[A2k] The sores of the French three-strike approach law

[Philippe Aigrain]

My reaction to the European Commission comments further to the notification=
 by
the French governement of its law proposal.

Philippe Aigrain
----
http://paigrain.debatpublic.net/?p=3D449&lp_lang_view=3Den

The European Commission has sent to the French government its comments on t=
he
Creation and Internet law proposal (the French three-strike approach law
proposal). They constitute a detailed analysis of the text from the view
point of its compatibility with the European and international legal
framework. The comments analyze in particular issues related to fundamental
rights and to the liability limitation regimes that have made possible the
development of the Internet and the Web. One could highlight the parallelis=
m
with many arguments that were put forward by La Quadrature du Net (Squaring
the Net) to justify its opposition to the text. However, the Commission=E2=
=80=99s
analysis also points to several obstacles that had escaped our attention.

A synthesis of the Commission=E2=80=99s comments will be soon be published =
on the
Quadrature du Net site. The comments are of course polite, and take care to
leave open the possibility for the French government to justify and amend i=
ts
proposals. However, one of the issues raised, and the context in which it i=
s
raised, announce a long and painful death for the Creation and Internet law
proposal. Authoritarian stubbornness may lead to the text being adopted.
However, if it is the case, it will be in such a state that the law will jo=
in
the long list of laws, decrees, charters and policies whose only result was
to further delay the positive organization of free non-market exchange of
digital works over the Internet and the contribution of Internet users to
part of their funding.

Let=E2=80=99s see what is the matter. From the start, I claimed that the mo=
st
offending (to fundamental rights) aspect of the law proposal lies in the
heart of =E2=80=9Cgraduated response=E2=80=9D : the warning and threats add=
ressed to Internet
users in the name of =E2=80=9Cpedagogy=E2=80=9D. Let=E2=80=99s see what the=
 Commission has to say
about them [my translation] :

    As the notified project creates an objective responsibility of the
Internet access subscriber for the lack of securization of this acces, that
could lead to a copyright infringement, sanctioned by a disconnection from
the network, the fact that subscribers receiving the recommandations that a=
re
addressed in a systematic manner can not submit against them could endanger
the fundamental right to an equitable trial.

and further :

    In order to reinforce the legal security of the mechanism, it would be
important for the notification of the subscriber planned for in article L.
331-24 of the notified project to mention also the object of the alleged
infringement (downloaded titles, dates, etc.) and for the first message sen=
t
to the Internet user suspected of piracy to be also possibly appealable, as
the second and third ones.

It can not be clearer: contradictory proceedings and explicit accusations f=
rom
the start of the process are the sole warranty of an equitable procedure.
This places the Bono/Cohn-Bendit/Roithova amendment in what was always its
function: reminding us of fundamental rights that hold independently of the
amendment. Where are these rights stated? The Commission reminds us that th=
ey
are written in the European Convention of Human Rights and the European
Charter of Fundamental Rights:

    From the view point of fundamental rights recognized in the European
Convention of Human Rights and the European Charter of Fundamental Rights,
the notified project raised issues relative to the right to an equitable
trial (article 6 of ECHR, articles 48 and 49 of the Charter) in the frame o=
f
the pegagogical measures that are envisaged. [...]

One could have added articles 8 and 10 of the Universal Declaration of Huma=
n
Rights whose 60th birthday we will celebrate next week. Is the French
government planning to strike out these provisions together with the
Bono/Cohn-Bendit/Roithova amendment?

The most painful element for the proponents of the law is that the doors to
escape this criticism open on various abysses. To discover which, you will
have to be patient: since they are deaf, let=E2=80=99s have them turn in ci=
rcles for
a while.