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Copyright Infringement and Privacy: U.S. and French Approaches

The U.S. and France are currently taking different approaches to curbing online copyright infringement – the latest U.S. attempt involves an agreement among various private industry companies, while the French government is overseeing enforcement.

Recently a coalition of U.S. entertainment companies and ISPs announced a new effort to combat copyright infringement.  The agreement creates a uniform system for “Copyright Alerts”, which will be comprised of a series of six escalating warnings sent to Internet subscribers when their accounts are used to illegally download copyrighted material.   If the illegal downloading continues after receiving an alert, the ISPs will implement “mitigation measures” including reducing Internet speed temporarily, suspending access, or redirecting users to an educational webpage with information on what constitutes copyright infringement.  Additionally the agreement creates the Center for Copyright Information with the goal of educating users about copyright – by highlighting its importance on the economy and jobs and by directing people to legitimate ways of accessing content online.

EDUCAUSE agrees with Center for Democracy and Technology’s position that the new system has the “potential to be an important educational vehicle that will help reduce peer-to-peer online copyright infringement.  Whether it will meet that promise or instead will undermine the rights of Internet users will depend on how it is implemented.”

France presents a case where the government is involved with enforcement.  It has enacted an Internet anti-piracy law commonly known as the "HADOPI" or "three strikes" law, because after a certain number of warnings an online infringer's Internet access would be cut off.   Originally the French Constitutional Court found a portion of the law unconstitutional.  Specifically, the court held that because terminating an individual's Internet access affects that individual's right to free expression, which the French declare to be a fundamental right, and that a decision to terminate access must be made by a court after a careful balancing of interests.  Because the HADOPI law gave Internet access termination power to an agency, the court held that grant of authority unconstitutional.  The decision also contains language on the appropriate balance between copyright, privacy and freedom of expression. 

A revised bill is now intended to remedy the enforcement gap left by the court's decision.  This bill, known as HADOPI 2, empowers French courts, instead of the administrative agency, with the authority to cut off the Internet access of copyright infringers or of individuals who are engaged in illegal downloading.

Now French broadband subscribers need to ensure that their broadband access is not used for infringing file sharing.  If the subscriber ignores this responsibility and the broadband access is used for illegal downloading, the subscriber’s Internet access may be cut off for a limited time.  To ensure compliance the subscriber must install certain approved protection technologies.

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