French legislators are putting the final touches on controversial legislation that will likely lead to the most governmentally-proactive law intended to curb illegal file sharing among any other European Union member state.

The legislation’s backers, which include French President Nicholas Sarkozy and his senate majority UMP (Union Pour un Mouvement Populaire) party, hail the measure as an ambitious and breakthrough solution for media copyright holders. However, critics claim the proposed mandate, known as the Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet (HADOPI) law, will violate internet users’ French constitutional protections.

The main impetus of the HADOPI legislation drafted in its present form calls for the creation of a government agency that will manage a so-called “graduated response” process. The agency will contact and send warning letters to internet subscribers whose accounts correspond to IP addresses allegedly used to illegally share copyright-protected media files. For repeat infringers, internet accounts could be shut off.

The proposed law, which is expected to see final before the National Assembly in March, is seen as a remedy to existing laws, which when strictly applied, call for sanctions from the French penal code against individuals accused of illegal file sharing. Existing sanctions as they are written in the French penal code call for fines, and in some cases, prison sentences.

Instead of relying on an internet service provider (ISP) or copyright holder with a vested interest to take legal action against alleged infringers, backers of the proposed law say relying on a government agency for enforcement will help to avoid conflicts of interest and will serve as an impartial arbitrator between copy holders and those accused of illegal file distribution.

In the big picture sense, the law is also part of President Sarkozy’s project of governmental reforms that, among other things, will lead to an overall better offering of online music, film, and other commercial media offerings, Olivier Henrard, a legal advisor for France’s ministry of culture, said.

“The idea is to improve on the legal distribution model of online media, by making it more flexible,” said Henrard.

However, the legislation has rankled consumer rights associations and certain members of France’s Socialist Party government officials, who hold minority seats in France’s senate.

The main points of contention are how IP addresses can be used fraudulently for illegal file distribution. Account holders, for example, could receive warning letters and, eventually, see their services suspended after someone has hijacked their addresses for illegal file sharing. And even in flagrant cases, where an account has clearly been used to illegally distribute files, shutting off a household’s or company’s access to the internet could represent in itself a fundamental violation of constitutionally protected liberties in France, Patrick Bloche, the National Secretary for France’s Socialist Party and the mayor of Paris’ 11th arrondissement, said.

“The legislation is not only dangerously repressive, it is also inefficient,” Bloche said.

The lobbying power of France-based Vivendi and other media conglomerates unduly influenced the legislative draft in their favour, Bloche said. A fairer solution would have consisted of creating a system with which internet subscribers pay a monthly fee for unlimited file sharing that would be used to directly compensate authors, recording artists, and other copyright holders, he said.

“With a universal licence, the money recuperated will not uniquely go into the pockets of the producers, which is definitely the case now.” Bloche said. “Today, artists’ royalty payments are significantly less, while the [media companies’] royalty payments are considerably more.”

With the current model of royalty payments, less than 5 percent of artists in France “can make a decent living,” according to Edouard Barreiro, who is part of the technology, information and communications branch of the French consumer rights association UFC-Que Choisir (www.quechoisir.org).

“For two euros per month [from each ISP account holder], we can collect enough funds to adequately compensate all the artists,” Barreiro said. “Unfortunately, everybody knows that Vivendi is in the halls of the French presidential palace.” Barreiro referred to how President Sarkozy’s wife Carla Bruni, a former model and recording artist, has strong ties to the established music industry in France.

However, Henrard vehemently denied that organisations representing lesser-known artists and consumer rights organisations were shut out from offering input when the legislation was drafted.

“We consulted with 50 organisations representing music industry, internet firms, independent artists and record labels and they all signed agreements that they supported the law,” Henrard said. “Que Choisir is obviously not in agreement, but they were consulted.”

A First in Europe

France’s HADOPI law will represent the most governmentally-proactive legislation introduced in Europe to date if enacted in its present form. While German lawmakers recently voted against a similar graduated response initiative due to privacy concerns and possible legal claims, other countries in Europe could follow France’s example. A graduated response initiative is under discussion among Italian politicians while in the United Kingdom, the government there has suggested to the industry in its Digital Britain report that the tactic would be effective.

Already in the UK, Virgin recording company, in conjunction with the British Phonographic Institute (BPI), has begun to send warning letters to internet account subscribers with IP addresses used for massive file distribution. Under a court order in Ireland, ISP Eircom must begin contacting its subscribers with accounts used for illegal file sharing.

“France is a pioneer of protecting creative content online,” a spokesman for the International Federation of the Phonographic Industry (IFPI) said. “It will be the first European country to implement in legislation a graduated response approach to tackling online copyright infringement, but it is not acting in isolation.”

The Legal Challenge

Meanwhile, if the legislation is adopted in its present form, there remains the possibility that the enactment may face challenges by France’s judicial body. For example, blocking internet access as a sanction may not comply with constitutional protections guaranteed by the French Constitutional Counsel body (Conseil Constitutionnel), said Nicolas Maubert, an attorney in the IP, Telecommunications, Media, and Technology department for the Paris-based law firm Gide Loyrette Nouel, who added that a graduated response initiative is not a necessarily a bad thing in itself.

“It still seems legitimate to question whether blocking the access to the internet is indeed a ‘proportionate measure,’” Maubert said. “Especially these days, just imagine yourself without access to the internet, with no e-mails, no information.”

Still, as the law’s backers say, subscribers who are sanctioned and no longer have internet access can appeal the decision in a court of law. However, filing an appeal prior to a court decision would not suspend the HADOPI decision, so that in practice, an individual or organisation could still be effectively deprived from internet access during the appeals process, Maubert said.

The law will thus likely see court challenges in the French judicial system if enacted. “In a nutshell,” said Maubert, “HADOPI is not about to be forgotten.”