Digital Legal Top Stories

Trois-strikes reaches strike three

By | Published on Wednesday 20 July 2011

Three-Strikes

The French three-strikes system is about to reach, well, strike three, which I think is where those who continue to file-share despite receiving two stern warning letters, in French and everything, get their hands chopped off. Yeah, try file-sharing without hands you devilish digi-thieves.

Oh, no, hang on, not even under the French anti-piracy system – possibly the most draconian to date – are any limbs removed. Well, not yet. But the government agency overseeing the French version of the graduated response process for tackling illegal file-sharing, Hadopi, is due to interview just over ten suspected and persistent file-sharers who, web-monitors reckon, have continued to illegally access or share unlicensed content despite receiving two warning letters that doing so infringes copyright.

After said interviews Hadopi officials can choose to put each strike-three case before a judge who can in turn order the defendant’s internet connection be disconnected (though a Hadopi spokesman seems to have told Billboard the defendant’s internet service provider will actually have some discretion regards the penalty the file-sharer faces, perhaps implying the bandwidth throttling that has been considered in the UK might be acceptable, even though we were under the impression being hit by a third strike under the French system would mean full and automatic disconnection).

For fans of big numbers, Billboard also reports that to date the French content industries have filed 18,380,844 complaints against suspected file-sharers to Hadopi, who in turn have requested the names and addresses of the users of 1,023,079 IP addresses (which is so much less than the eighteen million complaints, because its common for multiple complaints to be linked to one IP address, and also because the Hadopi unit doesn’t have limitless resources). From those requests, Hadopi is sitting on the names and addresses of 902,970 suspected file-sharers, of which 470,878 have been sent warning letter number one, and 20,598 warning letter number two.

The whole Hadopi process has been divisive, of course. On one side, some in the French music industry reckon far more than ten or so file-sharers should be facing court action by now, though Hadopi officials point out that the low number, although partly due to resources, is also a sign the first and second warning letters are having some impact in terms of stopping casual file-sharers from accessing illegal content sources.

On the other side of the debate, many still think trios-strikes is too draconian, and those people are likely to get more vocal again once the prospect of actual disconnections becomes a reality. Another potential challenge for Hadopi and the French content industries is if a significant number of the strike-three defendants dispute the allegation they file-share.

We know the web monitoring systems employed by content owners are not 100% reliable, plus of course there is the ‘wi-fi defence’ – ie “I have an open wi-fi network, someone else must have tapped into it and done the file-sharing”, though said in French presumably. The wi-fi defence is one of the big issues for any three-strikes system, because assuming a file-sharer has evidence that they do indeed have an open wi-fi network linked to their IP address (and assuming a defendant is willing to give the defence under oath once it reaches court), then it’s hard to disprove.

Does the three-strikes law imply an obligation on any ISP customer to password protect their wi-fi network to avoid liability for infringement undertaken by a third party via their net connection? One German court ruling said yes, but a more general application of that rule would prove very controversial.

So, interesting times ahead as strike three gets under way in France. Hadopi is also due to publish a report reviewing its progress and successes, or not, in September. As much previously reported, the British version of three-strikes, although technically put in place by last year’s Digital Economy Act, is still being developed and is unlikely to go live, with warning letter number one, until next year. It is still not clear what form strike three might take in the UK, the DEA being very vague on that point.

Other countries are also considering a similar graduated response system for tackling online piracy. South Korea already has it, New Zealand has it in theory though, like in the UK, it’s yet to really be put into action, and Ireland has it if you get your internet off Eircom. As previously reported, US ISPs recently voluntarily signed up to a sort of three-strikes system, though one mainly focused on warning letters rather than sanctions, and one that includes six strikes. Which is interesting, you’d think the Americans would understand the rules of baseball better than the rest of us.



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