Last week the French legislation known as la Loi HADOPI (Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur l’Internet) failed to muster enough votes from the ruling UMP party in French parliament and failed passage. The bill may be re-introduced later this year.
HADOPI was the leading example of so-called graduated response legislation, whereby a user who uploads copyrighted content without authorization is detected and gets a series of warnings, culminating in suspension or termination of her Internet account.
The French legislation was crafted last year following an agreement in late 2007 between the media industry and ISPs brokered by Denis Olivennes, CEO of the media product retailer FNAC. Its failure to pass in the Assemblee Nationale was a defeat for French president Nicolas Sarkozy and his party, and a victory for left-wing opposition and consumer groups.
The bill’s failure is also a setback for vendors of technology that could be used to monitor ISP traffic and detect unauthorized downloads, such as fingerprinting and watermarking. A Belgian court had already identified acoustic fingerprinting as a technology that ISPs should adopt in order to block unauthorized uploads. Similar processes are going on elsewhere now, such as in the US, in the Streamcast ligitation that was remanded to the 9th circuit appeals court by the Supreme Court after its 2005 opinion in MGM v. Grokster.
As today’s New York Times points out, legislators in various countries are finding that legislation obligating ISPs to monitor users’ traffic for illegal uploads is politically unpopular. And legislative bodies nowadays are having their attentions taken up by the economic crisis, wars, and other pressiing issues. As a result, courts will probably be the primary venues for legal decisions regarding digital copyright in the foreseeable future.