By Bruce Gain for Intellectual Property Watch
Legal experts and consumer rights groups are questioning the feasibility of measures described in an anti-piracy pact that French media groups, government officials, and Internet service providers (ISPs) announced on 23 November.

ISPs also dispute the veracity of media reports that have since claimed that access providers will begin to actively monitor and block peer-to-peer file exchanges in France.

The anti-piracy agreement [in French] describes a number of possible measures that could prevent illegal distribution of copyright-protected digital media in France. One possibility is that recording and music industry associations, for example, would monitor the Internet for illegal file distribution. When illegal activity is discovered, the recording industry bodies would communicate the IP addresses of alleged offenders to a new branch of France’s justice department, which would then alert the ISPs. The ISPs would then send a letter to the subscribers whose IP addresses were allegedly used for illegal file downloads and uploads, warning that their account could be terminated if illegal file-sharing activity were to continue.

Under the terms of the pact, the ISPs also agreed to aid in the development of filtering and content recognition technologies provided that such collaboration remains “technically and financially realistic.”

Media industry groups, government bodies, and the ISPs agreed to the tentative terms of the pact, which was drafted by Denis Olivennes, the chief executive of the electronics, book, and music retailer FNAC.

International Federation for the Phonographic Industry (IFPI) Chairman John Kennedy said the measures offer a simple framework that other countries could adopt, while Sweden and the United Kingdom are considering similar plans (IPW, Copyright Policy, 27 November 2007).

In a statement, the IFPI said: “This is the single most important initiative to help win the war on online piracy that we have seen so far.”

Following the announcement of the pact, numerous media reports claimed Internet providers would begin to monitor and police the usage of the Internet. They would also implement filters that would end P2P usage in France, according to some reports. However, the ISPs were quick to deny the claims.

“The ISPs will not monitor their customers’ activities,” a spokeswoman for French company Orange said. “It will be the copyright protection groups that will set up �honey pots,” and then denounce pirates to the authorities.”

For the ISPs, there are no immediate plans to institute filters or to take other more heavy-handed measures themselves, the Orange spokeswoman said, adding that doing so would violate the trust of the firm’s customers and would not be financially tenable.

The agreement also represents a working framework, and will be changed and revised over the course of two years, the Orange spokeswoman added.

However, the spokeswoman acknowledged the ISPs’ role in the pact by agreeing to collaborate with the authorities. And a June ruling by the Brussels Court of First Instance ordered Belgian ISP Scarlet Extended to filter subscriber connections used for illegal file distribution (IPW, European Policy, 9 July 2007). However, the spokeswoman emphasised that filtering by the ISPs would not be commercially feasible.

But even more seemingly benign measures, such as sending Internet subscribers warning letters for illegal file distribution would not be legally and technologically possible, judge and former president of the French magistrates union Dominique Barella said.

“We are talking about millions, if not billions, of files being transferred and the government has been unable to do anything about it so far, even after instituting criminal penalties intended to prevent the activity,” Barella said. “If the measures announced in the agreement take effect, they will face insurmountable legal problems.”

Legal hurdles range from overcoming evidentiary rules to protections that France’s constitution offers, Barella said.

France’s plan, in many ways, calls for similar tactics the Recording Industry Association of America (RIAA) uses in the United States. RIAA’s lawsuits involve tying individual Internet accounts to IP addresses used for illegal content distribution. However, many hypothetical scenarios would arise where innocent parties would be wrongly targeted if media groups could have users’ accounts terminated after declaring their IP addresses were used for file sharing, Barella said.

Examples Barella gave include a household where minors share files unbeknownst to their guardian whose account might be shut down for the activity. Other scenarios include households shared by several unrelated individuals or companies that could lose Internet access due to a single user’s activities.

“File sharing is so widespread, I would bet that half of the ministers’ households would risk losing Internet access,” Barella said. “The measures would illegally penalize innocent parties.”

Death of Liberté in France?

For French consumer association UFC-Que Choisir, the anti-piracy pact is “heavy handed, possible ‘libertycide,’ and economic nonsense, and represents an about face in numeric history.”

UFC-Que Choisir listed what it said were several examples of how the act of terminating Internet access for file sharing as a punitive measure is an illegal act. The measures, if put into effect, would violate French and European Union constitutional law by, among other things, presuming those accused were guilty without a fair trial, it said.

Still, the agreement and the measures announced by the FNAC’s Olivennes remain under discussion and must be reviewed by France’s ministerial body before taking effect during the next two years.

If the measures are implemented, the Orange spokeswoman said that not much would likely change from the status quo concerning the ISP’s current role.

“If the authorities have a doubt about a user’s activity, they would contact us for the name of the subscriber,” the spokeswoman said. “But this is already the case today.”

Bruce Gain may be reached at info@ip-watch.ch.