composed of IT-ignorant bureaucrats, to set the security standards for myriads 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 is prosecuted. The only solution in that respect would be for HADOPI to have recourse to 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 uses the address, and how. French law penalises the owner of an IP address without regard to whether this person is in fact the one responsible for committing the offence. It seems absurd to ask one person to ensure that no one can use his IP address, as it is common knowledge that nowadays, it is relatively easy to modify an IP address or to use someone else’s IP address without any particular computing skills.

Finally, this law can be criticised 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. But how can we be sure that these private actors will not use the IP addresses for purposes other than those set forth in the law, or that HADOPI itself will not create a “black-box” of downloaders?

As for all technologically impaired « Enarques » (inbred politicians), instating a brand new yet outdated working group, getting incomprehensible laws passed, annoying as many citizens as possible, all of this is to them a challenge, a bet, a comprehensive work the success of which is not a mere given, a subtle evaluation of the problem coupled with an artfully adapted and modelled solution. And yet again one can only observe the drastic fall of standards. In past generations, we strove for valiant causes, aiming for the Moon, or even at mastering the Atom. Today we feel that sending half-hearted emails to a bunch of acne-prone teenagers so that they will stop downloading soft porn on the internet is a courageous endeavour. You dream of what you can…

II. Problems with the construction of the law itself

The major underlying problem with the HADOPI law is that it has been enacted by people who knew nothing about computing. This law focuses on very technical issues. It should not possible for paper-pushers without the slightest ounce of knowledge in the relevant field to create and pass a law which will have a vast 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 “electronic communications”, which, under French law, covers much 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, but must also ensure that no “copyright infringement” is committed via private correspondence on his network. This goes against the French constitutional right to the secrecy of private correspondence.

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 success, for example the band Arcade Fire. This disregard for the reality of downloading as a new medium of distribution, taken with the artists’ lack of standing before the HADOPI authority, brings to light the shallowness of the lawmakers’ professed intentions. This law does not pertain to the protection of artist and the remuneration of labour, it has been enacted for the protection of an industry, an economic machine which, through lobbying, had dictated the priorities of Parliament.

In the end, HADOPI is like, for a great number of persons, a condensed can of everything that is out of whack in this country .A statement taken from the newspaper Contrepoints rightly defined the situation: HADOPI is “a wholly trivial problem, a molehill made into a mountain by a herd of dinosaurs, greasing the hands of corrupt politicians who offer a twisted and inefficient solution, the application of which only deepens the problem and adds to the general confusion, all in all for an egregiously high price, led by frivolous ignoramus and ridiculous subsidized tadpoles”.

HADOPI

This is a poor way to open. You have not given the reader any idea to consider, or any drama, or in general provided any reason to keep reading. The beginning of an essay is the place at which the reader's interest must be attracted. This won't do it.

Your second sentence is not literally correct: lots of countries have passed laws controlling and regulating Internet access. You mean that HADOPI was the first enactment in the peninsula of Northwest Asia that refers to itself as Europe to specify that people might be prevented from connecting to the Net after a certain number of lightly-demonstrated infringements of certain US entertainment company copyrights. That's true, but you need to explain why it is important, and indeed why it is important enough to be the first thing you say.

How does it work?

Problems with the reliance on IP addresses

This section spends a great deal of time showing that the law is technically deficient when it is sufficient to say it is absurd. Suppose that all people are required to lock their doors tight enough that no one can break into their apartments, or else they are criminally responsible for anything done in their apartment by anyone who breaks in. Will the courts enforce such an insanity according to its literal meaning? Whether it is destroyed outright or merely twisted into nonexistence is a detail. Everyone understands now, as everyone understood then, that this is a profoundly cynical, corrupt bluff on all sides. Industry forces pay politicians to provide them with this outrage, in which the politicians pretend to be doing everything the industry wants and the industry pretends to believe them, and the fucking occurs as scheduled and then the whores are paid. No one expects that this is going to work as advertised, but the industry assumes that when all the dust settles they will have gotten something, at least in terrorem that they would not have had unless they paid the politicians to give them this legislation. The politicians, for their part, know that most of what they have done is going to perish along the way, but they don't believe young people will turn out to punish them at the polls for their unbelievably brazen willingness to give away the rights of Internet users to the corrupt owners of media and "content," and right now, for letting Hollywood fuck them and pretending to like it, they get paid

Problems with the construction of the law itself

But, as we can see, that is not what happens. You can treat this issue, then, as one more cost of the fundamental corruption of government in all the developed democracies by the interests seen on the left as constituting "Empire," the supranational order of ownership. Or you can say that freeing the mind through the realization of the Network's possibilities is the single step that will enable the overthrow of Empire and its replacement by something closer to what we have always struggled for and wanted. There are also many other, equally interesting and productive, positions with respect to the recognition that this is not what happens. What does not seem to be useful, to me, is to end by pretending that what does not happen is what can hope will spontaneously start happening. That conclusion is the one conclusion that does not seem to me to be warranted by any available evidence, and does not make good analytical use of whatever we have managed to learn about the world.

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 they are 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 hope that governments and those who are meant to represent us come to recognize the truth of this, and give us our freedom back.

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.

Paper Title

-- By MarciaGivord - 20 Oct 2011

Section I

Subsection A

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Subsection B

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Section II

Subsection A

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