The reform of the HADOPI and of
the French graduated response
after the Lescure Review
Nicolas Jondet
University of Edinbu...
Structure
I. Introduction
II. The Hadopi
III. The graduated response
IV. Implementation and efficiency
V. My views
Nicolas...
I. Introduction
Nicolas Jondet - SLS 2013
I. Introduction
• Graduated response / “ three strikes”
Repeat illegal file-sharers face fines (but no more
disconnection)...
I. Introduction
• Problem
- High level of (low-level) piracy by
French internet users
- The existing criminal law response...
A) Sarkozy, HADOPI and the
graduated response
Nicolas Jondet - SLS 2013
Source: AP/BBC
Nicolas Jondet - SLS 2013
1. The 2006 system
Nicolas Jondet - SLS 2013
1. The 2006 system
• The existing system: strong but mostly
ineffective criminal provisions
- Copyright infringement is a
...
1. The 2006 system
• The impossibility to add flexibility to
criminal provisions
- 2006: Wide consensus (courts,
governmen...
2. The Olivennes Report and the
rationale for Hadopi
Nicolas Jondet - SLS 2013
2. The Olivennes Report and the
rationale for Hadopi
• Olivennes Report – November 2007
• A two-pronged approach to curbin...
2. The Olivennes Report and the
rationale for Hadopi
• Postponing solutions based on filtering
technology
- Olivennes: fil...
2. The Olivennes Report and the
rationale for Hadopi
• A graduated response administered by
a dedicated body
- Incompatibi...
3. Enacting a “graduated
response” mechanism
Nicolas Jondet - SLS 2013
3. Enacting a “graduated
response” mechanism
• Hadopi I (June 2009) introduces
1. A new criminal offence for illegal file-...
3.1 The new criminal offence
for illegal file-sharing
Nicolas Jondet - SLS 2013
3.1 The new criminal offence
for illegal file-sharing
• A specific classification for copyright
infringement committed onl...
3.2 The new criminal offence of
gross negligence
• New obligation to monitor one’s internet access
- Obligation to ensure ...
3.2 The new criminal offence of
gross negligence
• An arcane distinction creating new avenues
for prosecution
- The distin...
3.2 The new criminal offence of
gross negligence
• Means that rightholders have an option:
- Go after the misdemeanor of c...
3.3 The use of simplified criminal
procedures for copyright
infringement
Nicolas Jondet - SLS 2013
3.3 The use of simplified criminal
procedures for copyright infringement
• Single-judge for misdemeanors
• Summary procedu...
3.4 The Hadopi and the
disconnection
• In the initial bill
- Creation of the Hadopi
- The Hadopi would be in charge of bot...
4. The need to balance copyright
with other human rights
The Decisions by the Constitutional
Council – June and October 20...
4.1 Balancing copyright and
freedom of expression
Nicolas Jondet - SLS 2013
4.1 Balancing copyright and
freedom of expression
• Copyright as a human right (property)
- Beyond doubt in French and EU ...
4.1 Balancing copyright and
freedom of expression
• Extension of the Freedom of expression to
freedom to access the intern...
4.1 Balancing copyright and
freedom of expression
• Access to the Internet is not an absolute
- Disconnection is allowed
-...
4.2 Assessing other HR
Nicolas Jondet - SLS 2013
4.2 Assessing other HR
• Legality of the new criminal offences for
illegal file-sharing
• Legality of the new criminal off...
4.2 Assessing other HR
• Protection of privacy
- Broad approval of the framework
- Enough protection
- Especially since Ha...
4.2 Assessing other HR
• Due Process - Presumption of innocence
- Article 9, Declaration of 1789: every man is
presumed in...
4.3 Hadopi II – October 2009
Nicolas Jondet - SLS 2013
4.3 Hadopi II – October 2009
• Legal framework established
- Hadopi created
- 10+ decrees
- October 2010: first warning se...
5. The Hadopi, its critics and
the presidential campaign 2012
Nicolas Jondet - SLS 2013
5. The Hadopi, its critics and
the presidential campaign 2012
• Hadopi & Sarkozy
- First such scheme to implement
mass sca...
5. The Hadopi, its critics and
the presidential campaign 2012
• Hadopi and the Socialist Party
- Manifesto of the Socialis...
1. Simpler times
Photo Agnès
GAUDIN
Source:
LaMontagne.fr
Nicolas Jondet - SLS 2013
B) Hollande and the Lescure
Review
Nicolas Jondet - SLS 2013
1. Complex times
Francois Hollande, Credits: AFP/FRED DUFOUR, Source: Le Monde, 29/03/2013
Nicolas Jondet - SLS 2013
1. Complex times
• President Hollande’s
ambivalence
- Even during the campaign
- Adviser pro-Hadopi
- His ministers and PS...
Aurélie Filippetti le 23 mai 2012 (Charles Platiau/Reuters), Source: Les Inrocks
Nicolas Jondet - SLS 2013
2. Mission Lescure
Nicolas Jondet - SLS 2013
Pierre Lescure, Crédits photo : Bertini/Grasset, Source: Le Figaro
Nicolas Jondet - SLS 2013
2. Mission Lescure
• Released in May 2013
- Who is Lescure? Canal+ Vivendi
- Impressive remit
- Impact of the cultural
ind...
2. Mission Lescure
• Three main recommendations for the
graduated response
- Graduated response maintained but
disconnecti...
3. Décret n°2013-596 du 8
juillet 2013
Nicolas Jondet - SLS 2013
3. Décret n°2013-596 du 8
juillet 2013
• Revokes ability to disconnect people guilty
of gross negligence
- Only one discon...
Criminal provisions of the French IP Code against
illegal use of copyright works as of 8 July 2013
Type of Offence Copyrig...
II. The Hadopi
Nicolas Jondet - SLS 2013
A) Missions
Nicolas Jondet - SLS 2013
A) Missions
• Monitor the level of piracy (and thus it own
performance)
- How much piracy
- Factors why people chose pirac...
A) Missions
• Promote the legal offer / legal services
- Assess the breadth and depth of the legal offer
- Accreditation s...
A) Missions
• Monitoring and regulating DRMs
- Missions of the ARMT/ DADVSI law 2006
- Interoperability
- Safeguarding the...
A) Missions
• Protecting copyright online
- Implement the preliminary phase of “graduated
response”
- Only for P2P so far....
B) The Institution
Nicolas Jondet - SLS 2013
B) The Institution
• Independent administrative authority
- Members from the top French institutions,
mostly judiciary
- R...
B) The Institution
• Two branches for two missions
- Le College : the carrot
- La Commission de protection des droits (CPD...
B) The Institution
• Budget
- €8.5-12 million a year
- Financed exclusively by the tax payer
- Compare with €16 million fo...
Tightening of the budget
2010 2011 2012 2013 (Provisional)
10.1
11.8
11.4
8.5
BUDGET OF THE HADOPI (MILLION EUROS)
Nicolas...
III. The Graduated
Response
Nicolas Jondet - SLS 2013
A) Evidence collecting and
choice of avenue
• Investigations by rightholders
- Traditional requirement of accreditation by...
B) Prosecution for “gross
negligence” under the graduated
response
Nicolas Jondet - SLS 2013
1. The warning phase by the
HADOPI
• The HADOPI examines the facts (swiftly)
• Can order ISPs to warn subscriber
- The Had...
2. The judicial phase
• Summary procedure
• Assessment of the case
- Court can assess evidence submitted via Hadopi
- Judg...
IV. Implementation
and efficiency
Nicolas Jondet - SLS 2013
A) Implementation (till Mar. 13)
Nicolas Jondet - SLS 2013
First Warnings
Nicolas Jondet - SLS 2013
Second Warnings
Nicolas Jondet - SLS 2013
Deliberations
Nicolas Jondet - SLS 2013
Court decisions
• 14+ cases brought to the courts
• 4 decisions so far
- €150 fine
- Guilty but no penalty (Condamnation s...
B) Efficiency
Nicolas Jondet - SLS 2013
B) Efficiency
• The big questions
- Does piracy affect sales ?
- Does Hadopi reduce piracy / improve legal sales ?
• Quest...
Study by Danaher et al. (2012)
• Danaher et al. (March 2012) The Effect of
Graduated Response Anti-Piracy Laws on Music
Sa...
Figure 1: iTunes Single Track Unit
Sales Trends (4 majors combined),
France vs. Control (p.13)
Nicolas Jondet - SLS 2013
Figure 2: iTunes Album Unit Sales
Trends (4 majors combined), France
vs. Control (p.15)
Nicolas Jondet - SLS 2013
Study by Danaher et al. (2012)
• Estimated annual increased revenues for
iTunes due to Hadopi
- €4.7 million in track
- €4...
Study by Danaher et al. (2012)
• The positive impact on sales of the Hadopi
varies according to music genre and
sensibilit...
V. My views
Nicolas Jondet - SLS 2013
IV. My views
• I’ve always broadly been in
favour of graduated response
schemes, particularly the
French version
• An acad...
IV. My views
• Not as bad as it sounds
• Successful in deterring P2P, but
not all piracy
• Cost and who foots the bill and...
A) Not as bad as it sounds
Nicolas Jondet - SLS 2013
A) Not as bad as it sounds
• The product of a long, brutal yet healthy
debate
- In the French and EU Parliament, since 200...
A) Not as bad as it sounds
• Disconnection was an inconvenience rather
than a “digital guillotine”
- You can still connect...
A) Not as bad as it sounds
• Arguably better than other forms of
punishment
- Compare to Statutory damages (Jamie Thomas
/...
A) Not as bad as it sounds
• My concerns
- People have not been told what would
constitute a secure connection
- How to se...
B) Better than other “Three
Strikes” elsewhere
Nicolas Jondet - SLS 2013
B) Better than other “Three
Strikes” elsewhere
• South Korea
Ministry of Culture orders disconnection
(French model prior ...
C) Does it work?
Nicolas Jondet - SLS 2013
C) Does it work?
• Short answer: yes
- The mission of the Hadopi is currently limited to
tackling P2P
- The argument that ...
C) Does it work?
• Longer answer: it’s more complicated than
that
- Correlation is not necessarily causation (more
studies...
D) Is it worth it?
Nicolas Jondet - SLS 2013
D) Is it worth it?
• Is the price right? The French system as the
“Rolls Royce” of three strikes
- Expensive / High mainte...
D) Is it worth it?
• Who foots the bill? What do you get in
exchange[My main issue]
- Expensive for ISPs but they have the...
D) Is it worth it?
• My other issue: the Government did not drive a
hard enough bargain on behalf of consumers
- Benefit o...
E) Merging the Hadopi into the
CSA
Nicolas Jondet - SLS 2013
E) Merging the Hadopi into the
CSA
• Will be spun as the demise of Sarkozy’s Hadopi
- A manifesto promise
- Spin can only ...
E) Merging the Hadopi into the
CSA
• Risks
- Less scrutiny than with the small Hadopi,
watchdogs who are instrumental in
m...
Conclusion
• French Graduated response useful experiment
- Seems to have a deterrent effect
- Might have a positive impact...
Thank you !
Find me at
nicolasjondet.com
Nicolas Jondet - SLS 2013
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The reform of the HADOPI and of the French graduated response after the Lescure ReviewJondet sls-2013-hadopi

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Explains the lastest developments in the Hadopi and French graduated response scheme after the Lescure review and the 2013 Decree 2013-596.

Talk of given at the SLS Conference 2013 in Edinburgh

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The reform of the HADOPI and of the French graduated response after the Lescure ReviewJondet sls-2013-hadopi

  1. 1. The reform of the HADOPI and of the French graduated response after the Lescure Review Nicolas Jondet University of Edinburgh On twitter @nicolasjondet website: nicolasjondet.com 2013 SLS Conference – Edinburgh 5th September 2013 Nicolas Jondet - SLS 2013
  2. 2. Structure I. Introduction II. The Hadopi III. The graduated response IV. Implementation and efficiency V. My views Nicolas Jondet - SLS 2013
  3. 3. I. Introduction Nicolas Jondet - SLS 2013
  4. 4. I. Introduction • Graduated response / “ three strikes” Repeat illegal file-sharers face fines (but no more disconnection) after two warnings • HADOPI: “Haute Autorité pour la diffusion des oeuvres et la protection des droits sur Internet ” (High Authority for the dissemination of works and the protection of rights on the internet) • This is a quick overview, for more information see my BILETA presentation on Slideshare Nicolas Jondet - SLS 2013
  5. 5. I. Introduction • Problem - High level of (low-level) piracy by French internet users - The existing criminal law response was ill-suited to address mass piracy - The legal services for cultural goods are not good enough Nicolas Jondet - SLS 2013
  6. 6. A) Sarkozy, HADOPI and the graduated response Nicolas Jondet - SLS 2013
  7. 7. Source: AP/BBC Nicolas Jondet - SLS 2013
  8. 8. 1. The 2006 system Nicolas Jondet - SLS 2013
  9. 9. 1. The 2006 system • The existing system: strong but mostly ineffective criminal provisions - Copyright infringement is a misdemeanor - It is punishable by 3 years in jail and a fine of €300,000 (£250,000) - In practice: low fines and no convictions (only suspended sentences) Nicolas Jondet - SLS 2013
  10. 10. 1. The 2006 system • The impossibility to add flexibility to criminal provisions - 2006: Wide consensus (courts, government, parliament) to adapt criminal provisions - Proposal: Fines €150 for uploading; €38 for downloading - Struck down by the Constitutional court Nicolas Jondet - SLS 2013
  11. 11. 2. The Olivennes Report and the rationale for Hadopi Nicolas Jondet - SLS 2013
  12. 12. 2. The Olivennes Report and the rationale for Hadopi • Olivennes Report – November 2007 • A two-pronged approach to curbing piracy - Improving the legal marketplace for online content (Very interesting approach, more on BILETA presentation & CREATe research) - Enacting a “graduated response” mechanism Nicolas Jondet - SLS 2013
  13. 13. 2. The Olivennes Report and the rationale for Hadopi • Postponing solutions based on filtering technology - Olivennes: filtering not ready and may be disproportionate - Elysée: industry commits to research and collaborate with telecom and internet companies on filtering Nicolas Jondet - SLS 2013
  14. 14. 2. The Olivennes Report and the rationale for Hadopi • A graduated response administered by a dedicated body - Incompatibility of a purely contractual solution left to private parties - Privacy concerns - Proposal: a dedicated body to warn and disconnect subscribers - Bill proposed Nicolas Jondet - SLS 2013
  15. 15. 3. Enacting a “graduated response” mechanism Nicolas Jondet - SLS 2013
  16. 16. 3. Enacting a “graduated response” mechanism • Hadopi I (June 2009) introduces 1. A new criminal offence for illegal file-sharing 2. A new criminal offence of gross negligence 3. The use of summary procedures for copyright infringement 4. The Hadopi in charge of warning and disconnecting repeat offenders Nicolas Jondet - SLS 2013
  17. 17. 3.1 The new criminal offence for illegal file-sharing Nicolas Jondet - SLS 2013
  18. 18. 3.1 The new criminal offence for illegal file-sharing • A specific classification for copyright infringement committed online - Still the misdemeanor of copyright infringement - But when it is committed online, the infringer face: - €300,000 - 3 years jail - And 1 year disconnection Nicolas Jondet - SLS 2013
  19. 19. 3.2 The new criminal offence of gross negligence • New obligation to monitor one’s internet access - Obligation to ensure that one’s internet connection is not used for piracy - Broad definition: covers P2P. Streaming (not yet)? - Breach of this obligation is a petty offence - Penalties: €1,500 and 1 month disconnection (until July 2013) - Software/ “security devices” to enable subscribers to comply with the obligation (not ready yet) Nicolas Jondet - SLS 2013
  20. 20. 3.2 The new criminal offence of gross negligence • An arcane distinction creating new avenues for prosecution - The distinction between online copyright infringement and breach of duty to monitor is hard to understand = we are talking about the same thing (piracy) - Distinction needed to bypass the 2006 decision by Constitutional Court Nicolas Jondet - SLS 2013
  21. 21. 3.2 The new criminal offence of gross negligence • Means that rightholders have an option: - Go after the misdemeanor of copyright infringement - Go after the petty offence of breach of obligation to monitor Nicolas Jondet - SLS 2013
  22. 22. 3.3 The use of simplified criminal procedures for copyright infringement Nicolas Jondet - SLS 2013
  23. 23. 3.3 The use of simplified criminal procedures for copyright infringement • Single-judge for misdemeanors • Summary procedure - No hearing of the parties - Criminal order - Lower penalties (no jail sentences) Nicolas Jondet - SLS 2013
  24. 24. 3.4 The Hadopi and the disconnection • In the initial bill - Creation of the Hadopi - The Hadopi would be in charge of both the warning phase and the disconnection phase Nicolas Jondet - SLS 2013
  25. 25. 4. The need to balance copyright with other human rights The Decisions by the Constitutional Council – June and October 2009 Nicolas Jondet - SLS 2013
  26. 26. 4.1 Balancing copyright and freedom of expression Nicolas Jondet - SLS 2013
  27. 27. 4.1 Balancing copyright and freedom of expression • Copyright as a human right (property) - Beyond doubt in French and EU context Interpretation of: 1789 Declaration & European Conv. HR Explicit: EU Charter of Fundamental Rights (art. 17-2) - Fight against piracy is legitimate - However it must be balance with other rights Nicolas Jondet - SLS 2013
  28. 28. 4.1 Balancing copyright and freedom of expression • Extension of the Freedom of expression to freedom to access the internet - Article 11 of 1789 Declaration HR - Court: right of expression implies freedom to access the internet Nicolas Jondet - SLS 2013
  29. 29. 4.1 Balancing copyright and freedom of expression • Access to the Internet is not an absolute - Disconnection is allowed - It is a proportionate response to piracy - (Disconnection for failure to pay) • But the disconnection for piracy can only be ordered by a court, not an administrative authority - Warning phase: the HADOPI - The sanctions: civil courts Nicolas Jondet - SLS 2013
  30. 30. 4.2 Assessing other HR Nicolas Jondet - SLS 2013
  31. 31. 4.2 Assessing other HR • Legality of the new criminal offences for illegal file-sharing • Legality of the new criminal offences of gross negligence • Due Process - The use of simplified criminal procedures for copyright infringement approved Nicolas Jondet - SLS 2013
  32. 32. 4.2 Assessing other HR • Protection of privacy - Broad approval of the framework - Enough protection - Especially since Hadopi not in charge of disconnections Nicolas Jondet - SLS 2013
  33. 33. 4.2 Assessing other HR • Due Process - Presumption of innocence - Article 9, Declaration of 1789: every man is presumed innocent until proved guilty - The bill allowed the Hadopi to disconnect alleged infringers - Reversing the burden of proof: the subscriber had to prove he had been victim of a fraud - Struck down by the Court Nicolas Jondet - SLS 2013
  34. 34. 4.3 Hadopi II – October 2009 Nicolas Jondet - SLS 2013
  35. 35. 4.3 Hadopi II – October 2009 • Legal framework established - Hadopi created - 10+ decrees - October 2010: first warning sent Nicolas Jondet - SLS 2013
  36. 36. 5. The Hadopi, its critics and the presidential campaign 2012 Nicolas Jondet - SLS 2013
  37. 37. 5. The Hadopi, its critics and the presidential campaign 2012 • Hadopi & Sarkozy - First such scheme to implement mass scale anti file-sharing measures = no one likes that (apart from rightholders) - The pet project of Sarkozy = the pet hate of everyone else (including in his own party) Nicolas Jondet - SLS 2013
  38. 38. 5. The Hadopi, its critics and the presidential campaign 2012 • Hadopi and the Socialist Party - Manifesto of the Socialist Party for abrogation - Part of the anti-Sarkozy platform - Limited impact of the overall result Nicolas Jondet - SLS 2013
  39. 39. 1. Simpler times Photo Agnès GAUDIN Source: LaMontagne.fr Nicolas Jondet - SLS 2013
  40. 40. B) Hollande and the Lescure Review Nicolas Jondet - SLS 2013
  41. 41. 1. Complex times Francois Hollande, Credits: AFP/FRED DUFOUR, Source: Le Monde, 29/03/2013 Nicolas Jondet - SLS 2013
  42. 42. 1. Complex times • President Hollande’s ambivalence - Even during the campaign - Adviser pro-Hadopi - His ministers and PS colleagues are more sanguine Nicolas Jondet - SLS 2013
  43. 43. Aurélie Filippetti le 23 mai 2012 (Charles Platiau/Reuters), Source: Les Inrocks Nicolas Jondet - SLS 2013
  44. 44. 2. Mission Lescure Nicolas Jondet - SLS 2013
  45. 45. Pierre Lescure, Crédits photo : Bertini/Grasset, Source: Le Figaro Nicolas Jondet - SLS 2013
  46. 46. 2. Mission Lescure • Released in May 2013 - Who is Lescure? Canal+ Vivendi - Impressive remit - Impact of the cultural industries on policy making in general and on the socialist party and Hollande in particular - 80 recommendations Nicolas Jondet - SLS 2013
  47. 47. 2. Mission Lescure • Three main recommendations for the graduated response - Graduated response maintained but disconnection removed - Fine reduced to €60 - Hadopi disbanded, its missions transferred to the CSA, the French Media Regulator Nicolas Jondet - SLS 2013
  48. 48. 3. Décret n°2013-596 du 8 juillet 2013 Nicolas Jondet - SLS 2013
  49. 49. 3. Décret n°2013-596 du 8 juillet 2013 • Revokes ability to disconnect people guilty of gross negligence - Only one disconnection so far, likely to be the only one - Fines up to €1500 remain • Ability to disconnect online copyright infringers for up to one year remains Nicolas Jondet - SLS 2013
  50. 50. Criminal provisions of the French IP Code against illegal use of copyright works as of 8 July 2013 Type of Offence Copyright Infringement Online Copyright Infringement Gross Negligence Classification Misdemeanour Misdemeanour Petty Offence Warning Phase HADOPI No No Yes Summary Procedure No Yes Yes Penalties (Maximum Sentences) Jail 3 years 3 years N/A Fine €300,000 €300,000 €1,500 Internet Disconn. N/A 1 year N/ANicolas Jondet - SLS 2013
  51. 51. II. The Hadopi Nicolas Jondet - SLS 2013
  52. 52. A) Missions Nicolas Jondet - SLS 2013
  53. 53. A) Missions • Monitor the level of piracy (and thus it own performance) - How much piracy - Factors why people chose piracy over legal (hint: cost is a big factor) - What could encourage people to switch to legal Nicolas Jondet - SLS 2013
  54. 54. A) Missions • Promote the legal offer / legal services - Assess the breadth and depth of the legal offer - Accreditation system: Label Pur (60+) - Monitor developments in filtering and fingerprinting technology Nicolas Jondet - SLS 2013
  55. 55. A) Missions • Monitoring and regulating DRMs - Missions of the ARMT/ DADVSI law 2006 - Interoperability - Safeguarding the benefit of copyright exceptions - Referral from VLC about interoperability between open source player and Sony Blu Ray DRM (Opinion April 2013) - Referral by the French National Library on DRMs and Copyright Exceptions (pending) Nicolas Jondet - SLS 2013
  56. 56. A) Missions • Protecting copyright online - Implement the preliminary phase of “graduated response” - Only for P2P so far. Possibly soon for streaming and direct downloads - The reason why the Hadopi is famous - Its other missions totally ignored - The mission we are going to focus on Nicolas Jondet - SLS 2013
  57. 57. B) The Institution Nicolas Jondet - SLS 2013
  58. 58. B) The Institution • Independent administrative authority - Members from the top French institutions, mostly judiciary - Rules to avoid conflict of interest Nicolas Jondet - SLS 2013
  59. 59. B) The Institution • Two branches for two missions - Le College : the carrot - La Commission de protection des droits (CPD) : the stick • Hadopi Labs (discontinued in Dec 2012) Nicolas Jondet - SLS 2013
  60. 60. B) The Institution • Budget - €8.5-12 million a year - Financed exclusively by the tax payer - Compare with €16 million for the data protection authority (CNIL / 1978) Nicolas Jondet - SLS 2013
  61. 61. Tightening of the budget 2010 2011 2012 2013 (Provisional) 10.1 11.8 11.4 8.5 BUDGET OF THE HADOPI (MILLION EUROS) Nicolas Jondet - SLS 2013
  62. 62. III. The Graduated Response Nicolas Jondet - SLS 2013
  63. 63. A) Evidence collecting and choice of avenue • Investigations by rightholders - Traditional requirement of accreditation by the judiciary for investigators (sworn agents) - Mass-scale operation must be approved by the Data Protection Authority - Tens of thousands of investigations / day • Rightholders can put their cases - Straight to the criminal courts - Through the HADOPI Nicolas Jondet - SLS 2013
  64. 64. B) Prosecution for “gross negligence” under the graduated response Nicolas Jondet - SLS 2013
  65. 65. 1. The warning phase by the HADOPI • The HADOPI examines the facts (swiftly) • Can order ISPs to warn subscriber - The Hadopi gets information from the ISP (which cannot refuse but can get paid) - First warning by email - Another breach within 6 months = warning in formal letter by recorded mail - Another breach: the Hadopi deliberates as to whether the case should go to the courts Nicolas Jondet - SLS 2013
  66. 66. 2. The judicial phase • Summary procedure • Assessment of the case - Court can assess evidence submitted via Hadopi - Judges have been instructed to assume that the evidence is conclusive and not order new investigations • Fine - Up to €1500 - Since July 2013 no more possibility to disconnect Nicolas Jondet - SLS 2013
  67. 67. IV. Implementation and efficiency Nicolas Jondet - SLS 2013
  68. 68. A) Implementation (till Mar. 13) Nicolas Jondet - SLS 2013
  69. 69. First Warnings Nicolas Jondet - SLS 2013
  70. 70. Second Warnings Nicolas Jondet - SLS 2013
  71. 71. Deliberations Nicolas Jondet - SLS 2013
  72. 72. Court decisions • 14+ cases brought to the courts • 4 decisions so far - €150 fine - Guilty but no penalty (Condamnation sans peine) - Discharge (Relaxe) - One disconnection Nicolas Jondet - SLS 2013
  73. 73. B) Efficiency Nicolas Jondet - SLS 2013
  74. 74. B) Efficiency • The big questions - Does piracy affect sales ? - Does Hadopi reduce piracy / improve legal sales ? • Question of bias and accuracy - In 2009 studies argued that Hadopi was a failure or a success, long before its implementation - Debate on the Recent EU Study over impact of piracy on sales/ Rebuttal by Hadopi Nicolas Jondet - SLS 2013
  75. 75. Study by Danaher et al. (2012) • Danaher et al. (March 2012) The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France, available on SSRN • Data - iTunes sales figures for music in France from July 2008 – May 2011 (4 Majors companies) - Before the start of Hadopi and start of court phase - Control group (UK, Italy, Spain, Germany, and Belgium) Nicolas Jondet - SLS 2013
  76. 76. Figure 1: iTunes Single Track Unit Sales Trends (4 majors combined), France vs. Control (p.13) Nicolas Jondet - SLS 2013
  77. 77. Figure 2: iTunes Album Unit Sales Trends (4 majors combined), France vs. Control (p.15) Nicolas Jondet - SLS 2013
  78. 78. Study by Danaher et al. (2012) • Estimated annual increased revenues for iTunes due to Hadopi - €4.7 million in track - €4.9 million in album - €13.8 million per year for the entire music industry (not just the majors). Nicolas Jondet - SLS 2013
  79. 79. Study by Danaher et al. (2012) • The positive impact on sales of the Hadopi varies according to music genre and sensibility to piracy - The greatest impact for Rap and Hip-Hop which are highly sensible to piracy - Less so for Rock and Pop (average level of piracy) - Negligible for Classical, Christian [???, in France ;-)], Folk and Jazz Nicolas Jondet - SLS 2013
  80. 80. V. My views Nicolas Jondet - SLS 2013
  81. 81. IV. My views • I’ve always broadly been in favour of graduated response schemes, particularly the French version • An academic supporting Hadopi is about as rare as a Nessie sighting • I’ve also had a Windows Phone since 2011, what can I say? ONE MAN WOLFPACK Nicolas Jondet - SLS 2013
  82. 82. IV. My views • Not as bad as it sounds • Successful in deterring P2P, but not all piracy • Cost and who foots the bill and what do taxpayers gets in exchange is my main concern • The Pros and Cons of disbanding the Hadopi and transferring the graduated response to the French media regulator (CSA) ONE MAN WOLFPACK Nicolas Jondet - SLS 2013
  83. 83. A) Not as bad as it sounds Nicolas Jondet - SLS 2013
  84. 84. A) Not as bad as it sounds • The product of a long, brutal yet healthy debate - In the French and EU Parliament, since 2007 - Constitutional approval on Human Rights - Debate in society: La Quadrature (“French EFF”); Pirate Party - Many Godwin points on both side - Very serious concerns: Bourreau-Guggenheim, pressure on employees / freedom of speech Nicolas Jondet - SLS 2013
  85. 85. A) Not as bad as it sounds • Disconnection was an inconvenience rather than a “digital guillotine” - You can still connect elsewhere (work, uni, friends, cafés) - Was seen as a last resort and very expensive to implement - Predictably disconnection was removed from the graduated response (but still there for online copyright infringement) Nicolas Jondet - SLS 2013
  86. 86. A) Not as bad as it sounds • Arguably better than other forms of punishment - Compare to Statutory damages (Jamie Thomas /Joel Tenenbaum) - Thousands of forced (and sometimes unjustified) settlements - Also better than Jail sentences Nicolas Jondet - SLS 2013
  87. 87. A) Not as bad as it sounds • My concerns - People have not been told what would constitute a secure connection - How to secure their connection - Which tools to use (under which certification) Hadopi was meant to do that Nicolas Jondet - SLS 2013
  88. 88. B) Better than other “Three Strikes” elsewhere Nicolas Jondet - SLS 2013
  89. 89. B) Better than other “Three Strikes” elsewhere • South Korea Ministry of Culture orders disconnection (French model prior to the decision of Constitutional Court) • NZ/ US • UK and Irish three strikes - Private parties deal with the system - Less HR compliant Nicolas Jondet - SLS 2013
  90. 90. C) Does it work? Nicolas Jondet - SLS 2013
  91. 91. C) Does it work? • Short answer: yes - The mission of the Hadopi is currently limited to tackling P2P - The argument that the Hadopi was obsolete from the outset disproved by the nearly 8oK first warnings sent every month (P2P still relevant) - The fact that so few cases eventually go to the courts is a sign of success, not of failure = the lower the percentage, the better - P2P is down & Sales of online products are up Nicolas Jondet - SLS 2013
  92. 92. C) Does it work? • Longer answer: it’s more complicated than that - Correlation is not necessarily causation (more studies like that of Danaher et al. needed) - P2P is being replaced by streaming - But Hadopi is looking into streaming (only a decree needed) and going through ISPs an option - Legal services are still not good enough Nicolas Jondet - SLS 2013
  93. 93. D) Is it worth it? Nicolas Jondet - SLS 2013
  94. 94. D) Is it worth it? • Is the price right? The French system as the “Rolls Royce” of three strikes - Expensive / High maintenance - Good compliance with HR - Attempt to address needs of consumers Nicolas Jondet - SLS 2013
  95. 95. D) Is it worth it? • Who foots the bill? What do you get in exchange[My main issue] - Expensive for ISPs but they have the funds and also many have an interest in content protection as distributors of such content (see Vivendi; Orange…) - Expensive for the Tax payer - Argument that rightholders should foot part of the bill, especially if it increases revenues as much as some studies suggest Nicolas Jondet - SLS 2013
  96. 96. D) Is it worth it? • My other issue: the Government did not drive a hard enough bargain on behalf of consumers - Benefit of e-book pricing debatable - Windows release time still not consumer friendly - Various state-financed digtisation projects benefit private companies but still have to bear benefit for consumers - No Netflix in France (see CREATe project)….. - Maybe will change with the implementation of Lescure Nicolas Jondet - SLS 2013
  97. 97. E) Merging the Hadopi into the CSA Nicolas Jondet - SLS 2013
  98. 98. E) Merging the Hadopi into the CSA • Will be spun as the demise of Sarkozy’s Hadopi - A manifesto promise - Spin can only go so far • Will set the graduated response in stone - CSA is long established and powerful authority - Generally speaking it is hard to take away missions from strong authority - What about the budget? Any increase / decrease? Nicolas Jondet - SLS 2013
  99. 99. E) Merging the Hadopi into the CSA • Risks - Less scrutiny than with the small Hadopi, watchdogs who are instrumental in maintaining the balance might lose interest - Very difficult to get rid off, if becomes less necessary - Budget will remain funded only by taxpayers - What about Hadopi’s mission of promoting legal services? Nicolas Jondet - SLS 2013
  100. 100. Conclusion • French Graduated response useful experiment - Seems to have a deterrent effect - Might have a positive impact on sales - Is less brutal (esp. now that no disconnection) and more Human Right compliant than other systems of enforcement - However, too expensive for the Taxpayers to fund alone - Generally, the state could be more forceful in obtaining gains for the consumers - Idea to transfer to CSA will be debated as many would rather have the GR dropped altogether Nicolas Jondet - SLS 2013
  101. 101. Thank you ! Find me at nicolasjondet.com Nicolas Jondet - SLS 2013

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