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.