< France Strikes "Three Strikes"


Friday, July 26, 2013

BROOKE GLADSTONE:  This month, France announced that it was finally giving up on HADOPI, the world’s most hated antipiracy law. HADOPI’s strategy was to give illegal downloaders three strikes before kicking them off the Internet. But, after almost four years, millions of euros and only one disconnected user, it was clear that HADOPI wasn't working, at all. Techdirt technology and digital rights reporter Glyn Moody wrote about HADOPI’s short, inglorious life. Welcome to On the Media.

GLYN MOODY:  Thank you very much.

BROOKE GLADSTONE:  So back in 2009, when it was implemented, the French tech community exploded, and not in a good way. Why was HADOPI so controversial? What did it do?

GLYN MOODY:  Basically, it was a pet projects of the then French President Nicolas Sarkozy. He just decided that those wicked pirates in this lawless land –


- known as the Internet must be punished. It was a really quite savage approach. It's notoriously hard to establish who is actually downloading things. But, unfortunately, the way the law was framed was that the person who was named as being responsible was actually the person who ended up getting thrown off the Internet.

BROOKE GLADSTONE:  So, after three years and millions of euros, HADOPI managed to convict two or three people and kick one off the Internet.

GLYN MOODY:  The first person thrown off wasn’t until very recently. It was only the end of last year, September 2012. And it was a really rather extraordinary story because during the court case he actually got his wife to admit that she was the person who had downloaded two songs.

BROOKE GLADSTONE:  Mm-hmm. What were the songs?

GLYN MOODY:  They were actually a couple of Rihanna songs.


But, according to the HADOPI legislation, because her husband, who actually turned out to be her ex-husband shortly afterwards, was the person who was named on the contract. He was the one that was thrown off. So, somebody who didn't download any files still ended up paying a few hundred euros fine. And, in fact, he was so disgusted he said he’d never get the Internet again, which seems a strange way to encourage people to spend more money on digital music.

BROOKE GLADSTONE:  HADOPI died on July 8th. What precipitated that?

GLYN MOODY:  Mm-hmm. Well, as one really very simple reason, an election had taken place previously, and Nicolas Sarkozy had been thrown out, and Francois Hollande, a socialist, had been voted in. Now, originally, he stated that he was going to get rid of HADOPI completely, but once he got power he slightly changed his mind and said, well, maybe we’ll just sort of tweak it a little bit. But nonetheless, it was clear both to him and to his culture minister that HADOPI was a complete and utter failure, where Sarkozy could never admit that it was a failure.

BROOKE GLADSTONE:  Okay, so we were watching this “three strikes, you’re out” situation relatively closely. And I think that people who care about the Internet all around the world were watching France to see how this played out. Does its failure mean the end of a graduated response to piracy in the rest of the world?

GLYN MOODY:  You’re absolutely right. It certainly was seen as a trailblazer. A number of countries actually followed in France’s footsteps. So South Korea, New Zealand and the United Kingdom all adopted legislation, which allowed for the possibility of a three strikes and you're out kind of approach.

What's interesting is that none of those schemes has worked. Nobody now is really talking about cutting people off from the Internet. The Internet now is really like, you know, your water supply or your electricity. It’s a, a fundamental necessity for modern life. So I think people realize that this is a completely disproportionate way of dealing with accusations that you may have downloaded two songs

Now, in the US you have a six- or even seven-strike system, which actually strings out this warning process more and more. And I think that’s not unreasonable, in the sense that you’re really suggesting to people that it’d be a good idea to stop downloading things; otherwise, we might have to do something.

BROOKE GLADSTONE:  Somebody who was explaining that law to us said that ultimately if all their warnings are ignored, nothing happens.

GLYN MOODY:  That's right, but I think the fact that it has taken that form really, again, shows the failure of the French model, that it became clear that was not only inefficient, but it really wasn't ethical.

BROOKE GLADSTONE:  You have been a critic of HADOPI for as long as it has existed. Do you have an alternative approach for stemming piracy, or are you actually defending people's right to pirate?

GLYN MOODY:  Let’s address the, the kind of practical question first:  Can we reduce people making unauthorized downloads? And the answer is yes. As it happens, in the last couple of weeks, two reports have come out about what’s been happening in Norway and in the Netherlands. And what they found was that when legal alternatives to illegal downloading turned up, like Spotify or Rdio or Deezer, the rate of piracy plummeted, in some cases by 90 percent. A year ago, there was similar research in Sweden, the home of Spotify, that showed the number of people downloading unauthorized files dropped by 50 percent once Spotify was available.

What happened before was basically the copyright companies said, well, we don’t really like this digital world, will you keep buying these pieces of plastic? And the people didn’t want to do that. They wanted to have it in a digital format.

BROOKE GLADSTONE:  So if you were going to sum up the piracy problem, in just a couple of sentences, what would you say?

GLYN MOODY:  I would say that there's been a fundamental misunderstanding of what piracy is, this high moral viewpoint that it’s really evil to download files from the Internet. Really, what they’re signaling is that they're not able to get things at a price that they consider to be fair. And sometimes, they can’t even get it at all. Once you make things available in a form that people want, at a price that most people consider fair, they will stop going the difficult route of downloading stuff and getting poor quality copies, and they will get the official stuff from the people offering it, and happily pay for it.

BROOKE GLADSTONE:  Glyn, thank you very much.

GLYN MOODY:  Thank you very much

BROOKE GLADSTONE:  Glyn Moody is a longtime technology and digital rights reporter for Techdirt.



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