#! /blog

HADOPI's nearly law, but a flawed one

On 15 September, the French Assembly approved the three-strikes anti-"piracy" legislation. When it gets through the second stage and a final draft, it will become law.

The almost-law states that people accused of copyright infringement (or "piracy") will first receive a warning e-mail, then an official letter, then they will lose their internet connection for a year (whilst still paying their internet connection bill).

Throughout this three-step process, the accused has no opportunity to defend himself. He can only appeal once disconnected.

When the accused appeals, he will find himself before a judge and - hopefully - a due process of law. Unfortunately, once the accused appeals he can, aside from the disconnection, be punished with a €300,000 fine or a prison sentence.

Obviously, those punishments do not fit the supposed crime whatsoever. A prison sentence for non-commercial copyright infringement, where the alleged copyright terrorist did not profit at all from his supposed crime? A €300,000 fine? Someone selling "pirated" DVDs, and getting a big profit from it, would receive a lesser punishment in most Western countries!

Of course, this piece of wannabe-legislation that would be better off in the gutter, being vomited upon by a drunk teenager, has more flaws than just the above...

The European Convention on Human Rights states that any person charged with a criminal offence shall be considered innocent until proven guilty. An accusation is never enough to punish someone - even if the punishment is as "light" as cutting off the person's internet access.

More importantly, the Convention's Article 6, §3 says (in short) that everyone charged with a criminal offence has to be informed of this in detail and has to be able to defend himself. This law does not allow the accused to defend himself at all - unless he appeals after the (first) punishment is meted out.
Copyright infringement is, as for now, not considered a criminal but civil offence. Therefore, this clause could be ignored; however, the accused is prosecuted by the government from the start. This goes way beyond an interested party suing another party for compensation (as generally would happen with a civil crime): it's pushing alleged copyright terrorists into criminality, together with murderers, rapists and burglars.

The first warning e-mail: as the government is not expected to admit they know your 'real' e-mail address, will the warning be send to the standard e-mail address a customer receives with his internet connection (i.e. luser@orange.fr), and a lot of people don't use? And for those who do use their ISP-allocated e-mail address, how many check their Junk folder? Because of the amount of spam that is sent around the internet, junk filters are often rather strict - and with the amount of spam most people receive, who even dares to look at their Junk folder?

An IP address is as much evidence as a drunk, blind schizophrenic's witness statement. Couple that with the inability to defend oneself and you've got yourself a judicial disaster - of which the only victim will be the accused.

Once the accused can appeal (when he's already been punished by disconnection), he faces - if convicted - much harsher punishment which is possibly unfounded. The French government is simply trying to discourage people from appealing by threatening them with terrifying results: therefore, only a few people dare to appeal, and most people will automatically admit guilt by not appealing.

It's great for the government's statistics, but unfortunately not so great for the accused victims of this ridiculous law.

And, to top off all of the above: we don't need a new law. There are already laws in place protecting the rights of the copyright holders (as flawed as copyright law on itself may be). However, under current law, they have a long process to follow and, worst of all, they have to provide evidence to prove that the accused is guilty.

This new law will greatly accommodate the government's friends in the so-called creative industries. Surely, their sales will go up. Oh, wait, they won't - because "pirates" buy more music than anyone else (mirror). But they won't be buying it from prison, or when they're trying to pay off a €300,000 fine.

That is, of course, assuming that they're at all guilty. Which, as the geekier ones among us know, can never be proven beyond doubt with a simple IP address. Ever.

[edited to add - 22 September 2009:]
Today, the French Assembly approved the "HADOPI 2" law. Yesterday, 21 September 2009, the proposal had already been approved in the Senate by 13 votes pro, 6 votes against, and one undecided - yes, that's twenty votes. Twenty senators (out of 343) turned up for their job that day: the Democratic Machine© in action!

17 September 2009