On May 13, 2009, the French parliament passed a new law, widely referred to as the “HADOPI” law, aimed at curbing down illegal online exchange of copyrighted materials. After briefly describing the main provisions of this law, I will decrypt the French government’s rhetoric in order to demonstrate that the law has little to do with copyright infringement and a lot to do with battling free flows of information and controlling access to information by creating news gates on the internet network – private gates, under the threat of criminal liability for forcibly-enrolled private proxies.
The law, which is a criminal law, features two main provisions. First, under a three-strike system, an administrative authority will send suspected “pirates” a cease and desist notice to stop illegally downloading files. After two notices, the authority will order all French internet service providers to cut-off internet access for the “pirate”, for a period of up to one year. It is worth noting that the cease and desist notices can be sent when the administrative authority is faced with facts that are “likely” to constitute copyright infringement – without the need for any actual proof of the infringement. Second, while the culprit is allowed to appeal the internet-access-suspension verdict itself (and it is unclear as of today whether or not the sentence will be suspended during the appeal process), the cease and desist notices cannot be contested – i.e., not only is the internet user presumed guilty of an offense when it is “likely” that the offense has taken place, but the user does not have the opportunity to prove his innocence. So much for due process in the self-proclaimed “homeland of human rights.”
The second main provision of the law institutes a criminal liability system for each and every person who controls an internet access, such as a Wi-Fi access. Any person whose own connection is used by a third party for illegal downloading will have its connection cut, unless it has “secured” the connection. The law leaves it to the administrative authority to define what a “secured” connection is. In practice, however, the law provides each and every person running a personal Wi-Fi network with a strong incentive to password-protect the connection to prevent the neighbors from accessing it. It is unclear how this will affect Wi-Fi networks ran by cafes, libraries, and other public houses. The phrasing of the law suggests that they should password-protect their networks and not give their patrons the password, in fear that the patrons might use the connection to access illegal materials.
The law is currently under review by the French constitutional council, and the ruling will be issued on or before June 19. Regardless of whether or not the law is struck down, in whole or in part, the law itself, as well as its official reader, provides some very interesting rhetorical insights into the French approach of control over information distribution.
France has a long-standing tradition of content control. This tradition is reflected in the 1881 criminal press law, which sets forth a collection of opinion crimes, including the insult against the President of the Republic, as well as hate speech. France also has a long-standing practice of control over information distribution and over access to information, which reflects its old tradition of political centralization. As far as digital information networks are concerned, for example, the French pre-internet network called the Minitel was fully centralized and administratively censored. Ever since the rise of the internet, however, the French government has been hard at work to fight the free flows of information stemming from the decentralized worldwide network, and to make the internet a lot more like the Minitel, that is, centralized and censored, as I have shown in details here.
The new HADOPI law plays its part in this overarching goal. The incentive – in the form of criminal penalties – provided to each and every person running a personal Wi-Fi network to password-protect said network to prevent its neighbors from accessing it is a good example of how gates are added and flows stopped. Because the law leaves it to the administrative authority to define what a “secured” connection means, it is a bit unclear how the law will affect Wi-Fi networks ran by cafes, libraries, and other public houses. Originally, the government’s intention was to mandate all operators or Wi-Fi networks to only allow access to a list of government-approved “white sites,” in a move reminiscent of earlier attempts to turn the internet into a fully-censored network through the use of administratively-provided “quality labels.” While the government did not follow through with the “white sites” idea, in its current form, the law incites cafes and other public houses to actually completely shut down their networks, in fear that a patron – having been given the network key – would download illegal materials. Perhaps it will simply incite cafes to make copies of patrons’ national identity cards before disclosing the passwords, in order to facilitate enforcement – and protect themselves – in case illegal downloads are carried out through the nodes they control. This would actually closely resemble the way the French national library runs its operation. All patrons must disclose their identity and register for a designated, numbered seat before being permitted in the library. And in order to curb free flows, access to the stacks in the library is not allowed: patrons must lodge written requests for materials for a librarian to fetch said materials. The HADOPI law, therefore, is clearly part of such French tradition of controlling access to information.
In order to justify such gate-keeping apparatus, the rhetoric is both one of fear and one of protection, a traditional rhetoric in French civil liberties (or regulation thereof). There is, the law’s official reader tells us, a “hemorrhage” of cultural goods on the internet, and without legal action, the music, film and book industry cannot survive. More importantly, “the situation is dangerous for internet users” because they risk getting sued by copyright holders!
Fortunately, under the constitution, the law has the right to forbid those acts that are injurious to society and, and a duty protect citizens from “abuses” of liberty.” The gatekeeping apparatus, therefore, is actually there to protect internet users. That is, for example, as of today, one who does not password-protect his Wi-Fi connection risks being sued by copyright holders if his neighbors (or children for that matter) use the connection to download copyrighted materials. Well thanks to the law, and to the newly established criminal liability as an incentive (i.e. the connection risks being cut-off by the state), each user will now know to password protect the connection (cut flows) and therefore be protected. Such benevolence on the part of the State…
In order to justify such gate-keeping apparatus, the rhetoric is both one of fear and one of protection, a traditional rhetoric in French civil liberties (or regulation thereof). The level of hypocrisy on the part of the government is particularly high in this case. For example, in order to justify the fact that the cease and desist notices cannot be contested, the government explains that those notices are actually only “recommendations” to the user. Recommendations which lead to criminal liability if not abided by, that is. And in order to justify the fact that – outside of due process, the penalties will be decided by an administrative authority instead of a judge, the government states that this is because the main purpose of the law is “prevention” – no “risk,” therefore, to be tried by a judge anymore! Such hypocrisy is a traditional rhetorical tool. Just as dictatorships like to call themselves “democratic republic,” the French government likes to call laws that deprive people of freedom, “freedom act.” Such is the case, for example, of the abovementioned 1881 criminal press law, named “Freedom of the Press Act.” In the present case, the high level of hypocrisy in the government’s rhetoric is a good indication that the goals stated are not the goals pursued.
Finally, it is interesting to examine the way in which the government framed the discussion around the new law. We are told by the official reader that the law is essentially meant to save the music, film and book industry by creating – in a typically interventionist fashion, the legal environment necessary for the legal offer of digital cultural goods to be developed. Throughout the reader, the official rhetoric is an economic one. We are told of the “extraordinary opportunity” to turn the network into a “true tool of distribution of information goods,” for the benefit of the “consumer.” The government points out that the “interests of all actors converge.” Those actors are defined as the internet service providers, who want to distribute information goods legally and therefore oppose illegal downloads; the cultural goods industry; and the “consumer,” who wants to access information goods more quickly.
And that’s about it as far as the various actors and interests at stake are concerned. There is never a mention of internet users as citizens, as participants in the democratic discourse, as seekers of knowledge. The discussion on freedom of access to information revolves solely around economic considerations, never around democratic ones. The issues are framed in such a way that the question of spilling effects on democratic principles never enters the discursive realm. With this technique, the government quite conveniently eludes questions such as “should an entire family’s internet access really be cut for a year just because junior downloaded a few songs?;” or “in an open democratic society, should we not favor free flows rather than instill fear of what the neighbor can do and provide criminal incentive to turn internet users into private gatekeepers?”
The title of this commentary put the term “anti-piracy” into quotes.That is to say that the ultimate goal is not copyright. It is control over flows and over access to information.The aim of the law is to create new gates on the internet network – private gates, under the threat of criminal liability for non-compliance by forcibly-enrolled private proxies. This law is only one part of the larger apparatus the French government started building ever since it realized the threats the internet causes to a centralized control model. It must be read as such.
Julien Mailland is a lawyer and an Annenberg Fellow at the University of Southern California, Annenberg School for Communication. He can be reached at his last name at usc.edu.
