Post authored by Policy Intern Cody Duncan and Legal Intern Satie Munn

As reported by the New York Times, it appears that the French government is taking steps to make changes to HADOPI (known by its French acronym) — the agency charged with enforcing the country’s “three strikes” anti-piracy regime.

In an effort to crack down on digital media piracy, France passed legislation in 2009 imposing substantial penalties on citizens who engage in illegal file sharing. Under this legislation, users receive two warnings regarding their alleged unlawful behavior with a third offense potentially resulting in suspension of their internet service for two months to a year.

Four years later, the law (as it stands) may be in jeopardy. If reports are to be believed, French President François Hollande intends to shutter HADOPI and reduce the penalties associated with digital media piracy. One report prepared for the government suggests implementing a €60 ($78) fine for repeat offenders rather than disconnecting their Internet access. The French minister in charge of Internet policy, Fleur Pellerin, supports such a change, saying, “Today, it’s not possible to cut off Internet access. It’s something like cutting off water.”

FMC’s Casey Rae will participate in a panel discussion on digital copyright enforcement during the World Creators Summit in Washington, DC from June 4-5 (our session is at 11:30 AM on Wednesday, June 5). Interestingly, the conversation also includes Sarah Jacquier, Director of Legal Affairs of HADOPI. This is in addition to Jill Lesser, Director, Centre for Copyright Information; Satoshi Watanabe, Deputy General Manager of General Affairs Bureau, JASRAC. Helienne Lindvall, songwriter, musician and Music & Media Columnist for The Guardian, will moderate.

Back to the news. So-called “graduated response” responses to copyright infringement have been considered or implemented by countries besides France. South Korea adopted similar anti-piracy measures the same year, which also included cutting off a user’s connection. Since the South Korean law went into effect, more than 400 Internet accounts or web sites have been suspended.

The United States has taken a slightly different approach to graduated response. In 2011, negotiations between between rightsholders (like the major labels and motion picture studios) and Internet Service Providers (like Comcast, Verizon, AT&T) produced a “Memorandum of Understanding.” This memo was used as the basis for the Copyright Alert System (CAS), which launched in February 2013. Unlike its French counterpart, the CAS — which is a voluntary market-based policy, not law — does not include cutting off users’ internet service, although there are certainly some consequences for repeat offenders. (Read FMC’s analysis of the CAS here; our Billboard Op-Ed here.)

The United States model, which emphasises transparency and private best practice agreements, reflects a policy focused on educating users rather than enacting punitive measures. The potential changes in French enforcement policy, particularly the decision to replace suspension of a violator’s internet service with fines, would likely bring France closer to the CAS system. 

Arriving in the wake of stalled legislative proposals around copyright enforcement, reactions to American graduated response were, perhaps understandably, dramatic. Let us be clear: FMC would welcome any positive impact the CAS has on discouraging piracy and increasing consumer adoption of legal, licensed services. But since the system is only three months old, it is likely too soon to guage its impact. And, as the NYT article about HADOPI points out, it’s not always easy to reach hard-and-fast conclusions about effectiveness.

Here’s what we mean: South Korea’s graduated response program coincides with recording industry revenue inreases of around 26 percent from 2008 to 2012. Yet industry earnings fell by 6.7 percent in France during the first quarter of the year. However, as the Times noted, one possible explanation for South Korean gains is the recent emergence of the K-Pop phenomenon. Whether legislation enacted by either country is responsible for these numbers remains an open question, and one that is certain to be considered on Wednesday at the World Creators Summit.