French "three-strikes" copyright law passes -- but may be dead anyway

You may have heard about the French Assembly passing Sarkozy's mad "three-strikes" bill, which will allow big media companies to force ISPs to disconnect you by accusing you of copyright infringement (without even having to produce proof). Jeremie Zimmermann, a leading French activist opposed to the bill, has a good analysis of the problems it will face, even having passed:

* HADOPI is legally dead because it opposes to fundamental principles of French and European law, including the respect of a fair trial, principle of proportionality and separation of powers. European Parliament has also for the 4th time recalled its opposition to the French text by voting again amendment 138/464, thus voiding the French HADOPI. The law is also not respecting requirements of French constitution regarding a due process, equality in front of the law, and legality of the law, which the Constitutional Court will now have to judge.
* HADOPI is technically dead because it entirely relies on identifying users through their IP address that can be altered or high-jacked in many ways 5. As a consequence, innocents will inevitably be sanctioned. Circumvention techniques are also already largely available.
* HADOPI is dead in the media because government's propaganda didn't stand for long under close scrutiny from citizens over the net6 and to the aware consideration of a few critical elected representatives.7. A fantastic movement opposing the text allowed public debate to interfere in every possible part of the French web about the real stakes of the funding of creation in the digital age. Today, 60% of the French reject this text according to an IFOP poll8 (33% only agree to the scheme) and a wide opposition includes independent movie theaters, hundreds of independent labels, science-fiction authors and performing artists.
* Finally, HADOPI is dead politically, right in the middle of an "Hadopigate " revealing unhealthy collusion between Minister of culture and big media close to the president Sarkozy, everybody within the majority already understood that this text is a ball and chain they will have to drag along for a long time.

Solemn burial for HADOPI in French National Assembly

Previously:

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Nixar

The majority party is completely schizophrenic on this one. 2 days ago, the rapporteur of the law (ie the MP in charge of handling the bill in the lower chamber) was on a talk show presenting his party’s platform for the upcoming European Parliament elections, passionately reminding people that they are very important, and trying to get people to vote.

2 minutes later he’s asked about the Bono amendment, and won’t you know it, it doesn’t matter because the EP is pointless, the Council of Minister is going to oppose it anyway, and by the way it’s all a trick by the French socialists who are manipulating the MEPs. After all, the amendment was opposed by ALL the MEPs, I mean, all the French right wing MEPs. Well, not even that, all the French right wing MEPs member of Sarkozy’s party, the center right (AKA liberals) and the far right having voted against it.

@#5: the Constitutionnal Council has nothing to do with what the higher chamber does; it statuates on the constitutionality of the law. At this point anyway the lower chamber’s version prevails if there is a discrepancy, which is unlikely.
Anonymous

Let’s not get too complacent about the fact that this crazy new law violates due process and a whole raft of basic principles of the French constitution, and is therefore “dead.”

After all, plenty of crazy laws in the United States violate basic due process guarantees and fundamental rights enumerated in our constitution, and they’re still on the books and getting enforced every day. Asset forfeiture in the U.S. is a gross violation of due process, but it’s being used constantly, and expanding like crazy. The DMCA violates due process but it’s in effect and being abused at an accelerating rate.

Mere accusation of a wide variety of crimes today in America is sufficient for massive sanctions, including kidnapping without charges or trial (on the mere accusation of being an “enemy combatant”), confiscation of all your property (asset forfeiture), home invasion and tasering and beating (accusation of being a “terrorist” for planning a peaceful political protest) and so on.

The mere fact that these laws are grossly unconstitutional under American law doesn’t seem to stop law enforcement agencies from using and abusing them in America — why should it stop law enforcement agencies and other muggers with badges in France?
Anonymous

The law may be dead in france, however it is being pushed vividly by the press in other european countries, namely Germany and the UK.

In Germany at the same moment the government is trying to implement a law to criminalize accessing web pages that are on a secret list of “child pornography”. But the minister of justice already declared that file-sharing websites ignoring copyright may be included in the future.

We have a public petition against this law, you do not have to be german citizen to sign – however it requires registration and everything is in german language… see https://epetitionen.bundestag.de/index.php?action=petition;sa=details;petition=3860
FPF422

You don’t understand the European politic culture…. This kind of thing is regularly used here…. We pass a law to stop something that pressure groups don’t like… They are happy… but at the same time we see that that law remains inapplicable… and every body is happy LOL

Some times it comes on the news and then most of the time it’s forgotten again…
WalterBillington

@1 It’s dead as in dead in the water. It will be subject to constant litigation, any application of it will have multiple and valid legal attacks (as mentioned, fair trial etc), prosecutors will be sued for acting beyond their powers (doctrine of ultra vires) …

In short, they deployed the trawling net, but it’s now exceedingly tangled, and will never untangle. A nice example of how a law can be technically passed, but be incapable of exercising its (bad faith) spirit.

Of course, they’ll prosecute a few small fish to frighten the rest, and tie people up in legal process, but that’s the result of the application of the law, and will nonetheless still breach the principles of the union.

The french are so beautiful with their treatment of the law – so wonderfully precise.
Anonymous

This is strange. Big Media gets you kicked off your ISP, then ISP no longer receives the $600 or so you pay for connection each year. What is the incentive for the ISP?
Ugly Canuck

Trois fois, et outre?
Ugly Canuck

Trois fois, et outre? Ou sortis? Ou dehors?
Anonymous

to comment 14: in france you still have to pay your ISP while you are disconnected.

regarding the “death” of the project: In germany the music industrie now started a new lobbying campaing for the “three-strikes-law”: http://www.heise.de/newsticker/Deutsche-Musikwirtschaft-fordert-Internetverbot-fuer-Raubkopierer–/meldung/137789
M

It’s not clear to me how you can declare a law which has just passed “dead”. It seems very much alive at the moment.
Anonymous

@M.MAY its dead because it’s in direct conflict with EU law and the french constitution. seems pretty obviuos to me.
tw15

Can you imagine in if they extended this to Xerox machines – three illegal photcopies and you’d have your machine confiscated.
M

Stranger things have gone wrong when there are governments involved. I’m reminded of many instances in the US where the Constitution seems to be easily ignored, for instance, when someone powerful wishes to ignore it.
ab5tract

@M

You ignore the many times that after the fact new leaders are elected who are either in direct support or forced to involve themselves in reversing those things. In the US, see all the Alien & Sedition Acts, Alcohol prohibition (fingers crossed for cannabis :), and even the torture policies of the last 8 years, for starters.

The EU couldn’t pass this without looking completely un-democratic, and it’s likely Sarkozy’s mediacracy will find itself in a similar situation. What is the French equivalent of the ACLU?

BTW I’m not saying horrible shit did not happen while those laws were in effect. That is why we protest them the whole time they are there. Of course we are called crazy and unpatriotic from the start till when the opinion finally swings. Even then the media plays it down.
Anonymous

i think i read somewhere that it still has to go through the senate then if any changes were made back to the lower house. if it does pass the senate then it must go to constitutional court to decide if is in conflict with the french constitution.

also, this is a huge machine to set up and all the peices could never be in place before the EU steps in and has its say. the EU telecom bill that either just passed or is about to states that there must be judicial decisions to terminate internet access. this will tie up the courts and in reality be to costly for the french system to support. the infrastucture of all of this will be astronomical. how on earth did the entertainment industies get the french goverment to actually pay for all of this? if you ask me it would be so much easier to just give the money directly to the RIAA and let the people keep DLing.