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Hadopi Becomes un Ballon de Football Politique February 21, 2012

Posted by Bill Rosenblatt in Europe, Law, Uncategorized.
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Those of us who deal with the so-called copyright wars here in the United States can take comfort in one thing: the battles between Big Media and Big Tech have mostly avoided getting sucked into this country’s corrosive, debilitating party politics.

The “balanced copyright” movement has some alignment with leftist politics — not for nothing do many call it “copyleft” — but that’s mostly confined to academics and a handful of not-very-industry-aligned advocacy groups.  Now that SOPA and PIPA are dead, the Republicans who run Congress can’t decide whether to continue to align themselves with the politically entrenched media industry and promote further legislation, or to tout individual liberties (and appease the burgeoning Big Tech lobby) and repudiate such legislation.  Nobody involved in this year’s presidential election has touched the online copyright issue.

France, however, shows a completely different picture.  As a recent New York Times article describes it, the Hadopi progressive response legislation has been in place for two years, warnings have been issued to consumers caught downloading illegally, and the first group of repeat offenders — 165 of them — have been handed over to the justice system for potential fines and suspension of their Internet accounts.  The first warnings were sent out in October 2010,  about 1-1/3 years ago.

First of all,  let’s compare this with the RIAA’s campaign of individual lawsuits in the US: the RIAA appears to have gone after between 18,000 and 35,000 people over a period of five years, or 3600-7000 per year on average.  Even if one allows for the fact that France has 19% of the Internet-using population of the US, the number of French Internet users thus affected by Hadopi is only 18-35% of the proportionate number of US Internet users sent nastygrams by the RIAA.

Every study of the Hadopi system that has been done so far has shown the system to be successfully reducing illegal downloading and increasing legitimate consumption of content, particularly music sales on iTunes.  (The effect of the law on subscription streaming services like Deezer and Spotify hasn’t been measured.)  One would expect the “usual suspects” to debunk the studies, but they haven’t.  Instead, there have been statements such as “the effects are undeniable but hard to quantify” (the liberal newspaper Le Monde) and “Apparently some of its intimidation is having a psychological effect” (La Quadrature du Net, a French advocacy group which otherwise argues that Hadopi is a waste of taxpayers’ money to solve a nonexistent problem).

In other words, like it or not, the Hadopi system seems to be working so far.

French President Nicolas Sarkozy, who actively supported the Hadopi law, is up for re-election himself.  As a result, online copyright has become in France what we in America call a political football.  Socialists have been the most vocal enemies of the Hadopi law in France and have been calling for flat-tax statutory licenses, following the ideas of the Electronic Frontier Foundation, Terry Fisher of Harvard Law School, and other copyleft figures.  Yet now that the right-wing candidate Marine Le Pen is now stealing the socialists’ thunder by calling for a statutory license herself, the socialists are backing away from the idea, calling instead for some hazy combination of taxes and crackdowns on sites that enable illegal copying.  Nevertheless, both anti-Sarkozy parties have professed Hadopi hatred, as both a populist gesture and a Sarkozy differentiator.

This is just a little bit crazy.  Conservatives are supposed to be for individual liberties, low taxes, and small government.  So what is a hard-right politician doing embracing a system that amounts to a tax on content, no matter how much each consumer uses, and that distributes money to content creators through opaque, government-entrenched entities like the collecting society SACEM?  And what are the socialists, who are supposed to be for big government and equitable distribution of resources, doing opposing it?  I’m sure that I, as an American, do not have a proper understanding of French politics.  But to me, this smacks of political opportunism and demagoguery of the type that we are deluged with in this US election year on issues such as healthcare, taxes, gay marriage, etc., etc.  It’s sad.

I think five years is a reasonable timeframe in which to judge the success of Hadopi, so it’s premature so far.  Die-hard infringers will find ways around the system, such as through anonymizers, virtual private networks, and file encryption; we have yet to see how popular such methods become.  The fairness and effectiveness of the enforcement and appeal mechanisms have yet to be established.  But one hopes that Hadopi’s educational effect coupled with the fear of getting caught will reduce infringement enough to make it worthwhile; in that case, other countries should adopt progressive response with a strong educational component too.

Let Hadopi-haters do their own serious quantitative studies, and let’s compare the results.  Let’s make the judgments on facts, and for God’s sake let’s not let political posturing pollute the atmosphere.  Then let’s see the Copyright Alert System assess what’s working in Hadopi and adopt it here in the United States, where — at least for the moment — no one need worry about the issue being demagogued to death in election years.

Comments»

1. M - March 2, 2012

I don’t believe copyleft is about right or left in a political sense. Rather it’s idea of using copyright itself to subvert it’s intended purpose.

Instead of saying “you can not share this” (as is typical in copyright), if you want to a license for this, “you MUST share this”.

Copyleft puts copyright on it’s head. Quite a clever idea. The General Public License (what your blog, WordPress is licensed under) is good example of a copyleft license.

Bill Rosenblatt - March 2, 2012

Thanks for the comment. I think it’s more accurate to say that copyleft is about using licenses to “subvert [copyright]‘s intended purpose.” This led me to be curious about the origin of the term copyleft. According to Wikipedia, it originated back in 1976. I had thought it originated with Richard Stallman in the 1980s but it turns out to have predated him by several years.


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