French law on 'graduate response' opposed by ISOC Europe

By EDRi · September 10, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The European Chapters Coordinating Council of the Internet Society
(ISOC-ECC) issued a press release on 5 September 2008 expressing its
opposition against the “graduated response” proposed by the so-called HADOPI
law presented to the French Council of Ministers in June 2008. The same
arguments were also submitted to the European Commission in an Aide Memoire
sent on 4 August 2008.

While the issue is under debate in the European Parliament, the Aide
Memoire, signed by France, Poland, England, Germany, Wallonia, Belgium,
Romania, Luxembourg, Italy, Bulgaria, Finland, Norway, Spain, Netherlands as
members of ISOC-ECC, comments upon the “proposed restrictions on access to
and use of the Internet, in the name of protection of intellectual property
rights”. ECC believes that the proposed French law “is a disproportionate
response to the stated objectives of the EU Commission’s Communication and
that the proposed measures and sanctions reflect a lack of understanding as
to the nature of the Internet with unfavourable consequences for the use of
the Internet for many economic and social purposes.”

While ISOC members generally support established copyright laws, including
protecting users’ rights, they believe that the measures and penalties
proposed show a lack of understanding of what Internet means. In their
opinion, the HADOPI law tends to look backwards thus confirming the concern
that the media industries have not yet adapted their business and commercial
activities to the present situation. “However, the global reach of the
Internet and its continued rapid expansion, energetically promoted by the
public authorities in nearly all countries, is the basic fact and context
for any understanding of this matter” says the Aide Memoire.

ISOC members also consider that the graduated response is bad both from the
economical as well as social point of view. “The Internet has become an
essential social and administrative tool for many public and private
purposes. Disconnecting households would interfere with and undermine the
provision of public services by national and EU administrations and of
education by the schools. Such measures would also prejudice the
introduction of on-line banking and electronic commerce in general”. What
must also be considered is that within the EU legislation, a member state
cannot interfere with the transboundary provision of electronic services.

The HADOPI project and the graduated response would imply the collection and
retaining of a huge amount of personal data during the investigations of
Internet users suspected of illegal downloading. But there is no clear legal
framework related to the treatment of these data. Improper protection or
loss of data can cause prejudices to the people in question.

The Aide Memoire concludes that the proposed measures would not achieve the
declared objectives appearing to be “technically flawed and probably legally
unenforceable, at least in a non-discriminatory manner.” The measures would
involve an “unacceptably high level of monitoring of individual use of the
Internet” and would “interfere with several other priority objectives
associated with generalised broad-band Internet access and with the EU
Internal Market for electronic commerce.”

The recommendation is that before taking such legal and administrative
measures, the industries should find business models that would take into
consideration the changes of the media as a result of the Internet and the
digitisation of communications.

At the same time, against all oppositions and concerns, in France, the
HADOPI law, now called “Creation and Internet”, will be examined by the
French Senate probably in October this year. It seems that SNEP, the
association of the music industry in France, is worried that the law might
be rejected and has sent a letter to the French President Nicolas Sarkozy to
remind him of the promises he had made to support the music industry. The
association wants to be sure that the discussion of the law in the
Parliament is pushed for this Autumn.

Albanel, the French Ministry of Culture having supported and pushed the law,
has assured the industry that the plans were according to the schedule for
this Autumn and the law was to be put into application at the beginning of
2009. The law is presently in the hands of the Cultural Commission of the

ISOC-ECC Aide Memoire – Internet – creative content and “graduated
responses” (4.08.2008)

Letter from ISOC-France to the French Senate (only in French, 27.06.2008)

The European Coordination of the Internet Society against HADOPI project: a
substantiated opposition (only in French, 6.09.2008)

Hadopi Law: Albanel reassures the producers on the timeframe (only in
French, 2.09.2008)

EDRi-gram: France pushes for ISPs’ involvement in fighting illegal file
sharing (30.07.2008)