French Government hurries to put HADOPI law into application

By EDRi · June 3, 2009

This article is also available in:
Deutsch: [Französische Regierung drängt auf Umsetzung des HADOPI-Gesetzes |]

No sooner has the three strikes law been adopted that the French government
issued CCAPs (special administrative specifications) and CCTPs (special
technical specifications) which were sent by the Ministry of Culture to the
candidate enterprises to put into function the information system of HADOPI.

The call for tenders was sent since the beginning of the year even before
the Hadopi law was adopted, the notification date having been set for 5 June
2009 with a deadline on 1 July 2009 for a first prototype of the graduate
response system. A draft calendar foresees the application of the Hadopi law
in stages starting with 5 June 2009 until 31 March 2010.

In the beginning, Hadopi will send only written recommendations by e-mail at
a rate of about 100 infringing cases per day after which, when the treatment
is completely automatic probably in September 2009, the number of cases will
increase to 1000 per day reaching 10 000 when the prototype is finalised in

A calendar of actions is left however at the choice of the candidates, the
CCTP mentioning that “the offers will be assessed in terms of the closeness
of the proposed calendar as compared to the target calendar”. The ministry
is not concerned with costs or means but only with speed. The candidates
will have a rather difficult task as the beta-test will last only two weeks
before the first warnings and the blocking bugs will have to be corrected in
one day, otherwise they will face sanctions. There is also the result
obligation, the operator taking the responsibility in case of problems and
having to compensate Hadopi in case of delays or malfunctions.

There is no provision for the moment that Hadopi makes sure, before issuing
a warning or a sanction, that illegal downloading has effectively taken
place from the IP address of a suspected Internet subscriber. It appears
that between the IP address collection phase and the warning or sanction
phase there will be a “notarisation and sampling” phase.

The notarisation phase means the “qualification of the data and the
recording of essential elements of the transaction from a trustworthy third
party” meaning the recording of all the elements proving the downloading or
rather making copyrighted material available. “The content, origin,
receiving date, the sender’s identification key and the destination of the
file are essential elements” says the CCTP.

Sampling means Hadopi would retain only some of the complaints received in
order to deal mostly with those of higher interest. An algorithmic system
will allow targeting potential recidivists as a priority.

Hadopi does not take into account the presumption of innocence and only
needs to be certain of the reliability of the IP address lists on the basis
of which it would give warnings and sanctions. Hence the provision of
attaching a “chunk” of the file to every submission of a case in court which
would be a material proof of the infringing. However, such a provision
raises practical and economical problems.

The CCAP and CCTP do not precise either the criteria based on which Hadopi
will decide on recidivism in order to send another e-mail, registered letter
or give sanctions. It is only mentioned that a “study of the reiterations
is carried out so as to bring out the following elements for each
subscriber: infringement stage (1st, 2nd, 3rd.); type of actions taken or
sanctions given by the High Authority: time interval between each
infringement; and type of works concerned”.

There are also very little details as to what are the means of appeal for
the sanctioned Internet users. It is provided that an appeal can be made by
means of an electronic form or by mail and that the appeal may lead to
informing the ISP of the obligation to re-establish a suspended
subscription. On the other hand, no observations can be brought by a
subscriber before the sanction stage.

For the time being, Hadopi continues to be criticised and contested. On 15
June, a concert evening against the graduate response will take place with
several groups of artists supported by Numerama, co-organised by Réseau des
Pirates and, in partnership with Vendredi Hebdo and International
and supported also by Slate, Agoravox, LePost, Ivox, 22mars, Social Média
Club, j’affiche and ZikNation.

The evening will include the projection on films dealing with Hadopi, the
new models to remunerate artists, the protection of numerical freedoms, a
debate on the topics as well as music moments.

“The problem with HADOPI is triple: it does not bring more money to artists,
it touches the fundamental rights and finally it opens a breach into net
neutrality allowing private interests to get hold of a judge in order to
oblige an access provider to censure part of the net. This law stigmatises
the Net which is however an incredible chance for the music to get renewed.
(…) A new model must be invented and the technological evolution must be
accompanied rather than rowing against it. This is what the public politics
serve for, not to protect an industry where 5 multinationals make a trust of
the entire market and refuse in a single voice to accept the challenge,” was
the statement of Flowers From The Man Who Shot Your Cousin / Waterhouse
Records that will participate in the event.

Exclusive: Hadopi will target as a priority the potential recidivists!
(only in French, 20.05.2009)

Exclusive: Hadopi will not collect material evidence… for the moment
(only in French, 27.05.2009)

Concert-Evening “Hadopi has killed me” Monday 15 June in Paris (only in
French, 26.05.2009)