The revised French 3-strikes law, known as Hadopi-2,  has been referred to the country's highest court on the grounds that it continues to attack fundamental rights to free speech and due process .

France's revised law to implement graduated response/3-strikes measures is to follow its predecessor to the Constitutional Council. The  French opposition Socialist group  has made the referral on the primary grounds that the revisions to the law continue to

Attack on liberty in France as Sarkozy's government pushes through the re-written law. And Jacques Toubon is put in charge of new business models ( no joke).

The French government's revision of its protectionist anti-downloading law gives users the right to a judgement but increases the level of surveillance. Will it yet again find itself at loggerheads with EU law?

The French government, desparate to please the creative industries is rushing through a new version of its Creation and Internet law to penalise Internet file-sharing and downloading of copyrighted content .  The re-draft, nicknamed Hadopi 2, retains much of the 3-strikes concept, but  it has been forced to make alterations in light of  the Conseil Constitutionel decision which declared certain elements of the law to be in breach of fundamental rights. On the other hand, it seems to extend the scope to cover not just peer-to-peer file-sharing but files transmitted over any type of electronic communications network. 

If I understand it correctly, the re-work alters the basis of the law  from

France's Constitutional Council has effectively neutered the 3-strikes law. The power to restrict someone's Internet access equates to a restriction of their liberty. Only a judge can make that kind of decision.

The decision of the Conseil Constitutionel was released today. It follows the passing of the Creation and Internet law via an emergency process on 13 May, as a key plank in the French government's strategy to deal with downloading of music and film over the Internet.  This law proposed to set up an authority known as the HADOPI, which would act as intermediary between rights holders organisations and ISPs, and would pass on the allegations from the rights holders with a request to the ISPs to warn or sanction their users.

There has been considerable public debate about the status of the HADOPI, whether it is a court or indeed, if it has any legal authority to sanction member of the public. This is the guts of the issue surrounding the Telecoms Package Amendment 138.

Today's decision makes it clear that

President Sarkozy's  Creation and Internet law, also known as the Hadopi law, which will bring in 3-strikes anti-filesharing measures in France, has been passed by the Assemblee Generale and the Senate. This means that it will shortly become law.

In the Assemblee Generale, it was voted by a narrow majority of 296 votes in favour to 233 votes against. This was the second time it had gone through, after having been rejected on the first occasion. French President Sarkozy and his Culture Minister, Christine Albanel, bent all the French Parliamentary rules to get it through the legislature a second time, in just one month.

The vote is in spite of the European Parliament's opposition to 3-strikes, as  expressed in the Telecoms Package vote

"Le texte est rejete!"

The French government's Hadopi  law to ban file-sharing by cutting people off the Internet has been defeated in a surprise victory for the opposition parties against the ruling Sarkozy regime.

Last Thursday, the law - correctly called  the Creation and Internet law -  was put to a second vote in the Assemblee

3-strikes  law is passed by the French Parliament in late night session. Opposition arguments failed to change its course, and alternative sanctions were squashed.  1000 people  a day are expected to be cut off the Internet under the new law. 

At around 11pm last night, the French Assemblee Nationale voted in favour of the Creation and Internet law . This is the law that will bring in graduated response or 3-strikes measures to clamp down on peer-to-peer filesharing and the uploading of music and television videos onto websites such as  You Tube.  According to French news reports, only 16 Parliamentarians were present for the vote, which

Christine Albanel is put  under pressure over attacks on civil  liberties in the French Creation and Internet (3-strikes)  law and insults the opposition. But government amendments carried and opposition ones defeated.

The second day of the debate in the French Parliament on the Creation and Internet law, which seeks to cut file-sharers off the Internet for downloading copyrighted content, was interrupted by a  double gaffe from the  French culture minister, Christine Albanel. Under fire from opposition Socialist and Left parties over her 3-strikes proposals,  she accused the opposition members  of creating a caricature of  the Hadopi authority as 'some sort of Gestapo'. In France, the use of the word 'gestapo'  represents a serious insult, and she was forced to retract her statement. 

It came in the middle of a debate on Article 2 of the law, which sets out the functions and structure of the Hadopi - the authority which will oversee the 3-strikes measures. Madame Albanel  was responding to an attack from the opposition that the Creation and Internet  law made an assumption that the person accused is guilty, unless they can prove their own innocence, reversing the legal principle of presumption of innocence in  European law. It followed a long series of opposition accusations that the Hadopi represents an attack on civil liberties -  which also include the lack of privacy

French opposition politicians accused the Sarkozy regime of waging war on France's youth, in the  first day of debate on the Creation and Internet law in the French Parliament .  In a polarised debate - ‘Internet users versus ‘la creation' -   415 amendments were tabled.

***There is a  live webcast of the French Parliament debate on the Creation and Internet law. ***

Will Madame Albanel, the French culture minister,  get her way?  The French  Creation and Internet law (also known as the Hadopi or 3-strikes law) is creating a deep divide  the French Parliament (Assemblée Nationale), including a riftt within President Sarkozy's own UMP party.

The law is an 'anti-piracy' measure, and seeks to put in place a graduated response or 3-strikes regime of penalties for French Internet users who download. It is particularly targetting peer-to-peer file-sharers. The polarisation of views was  evident in watching the first day of the debate, which was yesterday (11 March). Opposition politicians accused Mme Albanel and the Sarkozy government  of  ‘liberticide' and waging war on France's youth. They attacked the law for its proposals to police the ‘Net, creating ‘Orwellian

The Creation and Internet law - also known as the Hadopi law - which proposes to bring in  graduated response /3 strikes  measures to enforce copyright, goes to the French Parliament - Assemblee Nationale - this week.

The debate was due to begin on 10 March, according to the Assemblee Nationale agenda. However, a debate on hospitals took priority. The Creation and Internet law debate  is now expected to begin this evening (11 March). 

The Assemblee Nationale  website is here.

It looks like it will be available to view via a webstream. The webstream should be here . 

Note, this is a postponement from the previously reported date of 4 March. 

France's Minister of Culture Christine Albanel, wants public wifi hotspots to use a State-approved whitelist of websites. Like the white witch of Narnia, is she condemning her country to a hundred years of cyber-winter?

Reports in the French media say that Christine Albanel, the Minister of culture who is responsible for the graduated response,  Hadopi law , intends to make public access wifi services use whitelists  is  as a means of stopping people downloading copyrighted content. So desperate is she, that not one song or movie should be freely downloaded, that she wants to lock out the millions of businesses who have invested in e-commerce or promotional  sites, as well as other media sites and blogs which contribute to the Information Society. She wants to bring down ‘a white portcullis'  - medieval security for the 21^st century.

Her comments were reported on the French website PC Inpact , which has also got hold of the original report that briefed Mme Albanel . It also isn't clear just what wifi will have to implement the whitelist, whether it is just very large public ones, or private residential - which would mean a large majority of broadband users.

Her plan has been criticised by citizens groups as a ‘return to a state'controlled network'. 

It made me think of a character in the CS Lewis stories, the Chronicles of Narnia - the white witch, who condemned the land to a hundred years of winter. If she pursues the white list idea, then Mme Albanel, like the white witch, will condemn France to a long cyber-winter.

Sadly, this is not an extreme view, but a logical consequence. Whitelists are the opposite of blacklists. Whitelists contain what is permitted. Blacklists contain what is not permitted. So a whitelist will be a list of government-approved websites. Given the sheer scale of the Internet inside and outside France, the list will by necessity, only contain a small number of the total number of websites that exist.

Mme Albanel says

The European Commission has asked the French government to clarify a number of points in respect of its Creation and Internet law, which will impose graduated response / 3 strikes measures onto Internet users.

The Commission’s requests have been made public in what appears to be a leaked document, published by the French news website La Tribune. In particular, it has asked for clarification on internal market and fundamental rights issues. It wants the information before the law is adopted,  and therefore appears to be asking France for a  temporary halt on the process until these matters are clarified:

"Les autorités françaises sont invitées à prendre en considération les remarques qui précédent ainsi qu'à fournir les clarifications demandées avant de procéder à l'adoption de leur projet notifié"

Interestingly, the Commission also confirms that the ‘fight against piracy’ and ‘co-operation’ between telecoms operators and rights holders for this purpose, is being discussed currently in the European Parliament and the Council of Ministers – in the context of the Telecoms Package review. This is an admission from the Commission which its PR material seeks to gloss over. And the Commission calls for a balanced approach in the handling of filtering measures in the Universal Services directive.

Specific matters on which

A French court decision earlier this month means that a law suit against the open source software hub, SourceForge, and three peer-to-peer sites including Vuze, can go ahead. If anything signals that graduated response and "co-operation" measures represent an attack on the Internet industry, this could be it.

A Paris court has decided that US-based owners of Internet services can be sued in France under French law, according to a report on the French news site Liberation . The ruling applies to case filed by the French music producers association, the SPPF (Societe de producteurs de phonogrammes francaises) in June  2007. The case was filed against three  US-based organisations - Sourceforge, Vuze, Morpheus -  and Limewire was added at the end of 2007. 

The SPPF accused them of copyright infringement, after having obtained evidence via

I have written a briefing paper on the French Creation and Internet law (Project de Loi favorisant la diffusion et la protection de la creation sur l’Internet).

Called The French law on Creation and Internet – contracting for surveillance it asks the question whether the new law will usher in a new era of electronic surveillance. This is the law which will support graduated response / 3 strikes measures. The paper  summarises the key elements of th law. Peer-to-peer downloads and user-generated content sites will be monitored for potential breaches of copyright - this is self-evident, it is the only way that the rights-holders can collect the evidence. Web surfing records will have to be trawled to link the user to the alleged infringing content - again, this is the only way it can be done. And people at home will have to have a form of self-imposed surveillance, in order to stay within the law, although it is not yet totally clear how this is envisaged to operate. But it will all be in their contract with their Internet Service Provider - and although not well understood, the contract is the mechanism for implementing  the law.

You can read the paper by downloading it here.

Discussion of the new law in the French Senate brought forward to 29 October.

Reports in the French media are saying that the French government has brought forward the vote on graduated response in the Senate. It will now take place on 29 October instead of 18 November as originally scheduled.

The new date gives less time for public debate on the law, which, it is claimed, contravenes  European law.   In particular, it goes  against the review of telecoms law as voted recently in the European Parliament ( Telecoms Package).

The European Commission  is expected to give its view on the compatibility issue on 23rd October.  The commission can block a member state from adopting a law if that law is in conflict with any proposed measures at European level.

It is also becoming evident that the French government will use its power as President of the EU, to attempt to eradicate the measures opposing graduated response, as voted in the European Parliament on 24 September for the  Telecoms Package.

Silicon.fr  

Echos du Net  

Le Monde Informatique  

Liberation 

A new law, known as the Loi HADOPI after the authority which will oversee the implementation ( the High Authority for the diffusion of content and protection of rights on the Internet) sets out how users may be sanctioned by ISPs on behalf of copyright owners. Information will be passed between them via the HADOPI authority to get around data protection rules. Data retention laws will also be amended to enable the data to be stored for a year and accessed for the purposes of copyright protection.

Users will receive an electronic and a written warning, before being threatened with suspension of their account and ultimately termination (hence 3 strikes and you’re out!’. The electronic warnings will be sent to thousands of users, using an automated system. ISPs will be forced to check a blacklist of terminated users before signing up new customers, and fined if they fail to do so.

And a new Charter for ISPs, which will mandate the filtering of content. Filtering means the ISPs will check for anyone using P2P software and may slow it down or block it. They may also – depending on how it is implemented – be asked to open every packet of data to inspect it for copyrighted content. This would be the equivalent of asking the post office to open every envelope in case it contained copyrighted material.

The law is in draft form and is in the early stages of the French legislative process. 

The rationale for the law is that the French music industry has seen a 50% drop in volume and value over the past five years. France is concerned about the future of its cultural industries, which are importantly economically and culturally. The French cultural industry has collaborated with the Hollywood studios and the IFPI to lobby for copyright enforcement measures.