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French Record labels and movie studios are counting on the courts to help wage their war against global online piracy. But in France, some courts are refusing to go along. Judicial activism is roiling the entertainment industry here, as judges release convicted fileswappers with suspended sentences associated with otherwise draconian penalties stipulated by copyright law
In April the French Data Protection Authority CNIL authorized the software lobbying organisation SELL to track and monitor file exchanges on P2P networks. Now SELL's sister organisation for copyrights holders, SACEM, is likely to obtain the same permission. It will use the company Advestigo, which has asked CNIL for an authorization to collect IP addresses and send anti-piracy messages to file-sharers.
Renaud Donnedieu de Vabres, Minister of Culture and Communications, thinks that the decision of the Supreme Court establishing responsibility for the owners of software that allows the illicit exchanges of files (peer to peer: "poste à poste") is likely to move the debate in France forward.In this perspective and in the wake of the parliamentary debate on the [draft] bill on copyright in the information society, which will be examined at re-entry, the Minister of Culture and Communication has asked his staff for a legal evaluation of the American decision.
Friday November 18th, 2005, French Department of Culture. SNEP and SCPP have told Free Software authors: "You will be required to change your licenses." SACEM add: "You shall stop publishing free software," and warn they are ready "to sue free software authors who will keep on publishing source code" should the "VU/SACEM/BSA/FA Contents Department"[1] bill proposal pass in the Parliament. It appears that publishing Free Software giving access to culture is about to become a counterfeiting criminal offence. Will SACEM sue France Télécom R&D research labs for having published Maay and Solipsis (P2P pieces of software used to exchange data)[2]? Up to this point, the rather technical debate surrounding the issues addressed by DADVSI bill (copyright and neighbouring rights in the information society) makes one ask: Just how much control do the Big Players in the field of culture want to seize? It now looks like years of quibbling have put an end to compromises.
The Association of Audionautes (ADA) rejects the report on P2P from the French Intellectual Property Council (CSPLA) that was released on 12/07/2005.The ADA is surprised by the content of this report that does not take into account the recent French courts decisions on P2P downloads and the legitimacy of Private Copying.
Shortly after being heavily lobbied to ban all free software, France’s National Assembly recently approved a proposal that would essentially make sharing movies and music legal. The legislation passed by a slim two votes - 30 in support and 28 against. Many believe the legislation passed because most of the lower house’s 577 total members were not in attendance. In order for this legislation to become effective, it still needs to pass the upper house, or French Senate. While the proposal would allow the private use of sharing copyrighted material, as the old saying goes there is no such thing as a free lunch. The amendments come at an additional cost of €5 a month for an individual’s subscription to the internet. It's the equivalent of a levy that has plagued recordable media sold in Canada. Some experts contend it's only fair to offload the cost of music onto the hardware that provides the media in the first place.
Speaking in Cannes John Kennedy called on Internet Service Providers (ISPs) who give users access to the Internet, to start policing it by denying access to persistent illegal file sharers.And he condemned the French government's recent move to enable users to download unlimited digital music and films for personal use.Of the one billion songs downloaded from the Internet in France last year alone, just 20 million were bought legally, EMI Europe chief executive officer Jean-Francois Cecillon told a MidemNet conference Saturday.The real problem is not the new Internet downloaders, who on the whole pay for their music, but the seasoned P2P users who are proving very difficult to wean away, Kennedy said.As for the situation in France, Kennedy said he was optimistic that France would not go through with its proposals, which would legalize Web piracy.Such a measure would kill France's own music industry and "I can't believe that at the end of the day, the French government will want this," he said.
Just before the French Parliament begins the new examination of the P2P French Bill on February 8th, proponents of the “Private Copying Exception” have achieved a new victory : on January 10th, Paris District Court ruled against the presence of DRM mechanisms on Warner Music’s “Testify” CD from Phil Collins. Warner Music will have to pay 59,50 euros in remedies for the plaintiff’s damages, and 5000 euros as a punitive fine.The decision is not available online yet, but following the words of the Court, Warner Music is now forbidden to “use Digital Rights Management systems on the Phil Collins” Testify CD as long as they block users from copying on any media of their choice”.This decision is not definitive but it was supported by the famous French Consumer Association “UFC-Que Choisir” who will not hesitate to defend it in front of the Court of Appeal, if necessary. And especially since its result is not suprising. It upholds the previous 2005 April 15th decision from the Versailles Court of Appeals about a CD from the French singer Alain Souchon, and the 2005 April 22nd decision from the Paris Court of Appeals about a DVD from the French producer Alain Sarde.This decision further upholds various decisions recently issued by French Courts absolving Internet Users of charges after having downloaded music from the Internet :- Rodez Tribunal Correctionnel, 2004 October 13th : absolved of charges- Chateauroux Tribunal de Grande Instance, 2004 December 15th : no damages- Montpellier Cour d’Appel, 2005 March 10th : absolved of charges- Meaux Tribunal Correctionnel, 2005 April 21st : downloading qualified as private copying, 70 cents / title for uploading- Le Havre Tribunal Grande Instance, 2005 September 20th : same thing but 20 cents / title for uploading- Créteil Tribunal de Grande Instance, 2005 November 2nd : absolved of charges for downloading as well as uploading using eMule- Paris Tribunal de Grande Instance, 2005 December 8th : same thing but using KazaaFinally the decision also upholds the two amendments voted on December 22nd to authorize Internet Content Downloading.But the French Parliament will address this issue again on February 8th. Minister of Culture Renaud Donnedieu De Vabres initially proposed a system of "graduated reprisal" : Internet Users would be monitored by Culture Industry Agents, and would be automatically required to pay fines of up to 15,000 euros if accused of downloading copyrighted content. Furthermore, there would be no opportunity to consult lawyers or challenge the accusations prior to being fined.
France is to consider a draft law this week that would legalize file-sharing of music and films by consumers in return for a flat licensing fee.The entertainment industry is preparing a massive lobby against the law, saying it would undo years of anti-piracy work and leave artists destitute.On Wednesday, the law goes before a parliamentary commission for cultural affairs and the commission for economic affairs.Originally conceived as a revamp of copyright law to tackle concerns about piracy, the law was amended after pressure by consumer groups to allow unlimited peer-to-peer downloading for a flat fee of a few euros a month.Several French court decisions on illegal downloading have absolved internet users in file-sharing cases or imposed very light sentences, setting in place a body of case law that paved the way for more liberalized consumer downloading.The French scheme would be an alternative to legal downloading services for music and movies that charge fees for each download.Music, film and television industries are opposing the law, but point out it is at a draft stage and can still be overturned."We are concerned and monitoring the situation closely, but it has a long way to go before it becomes law," Francine Cunningham of the International Federation of the Phonographic Industry (IFPI), said, according to Reuters."The 'compulsory licence' would replace the fast-growing legitimate online market in France by an 'average' payment which would by no means remunerate the creation of music and investments made by the recording industry," the IFPI said.Consumer groups in France have backed the law, saying it frees consumers from threat of legal action over downloading and provides a legitimate, affordable way of sharing files.French cinema and music trading associations, rock stars such as Johnny Hallyday and companies such as Vivendi, which owns Universal Music and has a stake in NBC Universal, have spoken out against the law.
French consumers aren't entitled to make personal copies of DVDs, even if they don't distribute them, France's highest court said today in a victory for film companies such as Vivendi Universal SA. The Cour de Cassation in Paris, quashing a decision by a lower court, ruled that a consumer can't make a backup copy of David Lynch's Mulholland Drive. The purchaser, a member of the UFC Que Choisir consumer association, had argued that Vivendi's Studio Canal film-production unit didn't have the right to use a device that made it impossible to burn duplicate digital video discs. ``This means that if one pays 20 euros for a DVD, one is just buying the right to use that one DVD,'' Ahmed Baladi, a Paris-based lawyer at Allen & Overy, said in an interview today. ``This ruling will have an influence on neighboring sets of laws, including those regulating the music industry.''
French MPs who have already voted once to legalise the online sharing of music and films are to consider the matter again next week. In December they backed a move to allow internet users to download as much material as they want in exchange for a small fee. If it becomes law France would be the first country to authorise the swapping of copyrighted music. The surprise vote caused outrage among record companies and film producers, who say illegal peer-to-peer (P2P) copying costs their industries millions of euros every year. It was an embarrassing defeat for the government, which had planned to introduce large fines and possible jail terms of up to three years for internet pirates.
The text of the original bill relating to legalizing P2P has been pulled. In its place is legislation that would both lower the fines relating to illegal file sharing while strengthening the country's commitment to enforcing intellectual property law. Jean-Luc Warsmann, speaking on behalf of Villepin's UMP party, announced the decision to pull the most controversial text of the amendment, but some interesting legislation remains. For example, the current bill in question would set fines for casual piracy at 38 euros per infraction, which would be a marked improvement over existing legal strategies involving courts and pressure settlements. The original bill would have made P2P file sharing legal in exchange for a tax-like fee on Internet usage. The fee would be used to reimburse artists much in the way that levies are supposed to be used in Canada for the same purposes (although technically the status of Canadian copyright is less than clear on P2P usage per se). A recent French court ruling suggests that such arrangements may not be needed at all, however, as a French judge ruled that a particular user's P2P activity was legal on account of its non-commercial, private nature. Be that as it may, the "one fee fits all approach" still has the entertainment industry in France scared.
Last April, I reported that in France, the right to privacy includes a right to copy DVDs for personal use. [Link]. That case, involving the movie Mulholland Drive, has been overturned, and now DVD makers can once again use hard-wired Digital Rights Management (DRM) as a form of copy-protection to protect the “legitimate interests of authors.”
ADA reported receiving 13,000 signatures from musicians supporting their campaign and public interest has been described as overwhelming, with even the highly influential Economic and Social Council (who advise government) arguing that P2P exchanges should be made legal.The government remained vehemently opposed to the concept of a global license throughout, despite being widely reported as having conceded that private copying should be legalized. After revising their original plans to introduce draconian measures against those caught infringing down to a modest statutory penalty of €38 per file for small scale offenders, the concept of global licensing has reportedly now been rejected altogether by the conservative government.Many could be forgiven for thinking that the modest scale of this statutory penalty represents a partial victory for filesharers, and doubtless this will be claimed by their supporters. However, from legal and human rights perspectives, this adoption of US style fixed penalty legislation is little short of catastrophic.Statutory penalties make it unnecessary for the plaintiff (in this case the recording industries) to prove that they have actually suffered a specific loss as a consequence of any breach of copyright. This lightens the burden on the recording industries substantially, resulting in the likelihood of far higher numbers of filesharers being taken to court. Whilst the concept of such legislation has to be approved at a parliamentary level, once that has been done, the fixed penalties themselves can be reviewed (in other words, dramatically increased) without further reference to politicians.
Having started as an amendment to proposed legislation last December, the proposal was to introduce a global licensing system for French filesharers as part of wide ranging reform of copyright law to comply with the EUCD. Debate in the lower house concluded last Friday, with a vote scheduled for Tuesday, 21st March. The entire issue has been fraught with uncertainty, typified by a comment made by Christian Vanneste, who is a French legal commentator and renowned Parliamentarian, over the issue of iTunes and DRM. Having been quoted by Reuters' sources as having said amendments "will force some proprietary systems to be opened up ... You have to be able to download content and play it on any device”, there now seems to be some confusion as to whether he was simply referring to what he wanted as opposed to revealing the government's official position. Whether that is true or not, the lack of information and the confusion arising highlights an almost contemptuous lack of transparency on the part of the French government.
Today the French National Assembly will vote on the iTunes amendment, where it is expected to pass onto the Senate. The amendment, part of a much larger copyright reform bill, would force all authorized distributors to open proprietary formats. Although designed for a wide range of companies, the most obvious impact will be on Apple Computers.As momentum is building for this amendment to become law, the repercussions from such a reform are unclear. The music industry’s leading trade organization in Europe, the IFPI, has expressed support for the bill, as it would weaken Apple’s music dominance. Yet Apple’s position on the issue is unclear. Slyck.com’s repeated requests for comment, as have all requests from various media outlets, have gone unanswered. Left only with speculation, if the French government does enact this amendment, Apple Computer’s could be placed in tight situation. They could opt to close iTunes France, yet that may allow the remaining competition to flourish. Alternatively, Apple could decide to open their format to the competition; however that would strike at the very heart of their near flawless marketing strategy. Rather than give up such a precious trade secrete, the more likely scenario would force iTune’s departure from France.Update: French lawmakers have approved the new copyright bill, which will force Apple to open its proprietary format. The bill also introduces new penalties for music piracy, but the real question is how Apple will react.
Apple, said that sales of iPods may increase if the law is enacted."IPod sales will likely increase as users freely load their iPods with `interoperable' music, which cannot be adequately protected," but it further warned, "Free movies for iPods should not be far behind in what will rapidly become a state-sponsored culture of piracy.''The French reform bill will do little to encourage an already encouraged buccaneer populace. Apple is furious of course at the prospect of loosing their iron-grip monopoly on the authorized music market. If the bill becomes law and is adopted throughout Europe, alternative stores will finally have a level playing field.As admitted in their press release, piracy helps fuel iPod sales, which in turn helps the iTunes music store. It appears Apple isn't so concerned about piracy as they are about watching thier own sales decrease while the competition thrives.
US commerce secretary Carlos Gutierrez backed angry protests by Apple Computer over a new French law that would throw open Apple's popular online music store to competitors. Speaking on the CNBC network, Gutierrez said he needed to make further study of the copyright law passed by the French parliament's lower house this week."But any time something like this happens, any time that we believe that intellectual property rights are being violated, we need to speak up and in this case, the company is taking the initiative," he said."I would compliment that company because we need for companies to also stand up for their intellectual property rights," Gutierrez said."If we all do that, have the government work with other governments, have companies defend and protect their own intellectual property, then we'll be able to make more progress on a worldwide basis."