ENDitorial: Will France Introduce the Digital Guillotine in Europe?

By EDRi · April 23, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Ever since DADVSI, the French implementation of the European Copyright
Directive, Internet users in France have faced increasingly
disproportionate threats of punishment for claims of copyright
infringement. The latest scheme promoted by the content industry against
unauthorized sharing of music and films on Internet is called “flexible
response” or “three strikes, you’re dead”.

The principle is simple: repeated infringements result in getting cut
off from the Internet. A claimed copyright infringer is identified by
automated Internet traffic filtering and by a rightsholders’
denunciation. After a complaint to the ISP, a letter is sent warning the
alleged infringer that he might be being cut off from the Internet. In the
early versions of this scheme the punishing fines were to be sent out
automatically, but the fines were later replaced by the proposal to cut off
Internet access instead.

The proposal further includes the creation of an administrative authority
responsible for enforcement, making sure the disconnected Internet users are
not able to use the Internet again for a set period of time. The scheme is
unclear as to the possibility to appeal a mistaken claim or to whether a
punished Internet user can also be sued in a civil law suit. State
authorised software for securing Internet connections has been proposed as
one solution to uphold legal protection of innocent citizens.

Promoted by the French President Sarkozy, flexible response has become
known as the suggested main measure in the Olivennes report, which until
recently was generally thought to provide the basis for both French and
European legislation to come. But not so any more; a majority vote in the
European Parliament on the 10 April 2008 suggests otherwise.

In contrast to the French solution, the Swedish government has rejected
such a regime as disproportionate. The Swedish Ministers of Justice and
Culture concluded in March 2008 that ostracism from the Internet as
punishment in a society whose daily activities are increasingly
intertwined with the digitally networked environment is not proportional
to the infringement of copyright, especially without intention for
commercial gain. Its only justification, that of deterrence, has been
shown repeatedly to be ineffective. The Swedish Government has also
pointed out that large owners of media content should “not use the
copyright laws to defend old business models” but should do more to
provide attractive alternatives to unlicensed filesharing services.

In an effort to bring the Swedish Government’s policy decision to the
European discussion, and to oppose Sarkozy’s plans, MEP Christofer
Fjellner (EPP) initiated a cross partisan platform together with former
French Prime Minister MEP Michel Rocard (PSE) and MEP Guy Bono (PSE),
Rapporteur for the European Parliament’s Report on Creative Industries.
Together they signed, with more than 90 MEPs supporting them, an
amendment to the report which effectively rejects flexible response:

“Calls on the Commission and the Member States to recognise that the
Internet is a vast platform for cultural expression, access to
knowledge, and democratic participation in European creativity,
bringing generations together through the information society; calls
on the Commission and the Member States, therefore, to avoid adopting
measures conflicting with civil liberties and human rights and with the
principles of proportionality, effectiveness and dissuasiveness, such as the
interruption of Internet access.”

Following the tabling, the internal debate over the amendment intensified
and was complicated when the liberal group (ALDE) unexpectedly asked to
split the amendment into two parts and vote on them separately, presumably
to save flexible response. The first part related the Internet and the
importance of rights and proportionality had overwhelming support, while the
second part explicitly mentioning “interruption of Internet access” was
harder to support for many French MEPs who would not go against the explicit
will of their own government. However, with a close vote on the second part,
the amendment ended up being passed in its entirety.

In the aftermath of the European Parliament’s decision, the French
Minister of Culture, Ms. Christine Albanel, has clearly announced her
intention to move on with the Olivennes proposal. She is currently
planning to put it to vote in the French Parliament before the summer.
Accordingly, to this date, there are no indications that Sarkozy’s decision
to use the French Presidency to propagate this scheme at the European level
has been revised.

In Brussels it is also unclear whether the initiative by MEPs Fjellner,
Rocard and Bono will have an impact. Neither of them is listed as a
speaker or moderator at the next High Level Conference on Counterfeiting
and Piracy on the 13 May 2008, while MEPs who voted in favour of flexible
response are. It is a matter of public interest to ensure that there is a
balanced debate and that seats are reserved for politicians representing
the European Parliament’s position on what otherwise risk to be a very
controversial conference.

In media and the political blogosphere the impact of the vote is increasing.
Of particular interest is the correlation between the Member States with a
well developed Internet infrastructure and the way their MEPs voted: the
digitally advanced Nordic countries have all clearly rejected the French
digital guillotine.

Amendment 1 by Christofer Fjellner and amendment 2 by Michel Rocard and
Guy Bono and others. Report Cultural industries in Europe. Rapporteur
Guy Bono (2.04.2008)

High Level Conference on Counterfeiting (13.05.2008)

Press review

European Parliament Says No to Internet Ban (10.04.2008)

Digital economy : head or tail ? (20.04.2008)

Vote results Bono report

(Contribution by Jérémie Zimmermann – La Quadrature du Net and Erik
Josefsson – EDRi-member Electronic Frontier Foundation)