Topic: Hadopi ruling

A recent Slashdot post announced that France's Hadopi law was ruled unconstitutional. I remember the "dark days" of the Tuxfamily home page a few months ago, so I wanted to ask what your thoughts were on this development.


Re: Hadopi ruling

AFAIK, this was expected.
Anyway this law was clearly dictated by private interests, and disrespectful of the citizens, considered as guilty by default (detrimental to the presumption of innocence :/). Another side effect would have been the spyware disrespectful of privacy and net neutrality (and that, I imagine, would not even have been libre or respect interoperability or even multiplateform...). Laws already exist in France that permit to obtain the data "on demand" to a french hosting or internet service provider (that have to keep logs for an astonishing long time :/), respecting CNIL's[1] directives and recommendations that protect the citizens from private investigation  and require a judicial authority in the loop to ensure laws are respected (it comes from LCEN[2] which has one good aspect  : defining what an open standard with not even a  RAND[3] clause).

This kind of law is very sad, as they are not even usable and have prohibitive costs. The adaptation of DMCA[4] (american law) in Europe as EUCD[5] led to DADVSI[6] in France, which included a provision to give an analysis of its "achievements" (the report has not yet been published, it would have permitted to identify where costs went... seems to be IYA :/ around 6 Meuros IIRC).

IMHO, majors just have to adapt their business model or play by the market law and naturally vanish, now that distribution could be  in the hands of artists "easily" with Internet everywhere and duplication costs dropping dramatically.

Thanksfully, this "episode" may have created a practical awareness in France (through watching live Assemblée Nationale's video stream) that some laws are detrimental to citizens and that citizens can act to make it change by voting (this may be an illusion). At least, now we have at least two groups (well one and a spin-off) that are recognized as acting for citizen respect by the institutions : see and that promote free/libre software to politics for one and analyze Internet threats for the other (a kind of french-EFF[7]).

BTW, the name of this law "HADOPI" was in fact "Creation & Internet" but did not speak of creation and neither of Internet as its purpose is to cut it :/ Anyway, HADOPI is misnamed : should be HADŒDPI the D being for Droits translated as "Rights", which have obviously been forgotten /o\.

Sadly, this may not be the end of it, the trend is there among control-freaks people. Let's hope that Internet is really used for our global awareness that we are already used to in the libre community and which provides great opportunities, potentially for everyone : there is really creation, available to everyone (and libre licenses permit to recognize it, promote it and enable collaborative work taking into account everyone initiatives and opening new possibilities).

Do not hesitate to ask more precise questions if some of my points are not clear ;-)

[2] … C3%A9rique (french)
[3] … _Licensing
[4] … yright_Act

Re: Hadopi ruling

Thanks for the thoughtful and well-referenced response. I have a couple questions that I wouldn't mind a bit of clarification on. Tthe Slashdot posting says that according to the ruling, "When illegal filesharing is detected, users have to prove their innocence." This raises two questions:

1) What mechanisms are in place in France to monitor user behavior? You mention that "Laws already exist in France that permit to obtain the data 'on demand'" that "require a judicial authority in the loop to ensure laws are respected." Could you elaborate a little on what ISPs are allowed to do, are required to do, and may be asked to do in France regarding tracking user behavior?

2) I have read conflicting things regarding France's stance on "presumed guilty until proven innocent". Some sources suggest that accused persons are "presumed guilty until proven innocent" in France; others say that accused are "innocent until proven guilty." Does it depend on the accusation?

BTW, I'm not a lawyer. :-)

Re: Hadopi ruling

a) existing mechanisms come from the LCEN : existing log lines for specific IP  (apache logs, DHCP logs to track IP attribution...) can be asked on demand to an ISP or a hosting, specifying the IP concerned and a period of time. There's no tracking of the user per se, only what already exist in logs and when asked about an IP at a specific time, the ISP would have to tell which user is concerned (name, address, IP at the time identified). An hosting provider has to agree to stop publishing content when provided with proofs that this content is illegal, from an approved authority. There's not much more that can be required by an ISP or an hosting provider AFAIK, even if it's already a bit too much IMHO as it would permit to correlate with user activity in some cases, be it private or public behaviour (I'm more concerned with private activities being disclosed). Currently, no filtering is yet compulsory and no user tracking is specifically compulsory, only technical logs which can be obtained (not the whole log, only some specific lines at a time).

b) new mechanisms in HADOPI rely on a "spyware" that would "prove" that the user "secured" his/her connection. The implementation has not been clearly disclosed but could be on user side or even ISP depending on how you read the law... monitoring user behaviour is permitted by HADOPI (hence permitting detection by private interests and denunciation to HADOPI, for example the majors would be on p2p network and would provide to HADOPI an IP and a time, then HADOPI could request from the ISP which user is concerned then take action, currently only sending a mail, not cutting the Internet access as this last sanction has been declared illegal by constitutional council and removed from the published law).

2) Currently, it remains "presumed innocent until declared guilty" (by a juridiction) by default. That is,  till HADOPI which tried to change to "presumed guilty unless the user can prove with the logs of the approved spyware that he is not concerned" (but thanksfully so far, the part of the sanction has been cancelled as long as it is not asked by a judicial authority).

IANAL either