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Copyright and Technology London 2012 and Hadopi June 21, 2012

Posted by Bill Rosenblatt in Europe, Events, Law.
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The first European edition of the Copyright and Technology conference took place in London this past Tuesday.  The highlight of the event was surely the non-appearance of the keynote speaker: Eric Walter, General Secretary of Hadopi, the French government agency set up in 2010 to administer the French graduated response system.  Walter cancelled his appearance at the last minute owing to unspecified “agenda issues.”

The law creating Hadopi was very much an artifact of the administration of French president Nicolas Sarkozy.  Eric Walter had cycled through a number of ministerial advisory positions in the Sarkozy government before his appointment at Hadopi.  In other words, both Walter and Hadopi itself have been very much tied to the now former president.

Furthermore, new French president Francois Hollande had made a campaign promise to dismantle Hadopi (as had his other opponent, the right-wing candidate Marine Le Pen).

So we all had to wonder: was Walter’s cancellation a sign that Hadopi’s existence is being threatened?  (And for that matter, was his original request to speak at the conference a sign that he was concerned about the future of his job?)

Fortunately, some of the well-placed attendees at Copyright and Technology London 2012 had some relevant information to share.  It seems that the Hollande administration is backing away from its promise to pull the plug on Hadopi, and instead is taking a more deliberate course of reevaluation.

The ambivalence over Hadopi (and over graduated response in general) in the context of France’s move from center-right to socialist government should lead to a healthy dialog about the purpose and economic effects of such a system.  This has the potential to be a more productive conversation than the usual ones we get from lawyers, some of which ultimately boil down to complaints that automated systems like Hadopi disenfranchise them from copyright claims processes.  (One such comment came at the conference this week from Gilles Vercken, a leading French intellectual property and technology lawyer who gave a very interesting overview of recent developments in France.)

Who actually benefits from a system that is meant to educate users about copyright responsibilities and prosecute repeat infringers?  Is it “Big Media,” as epitomized by Vivendi, the French owner of Universal Music Group which pushed hard for the enactment of the Hadopi law?  Or is it individual content creators who are finding it harder and harder to get paid?

Governments like those of Francois Hollande are caught in the middle of this.  Sarkozy, a conservative, was seen as favoring big business, in this case Vivendi.  Hollande is a socialist and therefore presumably in favor of distributing economic goods to the people — including individual content creators.  There isn’t much disagreement that online copyright infringement is a problem that has gotten out of hand.  Yet the economic statements used to refute graduated response usually come down to “it only benefits Big Media” (a cop-out without analysis to back it up) and “they don’t pay artists anyway” (a separate and irrelevant issue).

The good news is that Hadopi has been amassing statistics on the system’s use that the Hollande administration can use to make a substantive analysis before deciding what to do next.  Some of these statistics were in Walter’s presentation, which I obtained from his office and presented myself at the London conference.

There was some discussion at the conference over the validity of statistics on Hadopi’s effect on online copyright infringement in France.  Everyone agreed that these things are difficult to measure with any accuracy.  Yet the fact remains that four separate independent research studies showed significant reduction in online infringement in France over the first year of Hadopi, and none of the “usual suspects” (such as the advocacy group La Quadrature du Net) have substantively debunked any of them.  Steps against online infringement need to be taken in response to hard data; government’s responsibility includes insuring that the data is the best and most unbiased available, even if it isn’t 100% reliable.

Thanks once again to the Copyright and Technology London 2012 sponsors: MarkMonitor, castLabs, Civolution, PicScout, Simons Muirhead & Burton, and Booxtream.  And a huge thank-you to Music Ally, the event producers and as excellent a partner as I could hope for.

Comments»

1. Kevin - June 21, 2012

“Steps against online infringement need to be taken in response to hard data;”
And this is exactly what’s missing: Hard data.

There is NO hard data that support the agreement “that online copyright infringement is a problem”. Indeed, even Hadopi studies include data that suggest that online copyright infrigement is NOT a problem. So, obviously there is no agreement here: Content Industry & Govs say it’s a problem. Pretty much everyone else says it’s not.

Usually, I prefer to be sure of the existence of a problem before trying to “solve” it. Don’t you?

“Yet the fact remains that four separate independent research studies showed significant reduction in online infringement in France over the first year of Hadopi”
You’re missing one interesting data here : Those studies only try to measure P2P. As you know, Direct Download sites were very unsuccessful. Oh, Wait!… :)
Hadopi’s main mesurable effect was to make people flee from P2P (which can somehow be measured) to use Direct Download (from which you can collect no data at all) instead. Sadly, authors of those studies did not bother to consider this possibility…

” “they don’t pay artists anyway” (a separate and irrelevant issue) ”
I’m sorry?? Could you please elaborate on why this is separate and irrelevant?
I mean…That Hadopi law was passed to help Artists get revenue. At least that what Hadopi law pushers were (and are) constantly saying. If giving money to the recording industry is not a way to provide Artists with revenue, that’s quite relevant and right on topic, I’d say…

” “it only benefits Big Media” (a cop-out without analysis to back it up) ”
This is exactly the same point. “Without analysis”, seriously?? Just compare the money flow entering the recording Industry and the one that ends up in artists’ bank accounts…

Bill Rosenblatt - June 21, 2012

Kevin,

First of all, I wonder why I bother spending time replying to a comment like this, coming as it does from the equivalent of a climate change denier. Dude, when the head of the Consumer Electronics Association calls “internet piracy … a very real problem” in the New York Times, the ship has sailed. We agree that the methods for measuring it are not going to satisfy everyone (myself included, though I am certainly not a market research expert), but we have all reached the point where it is time to acknowledge reality and figure out what to do about it.

So with that in mind, here are a couple of comments back atcha:

“Hadopi’s main mesurable effect was to make people flee from P2P (which can somehow be measured) to use Direct Download (from which you can collect no data at all) instead. Sadly, authors of those studies did not bother to consider this possibility…” While it is true that those four studies measured P2P activity, it is not true that you can’t collect data about direct downloads. Sure you can; I know firms that do that. As it turns out, Hadopi did cite some data about use of direct download services during the same period (late 2010 to late 2011) and found, yes, that usage of direct downloads did increase, but nowhere near enough to offset the measured decline in P2P usage. It is equally possible to trace unauthorized direct downloads to the users who put them there. You can also trace “feeder” links to those direct downloads. I’ve seen it done.

It is certainly possible that migration of infringing activity from P2P to direct downloads will accelerate. But it is equally possible for monitoring firms to enable copyright owners to supply data about this to refer to Hadopi, though the data collection is more labor intensive and thus more expensive. Will infringers just find other places to do their thing? Of course. Diehard infringers will always find ways. I don’t think anyone is saying that Hadopi is “a success”; it’s just too early to tell one way or another.

“I’m sorry?? Could you please elaborate on why [whether major media companies don't pay artists anyway] is separate and irrelevant?
I mean…That Hadopi law was passed to help Artists get revenue. At least that what Hadopi law pushers were (and are) constantly saying.”

It’s possible that “Hadopi law pushers” made statements justifying the system in terms of revenue to artists. But that’s not the point I am making. My point, which admittedly I put in somewhat shorthand terms, is that the law has no relevance to the way the money flows through the system. The law is supposed to be about deterring copyright infringement. If record labels rip off artists, that’s a problem to be solved, but it’s not the purview of graduated response law to solve it; it’s the purview of the market. Artists can and do make money through indie labels or by bypassing the label system altogether. Where I have a problem is with the flawed logic inherent in statements like “This isn’t worth doing because it only benefits Big Media.” It’s possible that under the current system, the bulk of benefits may not flow beyond major media companies to artists, but that’s not a reason to avoid doing what government can do to make it so that artists at least have a shot at making a living. These statements reduce to “Big Media wants it, so it must be bad,” which just plain bad logic. A system that only makes it practical for big companies to defend copyrights is bad, and that’s what we’ve got. Again, I am not saying that Hadopi has solved this problem, I am just saying we shouldn’t be throwing the baby out with the bathwater.

Finally: “Just compare the money flow entering the recording Industry and the one that ends up in artists’ bank accounts…” Wait, I thought you said there was no hard data? I’m not saying you’re wrong, but your evidence for such a statement is anecdotal at best… just like the data you want to debunk because you choose not to accept it. The latter appears to be the foundation of your entire argument, so I suppose this entire reply will have no effect on your thinking…

2. Kevin - June 21, 2012

Thanks Bill for your reply.

First, l’ll do one remark on the tone of your reply, so it doesn’t pollute the rest of this post:
-“because you choose not to accept it”, “I suppose this entire reply will have no effect on your thinking”. You present very valid arguments in your reply; Please don’t assume I’m close-mided, or that I don’t want to be convinced. Or at least don’t state it. That’s unpolite, and it doesn’t lead anywhere.

Now we can talk ;)

“but we have all reached the point where it is time to acknowledge reality”
Looks like a way to state this is a natural thing, that it just follows from everything, that progress could only lead to that –Which it could be; You’re not being convincing here. Throwing words to benefit from their connotations is not a valid argument.

“when the head of the Consumer Electronics Association calls “internet piracy … a very real problem” in the New York Times, the ship has sailed”
Sure he said it. Did I was convinced? No.
Even the Pope could repeat it a hundred times. I wouldn’t buy it.
Don’t get me wrong : If an average, anounymous guy comes to me with a strong argumentation, I will be convinced.
I’m not impressed by notoriety but by reasoning.

“it is not true that you can’t collect data about direct downloads. Sure you can; I know firms that do that.”
You’re right. It can be done…under very specific conditions:
1) Let’s spy/intercept/monitor* the whole (part of) Internet;
or
2) Let’s have the Direct Download Sites operators provide the data.

1) Is very expensive, adding a lot to the complexity of the network and its operations. Even if done on the smallest possible statistical sample, that still mean that ALL Internet communications for people from the sample have to be spied/intercepted/monitored. (pick the word with the connotations you like best). In France, several ISP and pretty much every Transit provider said they will not do that unless forced by law.
2) didn’t happen in France (We would know it because it would then be mandatory to declare that to French authorities, because of the possible privacy issues). And Direct Download sites operators weren’t quite willing to help on this anyway.

So I maintain what I said: The four studies didn’t have data on that, other than a hint at traffic volumes towards each Transit provider which is grossly inadequate for sharing measurement. And yes, there are ways to collect data (not perfect but certainly good enough) even for Direct Download. Costs for it are huge though (in $$,in privacy loss, in Internet ability to grow)

“If record labels rip off artists, that’s a problem to be solved, but it’s not the purview of graduated response law to solve it;”
I fully agree.
“it’s the purview of the market.”
I can agree as well. But then, what’s the rationale for supporting a law for reducing “piracy”? Why shouldn’t it be the purview of the market as well? After all, one could see the “problem” as people not wanting to buy this product anymore. Why should we pass a law to keep alive an industry that produce things people don’t buy?
(As a side note, all independant studies I’ve seen on this matter didn’t even find any correlation between piracy or sharing and CD sales. Except for a few study that actually found a negative correlation : People that share the most tend to buy much more CDs that the rest of the population.)

“It’s possible that under the current system, the bulk of benefits may not flow beyond major media companies to artists, but that’s not a reason to avoid doing what government can do to make it so that artists at least have a shot at making a living. ”
But again, there is not data showing that reducing piracy/sharing would provide Artists neither. There’s not even data showing it would bring more money to Big Media. My point was: if we cannot affirm that it would bring more money to Big Media, we cannot affirm it would bring more money to artists neither.

We don’t pass laws just for fun. We do it because of a goal we want to attain. But what is this goal with reducing piracy/sharing?
Is it to increase revenue of Media Companies? -> There is no data showing that it will.
To increase revenue for artists? -> There is no data showing that it will.

Then (and it is a *real* question)…Why?
I think I have a idea of the costs (for the society as a whole) of banning sharing. I see benefits for no one though…

3. Bill Rosenblatt - June 21, 2012

Kevin,

– With all due respect to His Holiness, the Pope is not someone who is paid to be the mouthpiece of a $250 Billion industry that is the sworn enemy of the media industry on copyright issues, and who has access to all of the information in existence. Gary Shapiro calling online copyright infringement (I dislike the “p word”) a “very real problem” is a huge deal, much more convincing to me than an “average, anounymous guy” or the Pope could ever be.

– I’m not going to argue with you about the existing studies, except for two things:
1.There are many more of them than you appear to have seen, including several not about music (e.g. about film and publishing), and if you read them too you’d see that your conclusions are wrong and/or you have cherry-picked the results (or someone did it for you).
2. Studies are based on data; Hadopi is generating data (which is inconclusive thus far). What data would you be waiting for that would convince you to move off your position? I wonder if any such thing could ever exist.

Now having said all that, the question is whether a law can make a difference, and it’s an unanswered one. I think we are both in favor of letting markets work. I’m generally not a fan of enacting laws unless there is a market failure, which I happen to believe there is. Is Hadopi the right law? No one knows yet. The fact that “there is no data showing that it will [increase revenue for artists]” is not in itself a reason to shut it down.


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