Illegal internet file downloads under HADOPI 1 and 2

10 May 2010

Sandrine Rambaud

 

In 2007 the French government requested a commission led by Denis Olivennes to broker an agreement between organisations representing the music and film industry and internet service providers on proposals to combat unlawful file-sharing. This article describes the controversial history of the ensuing legislation, culminating in the eventually enacted HADOPI 2 law.

On the basis of the Olivennes agreement, signed on 23 November 2007, the French government proposed a bill aimed at making internet access subscribers responsible for unlawful use of their access to the internet.

The purpose of this bill was to implement a so-called riposte graduée (graduated response). The main measure created a new independent authority called HADOPI which would have the power, without recourse to a judge, to suspend the internet access of a person whose internet access had been used to pirate any work protected by intellectual property rights, after that person had been notified several times by HADOPI for similar incidents.

The debates regarding this bill brought two camps into conflict. The first one was composed mainly of members of the music and film industry who consider that the pirating of CDs and DVDs via the internet (and in particular via P2P networks) is causing a decrease in CD and DVD sales. The second camp, composed mainly of web users and consumer associations, argues that the entertainment industry should adapt itself to the web, that web users should not be blamed for all the recording industry’s problems, and that the proposed new law would destroy individual freedoms.

After turbulent discussions and several incidents, the “HADOPI 1” law promoting the distribution and the protection of creative works on the internet was passed on 12 June 2009. This law was followed on 28 October 2009 by another law, “HADOPI 2”, due to the French Constitutional Council’s censure of HADOPI 1.

The main provisions of HADOPI 1 after amendment by the French Constitutional Council

The purpose of the law, according to the lawmaker, is both educational and repressive.

However, the Constitutional Council’s censure of HADOPI 1 on 10 June 2009 stripped the law of some of its main provisions, particularly its repressive elements.

The Constitutional Council reasoned that:

  • two fundamental rights exist: the right of property (intellectual property rights among others) and the right to free communication which includes the right of access to the internet: and

  • the lawmaker has to find a balance between these two rights.

The Council added that since HADOPI was an independent administrative authority, but not a court, the lawmaker could not grant HADOPI the power to suspend internet access. According to the Constitutional Council, only a judge may order the suspension of internet access.

This law is based on the principle that internet access subscribers are responsible for the use of their internet access. Since the implementation of a law dated 1 August 2006, internet subscribers have had the obligation to ensure that their access to the internet is not used for pirating works protected by intellectual property rights. However, this law provided no sanction to deal with subscribers who failed to comply with this requirement

HADOPI 1 has amended the French Intellectual Property Code to include a new article repeating these obligations (with some slight differences) on internet access subscribers. Thus internet access subscribers are held responsible for using their internet access to pirate music or movies, and also if a family member, employee or a third party who has hacked into their internet access, performs similar illegal acts using the said internet access.

HADOPI’s stated objectives include, but are not limited to:

  • encouraging and developing legal download platforms; in this respect, HADOPI will have to label websites which provide legal downloads;

  • protecting works against copyright infringement committed via the internet; in particular, HADOPI shall determine the specifications of the devices that should be implemented in order for subscribers to ensure the security of their internet access and shall label these devices.

In addition, with respect to this second objective, the following procedure has been put in place:

  • An agent on oath from some listed organisations (such as collective rights management organisations, or professional defence organisations) shall identify the IP addresses of subscribers whose access has been used to infringe copyrighted works. If the acts in question have been committed less than 6 months before the affidavit, the agent may notify these acts to HADOPI.

  • HADOPI may then request that the relevant ISP provides the contact details of the subscriber whose IP address is under investigation. HADOPI has the right to keep these personal data for the duration of the procedure.

  • HADOPI may then send an email recommendation to the subscriber concerned. In this email, HADOPI will remind the subscriber of their obligation to keep their internet access secure, of the existence of legal download platforms, of the danger of acts of infringement and of the existence of security devices.

If, during the six months following this first recommendation, similar violations are recorded, a second recommendation may be sent by letter with acknowledgement of receipt.

The purpose of this graduated response phase is educational: following these recommendations, web users should, in principle, be convinced to cease acts of infringement via the internet.

Due to the Constitutional Council’s criticism mentioned above, the more repressive elements of the graduated response procedure have been cut out.

Consequently, the French government quickly proposed HADOPI 2 to Parliament.

HADOPI 2

HADOPI 2 was passed on 28 October 2009 and provides protection of intellectual property on the internet through the criminal law. This law was also submitted to the Constitutional Council, but the main provisions were not censured.

This law imposes sanctions on both pirates and internet access subscribers.

Sanctions on pirates

Pirates (illegal downloaders of music or movies via the internet) are considered to have committed an infringement misdemeanour contrary to the French Intellectual Property Code.  This in accordance with existing law.

However, HADOPI 2 introduces a new type of sanction. This type of infringement is traditionally punishable by a fine of up to EUR300,000 and imprisonment of up to three years. Under HADOPI 2, the web user’s internet access may also be suspended for a period not exceeding one year. If the web user benefits from bundled services (e.g. internet, telephone and television), only the internet access element should be suspended. During the suspension period, the pirate must continue to pay for internet access and, if they subscribe to another ISP during the period of the ban, they may be punished by a further fine of up to EUR30,000 and imprisonment of up to two years.

The suspension of internet access cannot be ordered against a company.

The judge must take the circumstances, the seriousness of the infringements and the personality of the pirate (in particular, their business or social activity and their socioeconomic situation) into account. This shows that the lawmaker was particularly aware that the sanction might be disproportionate to the acts committed.

Considering that many acts of this type might be brought before the courts, HADOPI 2 provides that a single judge may render a decision without informing the pirate and without any debate between the parties. However, as soon as the “pirate” receives the judge’s decision, they may challenge this decision within 45 days, following which a traditional procedure shall be followed, in which the web user may defend their case.

Sanctions on internet access subscribers

Internet access subscribers may be punished in the event of “clear negligence” relating to the requirement to secure their internet access. If it is reported during the one-year period following HADOPI’s second recommendation that the internet access subscriber failed to secure their internet access, the subscriber may be punished by a petty offence fine (i.e. a fine of up to EUR1,500) and with the suspension of internet access which cannot exceed one month. Such punishment may only be ordered by a judge. If the web user subscribes to a new internet access provider during the period of suspension ordered by the judge, they may be punished again by a fine of up to EUR 3,750.

Conclusion

Many commentators consider that these laws will be difficult to enforce, that there will always exist a way to circumvent the laws and that only “occasional” (as opposed to persistent) pirates will be convinced by these laws to stop unlawful downloading. In any case, at this stage, no recommendation has yet been sent by HADOPI.