HADOPI leads to increased illegal downloading?
Well, no – not really.
The BBC is reporting today a slightly old story that, following the introduction of the French ‘three strikes’ rule on illegal downloads, known as HADOPI, a small-scale survey has found that the incidence of illegal downloading rose by 3% in the three months to December 2009. (The story was originally run in Les Echoes on 9 March.) The ‘three strikes’ approach resembles the provisions on copyright protection in the Digital Economy Bill now going through the UK Parliament in that firstly an e-mail is sent; for repeated offences there is then a formal letter; and finally, for continued infringements, a court may rule that the connection be suspended for a period of up to one year. The UK provisions are based similarly on notifications, threats and then action (and the latter within a range of possibilities) but have evidently proved to be controversial despite the efforts of the Creative Coalition Campaign to point to the problems caused to jobs in the creative industries by copyright infringements becoming an apparently accepted part of daily life.
However, despite being passed – equally controversially – in October with the intention of starting enforcement procedures early in 2010, the French law is not yet in force, and the first warnings are now due to be issued only from next month. It is perfectly possible that the rise in illegal downloads is associated with either or both of an attempt to enjoy a postponed reprieve from the new law and greater publicity surrounding the issue: the new law came into being in the middle of the period covered by this research. Thus, it would be something of a surprise had incidences of illegal downloading not risen at this time.
As in the UK, the French law is expected to lead to a reduction in internet-based copyright infringements. In the UK, the government expects the new laws to lead to a 70-80% reduction in instances of unlawful file sharing (that’s the figure in Digital Britain, p. 110). Figures that ‘prove’ a drop of such a dimension in this activity may well lead to the DEB copyright provisions being seen to have worked – on the assumption that the law ends up being passed in some form faithful to the aims of Digital Britain – regardless of how much they have actually been used and in spite of the existing and continuing brouhaha over their nature, including a flashmob event being organised by the Open Rights Group this coming Thursday.
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Yes the DB provisions roll on but there doesn’t seem to be any real evidence that the three strikes approach will have any beneficial effect. Let’s face it, the only people who were in favour of this were some of the copyright holders and many of them, including original artistes, had strong misgivings. If the government were serious about copyright infringement they would have established legislation that was enforced by a judicial authority, not the ISPs. This is a misguided attempt to dam the technological flood which simply won’t work.
Adrian Askew
30/03/2010 at 9:47 am
Hmm. I think the real aim of these DEB provisions is not actually to catch people (though some will no doubt be caught and publicly flogged pour encourager les autres) – the real aim is to change people’s online behaviour. There is a view that is in danger of becoming ‘accepted’ that it’s OK to infringe copyright just because the net makes it all very easy. That’s dangerous. Copyright owners from musicians to photographers need protection and, while aspects of the existing law need to be reformed (e.g. length of copyright and private use; while Bill Thompson makes some interesting and valid points here about what should be copyright-able: http://news.bbc.co.uk/1/hi/technology/8544935.stm), there’s something explicitly wrong with people being able to share copyrighted files with someone else on the other wide of the world who they have never met and don’t even know.
My suspicion (I can have no evidence, as yet!) is that the laws will work – or at least be demonstrated to have worked – in terms of reducing illegal downloading and inducing that behavioural/attitudinal change which is key to defending the principles of copyright. Once that’s done, perhaps the law itself can be sensibly amended.
As regards the ISPs, clearly they can’t be held at fault for how people use their delivery services, same as the Post Office can’t be charged as a result of delivering illegal mail (to extend Tim Berners-Lee’s excellent DPI analogy). And enforcing copyright must continue to be the responsibility of rights holders. But ISPs do have a role because they are probably uniquely placed to identify activity which may be unlawful. Others need to decide whether that is illegal or is not – it’s not the job of ISPs – but there is a role and I’d like to see them publicly recognise that. I’d also like to see them work with associations representing copyright holders to draw up some voluntary codes of practice to make a start on how DEB will eventually be implemented in practice, though it is clearly a little premature for that to be done just yet.
Calvin Allen
30/03/2010 at 10:31 am