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Wednesday, July 10, 2013


Opened up the EU Observer this morning and lo and behold there was this headline:

France scraps online piracy law.

They are referring to what is commonly called "Hadopi", which is actually the name of the government agency, the Haute Autorité pour la Diffusion des Oeuvres et la Protection des Droits sur Internet.  The French law behind it was first proposed in 2008 with the support of many film, music and book authors (the "creatives") because it was designed to stop illegal downloading and to protect their rights to their artistic and literary property.

However,  the rather draconian penalties which included cutting the Internet access of repeat offenders, were widely criticized.  In the English language media Hadopi was often referred to as a "three strikes law."

Though it was fiercely debated in France, and there were many accusations of "dirty tricks",  it did pass parliament in 2009, and a version of it survived scrutiny by the French Conseil Constitutionnel (Constitutional Council).

In a rather ironic twist, when the Hadopi agency unveiled its new logo in 2010, it turned out that the font they used was under copyright and owned by France Telecom.  Not a terribly auspicious beginning.

But they soldiered on and Hadopi went live.  What has been the result?  It took them millions of Euros and three years to get one conviction. Valéry Marchive reported on it in this article in ZDnet back in 2012:
For the first time since its difficult birth in 2009, the work of France's anti-piracy authority Hadopi has resulted in a conviction. Earlier this month, a man known as Alain P was convicted of having failed to effectively secure his home internet connection and will have to pay a fine of no less than €150 as a result. 

Calls to repeal the law have been getting louder.  In addition to those who always thought it was a bad idea (I was one of them) many of those who liked it or were ambivalent about it were admitting that it was not efficient and has not worked as intended.  The Rapport Lescure released in May called for the suppression of the Hadopi agency and lightening up some of the penalties.

So does this mean that Hadopi is dead?  No, the article in the  EU Observer is a bit misleading.   What the French government did was issue Décret n° 2013-596 du 8 juillet 2013 which eliminates only one of the penalties for illegal downloading (albeit the worst one):  the possibility to cut the Internet access of people who have been warned but who persist in downloading intellectual property in violation of the law.  The fines are still there and I've heard that Hadopi will be absorbed into another government agency which will take on the responsibility of enforcement.

But most importantly, the intent - the original objective - is still there.  Lescure's mission was called "L'acte II de l'exception culturelle" and his report is revealing.  Hadopi may be on the ropes but there are other methods to achieve its goals that are less punitive and more positive.

What I did like however about Lescure's report was the number of stakeholders consulted and the different views that were expressed.  Some of the proposals are quite good and show the incredible creativity of the French.  I'm not so sure about the tax they propose on connected devices but that might be a good compromise.  I wouldn't rule it out until I see the details.

But do you know what I admire the most?  Yes, millions of Euros were spent and a lot of time and energy expended on everyone's part but, when it became clear that it was not working, they were willing to face that and consider making a course correction.  In a situation like this one the "sunk cost fallacy" can be an important deterrent to doing the next right thing - just because one has spent a million euros doesn't meant it's rational to spend a million more just to try and save something that cannot be saved.

Here's hoping that the French, with their usual deftness and intellectual agility, have steered clear of the trap.


P. Moore said...

Spend millions and get 1 low grade conviction. I think that is pretty good. I am absolutely POSITIVE the US government can easily outdo the French when it comes to blowing BILLIONS without any understanding what if any value will be derived. It would also take the USG a lot longer to figure it out.

Victoria FERAUGE said...

@P. Moore, I was thinking EXACTLY the same thing. :-)