The French Government has vowed to press on with its plan to introduce anti-piracy legislation that would require ISPs to disconnect subscribers involved in multiple instances of illegal file-sharing. The statement made by the French Government came in response to the adoption by the European Parliament of a non-binding resolution condemning such disconnections as disproportionate and contrary to human rights. The Government plans to introduce its “graduated response” (or ‘three strikes’) bill before the French Parliament in June/ July 2008.

On April 11, the French Ministry of Culture told Numerama.com, an internet news website, that the bill proposing the introduction of the “graduated response” (réponse graduée) would be presented to the cabinet (the Conseil des Ministres) in May in order to be introduced for discussion in Parliament in June or July.[1]

Under the “graduated response” proposal, Internet Service Providers (ISPs) would be required to send notifications to those of their subscribers suspected of illegal-file sharing, asking them to stop their unlawful activities. ISPs would then have to terminate the internet connection of subscribers persisting in their illegal file-sharing.

Many details of the proposal are still unclear such as the number of warnings before disconnection, the length of disconnections or, more crucially, the level of judicial oversight and will be debated in Parliament. Eventually, the final legislation on the “graduated response” might not correspond to a “three strikes and you’re out” type of scheme, the expression by which it is often referred to in the English-speaking world. As a side note, linguists might object to the use of the expression “three-strikes and you’re out” to describe a scheme devised in France, a country where the expression has no resonance nor translation since baseball; the sport from which it derives, is an aspect of Americana that has remained totally alien to French culture.

Leaving aside the details, legal or linguistic, the idea of entrusting ISPs with the duty and power to enforce copyright law by disconnecting their customers is a controversial one. So controversial that even the European Parliament, home of many pro copyright enforcement legislations, voiced its concern over the French project.

The European resolution condemning “interruptions of internet access”
On April 10, the European Parliament adopted a resolution on the cultural industries, which included a firm condemnation of the kind of disconnections envisaged by France.[2]

In paragraph 23 of the resolution, the European Parliament “Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society;” and “calls on the Commission and the Member States, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.”[3]

Unsurprisingly, the first part of the amendment which states the benefits of internet was adopted by an overwhelming majority (575 for; 52 against).[4] However, the second part of the amendment, which condemns internet disconnections as conflicting with civil liberties and human rights, was only very narrowly adopted (314 for; 297 against).[5] Interestingly, the vote was not made along party lines. Although the amendment was written by the Rapporteur Guy Bono and submitted notably by former French Prime Minister Michel Rocard, both French members of the Socialist Group in the European Parliament, it has been adopted by many conservative MEPs.

Although never explicitly mentioned, France and its “graduated response” are clearly targeted by the resolution. The Rapporteur Guy Bono had strong words about the kind of schemes envisaged by France. He told the plenary session: “I am firmly opposed to the position of some Member States, whose repressive measures are dictated by industries that have been unable to change their business model to face necessities imposed by the information society. The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion.”[6]

The wording of the resolution is as clear and damning as it can be. However, as most commentators noted, the text has no legal force.[7] It is therefore not surprising that the French Government does not feel compelled to succumb to the purely moral pressure exerted by the European Parliament over this issue. France has been known to resist far greater pressure from Brussels, for instance on budget deficit levels.

The French Government is pressing on regardless
When contacted by Numerama, the Ministry of Culture, which is in charge of preparing the bill on the “graduated response”, stressed the non binding nature of the European resolution.

The officials at the Ministry of Culture also argued that the system envisaged was hardly against human rights and that it was in any case better than criminal sanctions.

Finally, and somewhat surprisingly, the Ministry said that the European resolution should not be construed as a pre-emptive vote against the graduated response, arguing that the European Parliament had adopted the amendment without having a complete understanding of the French proposal. A claim that Christine Albanel (picture), the Culture Minister, made herself a week later (April 18), saying that “the European Parliament did not have a good understanding of what we plan to do” and adding that “we will have to explain it to them”.[8]

There will indeed by a lot of explaining to do! The Ministry of Culture plans to present the bill to the cabinet at the end of May for it to be introduced in Parliament in June or July.

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