On July 8th, a modified version of the bill was accepted by the Senate following reassurances that any final decision to disconnect an Internet user under a 3 strikes regime would be handled by a judge.

Last week French legislators voted on this compromise bill. In the National Assembly it passed with 285 votes in favor and 225 votes against. This acceptance signaled the bill would move to the Senate for approval.

The bill, which has received strong support from President Nicolas Sarkozy and musican first lady Carla Bruni, was passed yesterday in the joint legislative committee of the two houses by 258 votes in favor to 131 against.

Under the law, once an individual has been warned about a third online copyright infringement, he or she will enter a mechanism which will see them reported to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, and issue a range of other penalties including fines.

Reporters Without Borders referred to the legislation critically, saying it was “..alarmed that the alleged offender will not be given details of the illegal download when the disconnection order is issued. This recalls the censorship methods in force prior to the 1881 press freedom law, when the censor did not have to tell offenders why they were being censored.”

The bill now requires Nicolas Sarkozy’s signature to become law, but even this will face dissent.

The opposition Socialists, who were responsible for taking the earlier version of the law to the constitutional council, immediately announced that they will mount another challenge.

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On July 8th, a modified version of the bill was accepted by the French Senate after assurances were made that the final decision of disconnection under a 3 strikes-style regime would be passed to a judge.

The new structure is suggested as follows. Once an individual has been warned about a third online copyright infringement, he or she will enter a mechanism which will see them reported to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.

Furthermore, innocent ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of “negligence”, risking a maximum 1,500 euro fine and a 4 week disconnection.

Today French legislators voted on the new compromise bill. In the National Assembly it passed with 225 votes against and 285 votes in favor. The bill (now known as Hadopi 2) will now move to the upper house (the Senate) for approval. It will then be signed into French law.

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A modified version of the bill, which passes the ultimate disconnection decision to a judge, was accepted July 8th by the French Senate.

Now, according to a report, the Ministry of Culture has decided that a company called Extelia – a subsidiary of the post office – will be made responsible for administering identification information and sanctions under the so-called Hadopi legislation.

Extelia will be responsible for processing the IP addresses provided by the rights holders and collecting subscriber information from ISPs. The company will then send out emails and letters advising allegedly infringing recipients of their obligations under the law. It will also manage the issuing of sanctions, the monitoring of their implementation and connection restoration following the dreaded 3rd strike.

Extelia will conduct a trial period of 10 to 12 months beginning this fall, to be financed by the Hadopi agency from its annual budget of 6.7 million euros (apprx $9.5m).

To begin, around 1000 semi-automated warning emails will be sent out per day, which is just one tenth of the proposed output when the scheme is up to speed.

The outfit that will actually carry out the monitoring of suspected infringers is yet to be decided. However, Marc Guez CEO of music collection society Civil Society of Phonographic Producers (SCPP) – which works with the likes of EMI, Warner, Universal and Sony BMG – said that two companies are in the running, Advestigo and TMG.

Lawmakers in the lower house of parliament will start debating today on the modified bill. However, the opposition Socialists are threatening to refer the bill back to the Constitutional Council after loading more than 700 amendments, apparently in an attempt to slow down parliamentary debate.

If the bill successfully passes the lower house, it will next be examined by lawmakers from both the upper and lower houses and submitted to a new vote in both houses of parliament, before eventually becoming law.

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They had taken a similar stance to that of the European Parliament, deeming the proposed “3 strikes” regime for dealing with illicit file-sharers unconstitutional. They said that individuals must have a fair trial and striking an individual from the Internet is something only a judge can do after a hearing.

So now in modified form the bill is back. Moving the decision to disconnect file-sharers away from the Hadopi agency to the courts, the new version of the law addresses the objections of the Constitutional Council by presenting “3 strikes” cases to a judge, who will fast-track decisions in around 5 minutes per case.

The new structure is as follows. When an individual is warned about an infringement for a third time, the Hadopi agency will report the offender to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.

ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of “negligence”, risking a maximum 1,500 euro fine and a 4 week disconnection.

The revamped bill was adopted today by the French Senate and in the next few weeks will head to the National Assembly for its adoption.

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Back in 2006 the police, who were conducting a search linked to an unrelated fraud case, stumbled across the man’s sizable pirate media collection which included 12,591 MP3 files, 426 movies, 16 full TV-series and dozens of items of pirated software.

During the April hearing the retired IT expert said in his defense that it took him a whole year to accumulate the collection by using eMule on the eD2k network, but it was intended for private, not commercial use. He also told the court that he believed he had been acting within the law.

Unfortunately for the man, the legal system wasn’t sympathetic. A court in Vannes has just handed him a 2 month suspended jail sentence coupled with 33,000 euro (apprx $46,200) in damages.

Lawyers for 19 plaintiffs including the National Federation of Film Distributors, Sony, Paramount, Sacem and SCPP demanded between 1 and 2 euros compensation for each illicit MP3 and between 7 and 12.50 euros for each movie. It is believed that SCPP will collect the largest share of around 17,000 euros.

In a statement the man’s lawyer said: “There is stuff like this on all kids’ computers right now,” while pointing out that many of the files had been downloaded by the defendant’s children.

In January 2007, a court in Nantes also sentenced a file-sharer to two months suspended prison sentence for being caught in possession of 400 downloaded movies.

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After condemning the wearing of burqas by Muslim women in France and labeling it a “sign of subservience,” he moved on to HADOPI – France’s controversial anti-piracy law which aimed to implement “3 Strikes” for alleged pirates.

Earlier this month the Constitutional Council, France’s highest legal authority, deemed Internet disconnections unconstitutional, and stopped the law.

Speaking to both the Senate and the National Assembly in a joint session at Versailles Palace just outside of Paris, Sarkozy was clearly undeterred. During a 45 minute speech, he turned to the issue of Internet piracy, stating;

“How can there be areas of lawlessness in areas of our society? How can one simultaneously claim that the economy is regulated but the Internet is not so? How can we accept that the rules that apply to society as a whole are not binding on the Internet?”

Sarkozy went on to say that by championing HADOPI, he’s not just protecting artists.

“By defending copyright I do not just defend artistic creation, I also defend my idea of a free society where everyone’s freedom is based on respect for the rights of others. I am also defending the future of our culture. It is the future of creation.”

In pressing for HADOPI, Sarkozy said he will “go all the way.”

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The law goes much further than disconnecting alleged file-sharers though. In addition it is now possible to take “any action” in order to put a halt to copyright infringement. For example, websites can be blocked without having to provide hard evidence that they are engaging in illegal activities. The Pirate Bay has already been mentioned as one of the sites that could be easily taken out under the new law.

This afternoon the National Assembly passed HADOPI with 296 votes in favor and 233 against. The law was already supposed to have passed in early April, but at the time the Socialists block turned up unannounced, outnumbering the deputies from the UMP. The law will now be voted on in the Senate tomorrow after which it will be final.

As with most technical issues, the people who had to decide on the law have no clue about file-sharing at all. As we reported earlier, many of the politicians don’t know what BitTorrent is, or how it works. Yet they get to decide the fate of millions of Internet users.

HADOPI goes against the Telecoms Package of the European Parliament which aims to protect European citizens against such disproportionate legislation because it violates the rights and freedoms of Internet users. A few days ago HADOPI already claimed its first victim, the head of web innovation at the largest TV network in France who criticized the law in a letter to his MP. More victims are likely to follow in the months to come.

Update (May 13): The Senate passed the new law with 189 votes in favor and 14 against.

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The new law has been criticized by the majority of the French public, with many of them believing it will fail to reduce piracy. After the parliament voted in favor of the law, no one doubted that it would be approved by the senate and National Assembly as well. As expected the law was indeed ratified by the senate this morning, but to everyone’s surprise it didn’t make it through the National Assembly.

After a two hour discussion, the law was rejected by the National Assembly with 21 votes against and 15 votes in favor. According to early reports, the Socialist deputies changed their initial position and decided to vote against the law after witnessing the mass opposition from the French public.

“There was a wind of revolt in the country, which engulfed the Assembly and made us move from opposition to the majority,” a Socialist member said in a response, adding “The government is now in trouble.” France’s Minister of Culture Christine Albanel was shocked by the rejection and said it was a “trap” set up by the Socialist opposition.

Unfortunately the law is not completely off the table. It is likely to be voted on again on April 27 according to members of UMP, one of the supporting parties. However, failing to get it passed through the National Assembly the first time is clearly a huge mistake that is almost amateurish, and public opinion is not likely to change anytime soon.

Last month the European Parliament indicated it was opposed to “3 strikes” legislation when it defined Internet access as a “fundamental freedom.”

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The new ‘HADOPI’ (Creation and Internet) law introduces unlimited options for copyright holders to go after individuals and sites that are alleged to have infringed copyright, without having to actually prove that the accused are categorically guilty. Now, a new survey by French Institute of Public Opinion (IFOP) for LeJdd shows just how (un)popular this so-called ‘graduated response’ is with the public.

From a survey of 1004 individuals representative of the French Internet user, 60% of respondents said they were not in favor of the law (42% were strongly against), with a third saying they support it “somewhat”. Only those respondents over 65 years old showed greater support, with 53% in favor and 41% against. Despite this, 64% of the respondents in this category felt that the graduated response wont be affective at all.

Interestingly, there was no difference between the different age groups in the expected effectiveness of the new anti-piracy legislation. Overall, the majority responded quite negatively. Just 24% of respondents said that they felt the ‘graduated response’ would be “very” or “somewhat” effective, with a huge 69% believing it will fail.

As in most countries, illegal file-sharing is widespread in France. One in four of the respondents admitted that they downloaded copyrighted music or movies regularly. There is a clear generation gap here, as 40% of those younger than 30 years categorized themselves as active downloaders opposed to 6% in the 65 years and older group.

Not not everyone is sceptical of the scheme. While repeating the IFPI nonsense that 95% of all music is pirated, U2 manager Paul McGuiness writes that not only is the Creation and Internet law “the right solution to an enormous problem” but also “a fair and balanced solution” that “will work in practice.”

Clearly not everyone agrees. The full survey is available in French here (.pdf)

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One of the biggest problems with the new law is that copyright infringers will be identified only by an IP-address, which will undoubtedly lead to many false accusations. Those who want to prove their innocence have only one option, namely, to install a spyware application that will monitor their every move on the Internet and report it back to the authorities. Hardly practical.

The law goes much further than disconnecting alleged file-sharers though. In addition it is now possible to take “any action” in order to put a halt to copyright infringement. Minister of Culture, Christine Albanel, explicitly named The Pirate Bay as one of the sites that could be easily blocked under the new law.

Thus, without having to provide evidence that a website is engaging in illegal activities, it can still be blocked. Potentially this could mean that access to BitTorrent sites is disallowed in France, as well as access to sites like YouTube or perhaps even Google.

In summary, the new law introduces unlimited options for the copyright holders to go after sites and people that may or may not infringe copyright, without having to actually proove that the accused are guilty. To date, this is by far the most aggressive and unbalanced piece of copyright legislation that we’ve seen.

Even more so, only last week the European Parliament spoke out against such disproportionate legislation by adopting a report that aims to protect the rights and freedoms of Internet users and excludes ‘three strikes’ as a punitive sanction. Unfortunately, members of the French parliament completely ignored this.

What struck us most is that the people who get to decide on these issues have no clue about file-sharing at all. Many of them don’t know what BitTorrent is, or how it works. Yet, they decide the fate of hundreds of thousands of Internet users.

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In order to clamp down on piracy the French have proposed a new law that requires Internet service providers to cut off Internet access for persistent offenders. Under the new law ISPs have to warn alleged copyright infringers, and if they they ignore these warnings their Internet access is terminated for up to a year.

The public has actively opposed the law, claiming it restricts their freedom and privacy, while deeming the measure to be ineffective. In a recent poll 90% of the people spoke out against the legislation. Despite this protest, the law is backed by a majority in the French parliament and is expected to be adopted quite easily in the beginning of April.

However, do the politicians that will vote on the law have any clue what they are dealing with? Are they aware that the evidence gathering against alleged infringers is far from accurate, and that it’s not unusual for the wrong person to be accused? Or do they even know what BitTorrent is?

In order to test their knowledge on the subject, a reporter from Hebdo Cinéma questioned some of the politicians. They were asked what they thought was a bigger threat – BitTorrent or P2P. The results were quite revealing, and almost none of them could come up with the right answer.

Most politicians have simply no idea what they are talking about, with Herve Mariton commenting “It is beyond my skills, I admit.” Arnaud Montebourg used his trip to Washington as an excuse for not answering the complex question. “Give me a minute, because I am not aware of the details of the last amendments,” he added.

Patrick Ollier on the other hand, didn’t even understand what was said and asked the reporter to repeat the question in French. Maxime Gremetz’ response wasn’t any better, “I don’t know, I am not a technician,” he told the journalist. Interestingly, Georges Tron said that P2P was more of a threat than BitTorrent, although his explanation for it was utterly vague.

Claude Bartolone was the only one who made sense really. “From a technological point of view, I think the consequences would be the same,” he said, adding “From a consumer point of view it’s always more pleasant to listen to whatever you want whenever you want.”

The lack of knowledge demonstrated by these lawmakers signals a major problem. They are clueless about file-sharing technology and how it works, and oblivious to the potential negative consequences of the new law. Their main advisers are fed dubious and one-sided information from the entertainment industry, while the people on the streets seem to be ignored. Sad but true.

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Today, in 2009, the situation is moving quickly. In common with situations in many countries around the world, the entertainment industries have all but given up chasing down individual file-sharers, declaring that their new focus will be on ISPs, who they will pressure to clamp down on pirates on their behalf.

In October 2008 a technical roundtable got underway in Italy which promoted collaboration between the music, movie and ISPs. In basic terms, in part it was a discussion about the mechanics of implementing a ‘3 strikes’ or ‘graduated response’ to deal with piracy on P2P networks.

France has one of the toughest approaches to the ‘problem’ in Europe, so it will be of concern to many Italian citizens that their country appears to be taking the lead from Sarkozy’s vision of copyright enforcement.

According to a THR report, yesterday Italy’s Ministry of Culture signed an agreement with French officials to cooperate on anti-piracy issues. Furthermore, in an indication of how Italy sees its legislation progressing in the future, Minister of Culture Sandro Bondi said that Italian laws will “follow the French model” in providing strict protection and controls for copyright works.

As we previously reported, plans for a “3 strikes” regime had already been touted in Italy by the movie industry during meetings in Venice, with the MPAA’s President Robert Pisano stating: “Maybe the first couple of times they get a warning e-mail, then perhaps the speed on their account is reduced, and if they keep doing it then maybe their account is closed.”

With this announcement that Italy will follow the ‘French model’ and Sandro Bondi previously going on record saying that the fight against piracy is a priority for the government, it looks like the entertainment industries are getting closer to their aims, not just in Italy but in countries around Europe, and others across the world.

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SACEM, the French association for music producers and SCPP, which represents record labels including Universal, EMI, BMG, Warner have filed a complaint against the filesharing application.

The industry bodies argue that Soulseek, an application created by former Napster programmer Nir Arbel, is designed to permit unauthorized access to copyrighted works. According to a French law adopted in 2006, distributing such software is an offense that can lead to a 3 year jail sentence, as well as a fine up to 300,000 euros.

While Soulseek can be used to share any type of file, it is almost exclusively used to share music. Soulseek has a multitude of sub-communities, each dedicated to their chosen musical genres. The members can be incredibly passionate and many of them are experts in their field. Although mainstream music is available, the majority of the files shared on the network are underground independent music.

On the Soulseek website, it is clearly stated that the intention of their application is not to infringe copyright. Instead, it aims “to help unsigned and/or independent artists find a place in the ever-growing music industry, in a place where discussion and the creation of music can take place.”

Similar to other music sharing communities such as the BitTorrent sites What.cd and Waffles.fm, many members are artists themselves, who share their music freely. True to this spirit, members of the Soulseek community founded Soulseek Records (or SLSK Records), a non-profit netlabel where artists publish their music for free, under a Creative Commons license.

Instead of supporting this creative platform, the French music industry continues its witch-hunt, effectively killing their own business. If they are successful, this case, or the lawsuits against the other four p2p clients, will undoubtedly impact other filesharing applications.

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The record labels argue that the Vuze and the others are knowingly distributing software with the purpose to permit unauthorized access to copyrighted works. In essence they are saying that everything, or every application which allows a user to share files, will be indeed used for illegal purposes. In contrast, in the US, companies that don’t encourage their users to commit copyright infringement with their applications, are not acting illegally.

SPPF had already sued the various companies and organizations last year, but until now it has been unclear whether the US based companies behind the applications could be prosecuted under French law. A French court has now ruled that this is indeed possible, which means that they can proceed to court.

Recent French legislation which inspired the labels to go after the P2P companies, suggests that all P2P applications must have a feature to block the transfer of unauthorized copyright works. The clients that are sued by SPPF obviously don’t have such a feature. In fact, it is questionable whether it would be technically possible to develop such a filter. Nevertheless, SPPF demands it, and is claiming millions of dollars in damages for lost revenue.

Vuze CEO Gilles BianRosa stated in a response to TorrentFreak, “While we appreciate the intent of the new French law, we believe SPPF’s complaint is misguided. Vuze is dedicated to the distribution of legitimate content using new technology. In that sense, our interests are aligned with the interests of all content owners, including SPPF’s members, against piracy.”

“We are disappointed that SPPF has taken this approach, given that our business is dedicated to the distribution of legitimate content,” BianRosa added. “SPPF’s claims against Vuze are simply wrong. The Vuze business complies fully with both French and American law. The recent ruling of the French Court was solely on a jurisdictional issue, not on any merits, and we believe it is in error.”

Interestingly, SPPF is also going after Sourceforge, the open source development website, because it hosts the P2P application Shareaza. Putting aside the discussion on the responsibilities of application developers for their users activities, the decision to go after SourceForge for hosting a application that can potentially infringe, is stretching credibility beyond all bounds”

Meanwhile, Vuze has appealed the decision. Separately, the company is suing SPPF for defamation based upon several false and harmful statements made by SPPF about Vuze. A different French Court has denied SPPF’s attempt to derail those claims recently , and is allowing the defamation lawsuit to proceed.

If SPPF succeeds in their case against organizations running the four P2P applications, FTP software and Internet browsers might be next, if they don’t go after Ubuntu and other operating systems first. Perhaps it is even better to shut down the Internet entirely.

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According to the poll of 2,011 people over 15 years old, the French use a diverse range of digital media to store or play pirated content. Of those questioned, 34% said their media players contained pirated files, with 20% admitting they go as far as using external hard drives to store illicit content. The USB storage key was used by 8% of respondents to shift illegal content, with 7% admitting to using mutimedia-capable cellphones.

Although the piracy ‘problem’ seems to be massive in France, it is certainly not limited to that one country. Just over the English Channel from France lies the UK, where an estimated 6 million people engage in online piracy – roughly 10% of the population. Across the pond, in the United States, a 2007 study found that 18 percent of the total US online population downloaded at least 1 movie from the Internet, illegally.

The French survey shows that the ‘problem’ is not limited to the younger generation, as is often assumed – it affects the entire population. The report further suggests that the actual numbers might be much greater than reported, but with news of draconian measures to deal with online piracy making headlines regularly, just how many people are prepared to be honest about their piracy habits?

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