Liberte, Egalite, Technologie: The French Resistance and the Anti-Piracy Campaign

The music and motion picture industries suffered a setback in their global anti-piracy carpet-bombing campaign on June 10, when the French Conseil Constitutionnel struck down the internet-banning portions of the HADOPI law. The court held that "free access to public communication services online" was a fundamental human right and could not be stripped from users (read: merely accused illegal downloaders/ pirates … arrr) without case-by-case judicial approval.  Industry brass had hoped that the French legislation would be a successful prototype, a terrifying copyright super-weapon free from the burdensome moving parts of due process or judicial oversight. But it was not to be. French Socialists prevented the deployment of the policy, and bought French Internet users a brief reprieve.

The decision is all the more surprising considering the recent successes of the two entertainment juggernauts. In April, a Swedish court sentenced Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström (the pirates of PirateBay) to a year in jail for facilitating illegal file sharing. If we are being fair, the MPAA should get most of the credit for that achievement, having helped spur the original raid on Piratebay in May 2006.  But the Music industry is no junior partner in the copyright entente.  In 2005, the combined efforts of the RIAA and MPAA midwifed the monstrous Grokster decision, while simultaneously strangling Betamax in the crib.

So should we view the French decision as a turn in the tide of the copyright campaign, or a momentary speed-bump in the entertainment industry’s inexorable march to the sea? Hard to say; initial reaction to the French decision is mixed (with all-powerful local musicians on both sides of the fence). In a move that does not bode well for consumers, a few days after the Conseil’s ruling, a French body ordered/convinced Numerama, a news site focused on P2P issues, to publish abstracts containing the names, birthdates, and sentences of 27 convicted file sharers.  It’s good to see that the French have not lost their flair for public shaming.

On the other hand,  the Pirate Bay trial has been a boon for the Pirate Party. Membership in the party increased by 300% in the weeks following the conviction. And there will be at least one Pirate in the European Parliament, thanks to a 7.13% share of the Swedish vote. (Here is his photo, -- sorry, no eye-patch or parrot)

While it remains unclear what the lasting consequences will be, let’s celebrate the recent victory. Next time you are out, please raise your glass and toast the two groups most beloved in America: the French and the Socialists. Which reminds me, are you gonna finish those freedom fries?

(Andrew Moshirnia is a rising second-year law student at Harvard Law School and a CMLP legal intern. The only French phrases he knows are "Where is the Monkey?/On the branch./Yes, isn't that so.")

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