| The French Government recommends judicial moderation in P2P cases (Circulaire CRIM 2007-1/G3-030107 3 janvier 2007) |
|
| Written by Nicolas Jondet | |||
| Friday, 02 March 2007 13:21 | |||
 The Ministry of Justice has provided recommendations to the French judiciary on how acts of illegal file-sharing should be prosecuted and punished. The Government advocates for a measured response that would use the full force of the law against providers of peer-to-peer (P2P) software and uploaders, but leave most downloaders facing only small fines. Under French copyright law every act relating to illegal file-sharing, including downloading, is regarded as a copyright infringement. Such infringement is a criminal offence punishable by a three year jail sentence and a €300,000 fine. However, the Ministry of Justice has established, in a circulaire (a non-binding administrative memo) dated January 3, a hierarchy of the acts of file-sharing and recommended that they should be prosecuted and punished according to their seriousness (circulaire, p.9). The main distinction is between the people who enable and nurture piracy and those who merely benefit from it. 1. Providers of piracy-enabling P2P software should face the full extent of the law In order to fight piracy the 2006 copyright law (known as DADVSI ) modified the Intellectual Property Code (IPC) by introducing a new criminal offence against providers of P2P software. According to the IPC the fact of knowingly, publishing, distributing, making available or promoting (including through advertising) to the public a software obviously designed for the illegal dissemination of protected works is punished by a three year jail sentence and a €300,000 fine (IPC, Article L. 335-2-1). In the circulaire, the Government explains that this provision is intended for piracy-enabling P2P software and “does not apply to publishers or distributors of software designed for the exchange of data and files other than illegal copies of copyrighted works (p. 10)”. The difficulty, that the circulaire does not address (as Rees points out), is how to determine when a P2P software is “obviously designed for the illegal dissemination of protected works”, as most P2P software can equally be used for both legitimate and illegitimate purposes. The Courts are left to determine on a case-by-case basis which P2P software were designed to allow piracy. The Government advocates that publishers and providers of such piracy-enabling P2P software should face the full force of the law. This means not only tough sentences that will act as a deterrent but also the use of other powers such as the confiscation of the proceeds of the illegal activities, the publication in media, including online media, of the sentence or the shutting down of the premises where the offences were committed (p. 10). 2. Uploaders should be punished according to their involvement in the piracy chain Making available illegal copies to the public through the act of uploading is also classified as copyright infringement and therefore entails a sentence of up to three years in jail and a €300,000 fine (IPC, Articles L. 122-4, L. 122-5, L.335-3 and 335-4). The Government argues that all acts of uploading harm the commercial exploitation of copyrighted works but that some acts are more serious than others and should be punished accordingly (p.11). The crucial criterion here is the timeframe whithin which the upload was made. For the Government, the initial ‘making available’ of copies, especially when made before the official release of the original copyrighted work, for example, before the theatrical or DVD release of a movie, should be the most severely punished offence. Uploading illegal copies after the release of the original work would entail a lesser punishment. However, the Government advises the courts to take into consideration the closeness of the upload to the date of the official release. The closer to the official release, the more serious the offence, as it hinders the commercial success of the work. Willful participation in the illegal dissemination of works which have been officially available for a long time should be the least punished offence. The Government says that the fact that “an important number of illegal copies are already available can be taken into account by the courts” [to lower the sentence]. More importantly, perhaps, the circulaire specifies that should not be considered as a willful uploader, the internet user whose P2P software is set to automatically share the downloaded files (p.12). 3. Downloaders should only face fines but not jail sentences Under the IPC, acts of downloading are regarded as copyright infringements (IPC, Article L. 122-3) and are punished by a three-year jail sentence and a €300,000 fine. The Government is unambiguous about the fact that these offences should be prosecuted and punished. It notably makes clear that acts of downloading are not covered by the private copying exception, and that, therefore, downloaders cannot use this exception as a defense (p.13). The circulaire quotes two recent decisions by the Cour de Cassation (28 February 2006 and 30 May 2006 ) which have virtually discarded the use of the private copying defense in piracy cases. However, the Government thinks that “people who download are undoubtedly less responsible than those who [at the upstream] allow for those acts to be committed.” Downloaders “benefit and sometime contribute to a system without being at its origin”. In the eyes of the Government, downloaders sit at the bottom of the responsibility chain, below software providers and uploaders (p.12). Accordingly, the Government recommends that downloaders only be sentenced to fines, not jail terms (p.12). The amount of the fine should depend on whether: - The downloader is a re-offender - The amount of downloading - The downloading happened before the official release of the protected work - The downloading of large amount of files is followed by their automatic dissemination when a user has allowed the P2P software to share his personal file collection. Conclusion In the circulaire, the Government does not specifically set jail and fines sentences, as Champeau points out, but it clearly states its desired judicial policy in fighting piracy: the courts should exert the full force of the law against those who enable piracy not individual downloaders. These recommendations should not come as a surprise as they reflect the position of the Government during the debate over the DADVSI law. The Ministry of Culture had proposed the adoption of “a gradual response” (réponse graduée) maintaining tough sentences for software publishers but “decriminalising” acts of file-sharing by individuals by lowering the maximum sentence from the €300,000 fine and three years in jail to a mere maximum fine of €38 for downloading and €150 for uploading (see Jondet ) . This “gradual response” was, to a large extent, the reflexion of the courts’ moderate application of criminal provisions. An exhaustive analysis of courts decisions by Ferrero shows that no one had ever been put in jail in piracy cases (in few cases only suspended jail sentences were pronounced) and that fines had been very moderate (most of them suspended fines and never above €3,000). During the discussion of the law, a trade union representing the judges even asked for the decriminalisation (Tribune de M. Dominique Barella, président de l’Union syndicale des magistrats. Libération, 14 mars 2005). This “gradual response” requested by the judiciary, proposed by the Government and adopted by both houses of parliament was eventually struck down by the Constitutional Council on July 27, 2006. As Legalis.net argues, the circulaire allows the Government to by-pass the decision of the Constitutional Council. In any case, this decision had no significant impact on subsequent P2P court decisions and to a large extent, the circulaire acknowledges and validates the moderate application of criminal sentences by the French judiciary. Sources Media - Marc Rees, P2P et DADVSI, la politique pénale est enfin connue. PCinpact.com, 20 février 2007. - Estelle Dumout, Peer-to-peer: le gouvernement précise les sanctions à appliquer. ZDNet France, 21 février 2007. - DADVSI : le retour de la sanction graduée. Legalis.net, 26 février 2007. Court decisions - Décision du Conseil constitutionnel n° 2006-540 DC du 27 juillet 2006 (partiellement conforme) Comments Illustration: - From Amiga-Planet Please report any technical, legal or linguistic error. You can do that through the contact section. It would be very helpful. Many thanks.
|