Does a loophole mean worry-Free file sharing in France?
October 11, 2010
Recently, nearly a year after the latest French anti-piracy law reached the statute books, the French government agency HADOPI began to see the first batch of notices sent out to ISPs identifying IP addresses allegedly caught using peer to peer networks to share copyright content.
The controversial legislation sets out a three strikes approach to enforcement. On receipt of a notice, an ISP is expected to send a warning email to the owner of the internet connection involved, and deliver up their identity. A second suspected offence leads to a certified letter, setting out similar information, including the IP address involved, and the time of the offence. Finally, a third strike can lead to the suspension of the subscriber’s internet connection.
The scale of the operation is colossal, the initial number of notices sent out being projected in the tens of thousands per day and only set to increase. In light of the controversy surrounding copyright enforcement against filesharers, particularly where enforcement mechanisms rely on automated software to log IP addresses, it is no surprise that many have spoken out against the law. What is newsworthy, is that one French ISP, ‘Free’, believes that it has found a loophole in the legislation that will allow it to avoid sending these warning emails, and as a consequence potentially protect its customers from sanctions.
Guillaume Champeau, commenting on this Techdirt article, explains the reasoning like this:
[In] order to face penalties before the court, internet subscribers must have received at least one previous warning by paper mail. [The law] also says that in order to send this paper mail, the HADOPI must have been noticed of new infringements which must have occurred within [the] 6 months after [a warning] e-mail was sent. Therefore, if the e-mail was never sent, no paper mail can be sent … and the users can’t face penalties. Currently the law does not mandate an ISP to send the e-mails.
While taken at face value this might appear to be a good selling point for internet users prone to file sharing, the reality is that the approach set out above still involves the identity of subscribers being forwarded to the government agency. Subscribers will just be unaware of this fact. If, or more likely, when, action is taken to plug this alleged loophole, many users could be shocked to find that they are already part of the way towards having their access suspended – notably, losing access does not absolve a subscriber of their liability to their ISP for the service, so users could find themselves paying for an internet connection they can’t use.
It will be interesting to see how this episode unfolds. More importantly, if the French approach is sucessful, are we likely to see it used as a model on which our own laws will be based in future? Earlier this year, OFCOM published a consultation paper proposing a draft code of practice under the Digital Economy Act, which we have written about before here and here. The draft code proposes a similar three strikes rule, but has faced substantial opposition from ISPs, and so it remains to be seen what the final document will look like.
