FRANCE'S INTERNET PIRACY LAW: UMP CALLING

UNCLAS SECTION 01 OF 03 PARIS 000559 SENSITIVE SIPDIS STATE PASS USTR FOR RBAE E.O. 19523: N/A TAGS: ECON ETRD FR SUBJECT: FRANCE'S INTERNET PIRACY LAW: UMP CALLING TOTO ¶1. (SBU) Summary: In a theater-of-the absurd parliamentary maneuver, France's "three-strikes- you're-out" law to crack down on internet piracy was torpedoed April 9 by the man (or rather 10 Socialist MPs) behind the curtain. The government intends to bring the law back for a second reading in the National Assembly on April 29, and to a formal vote on May 12. GOF sources are confident the government will control the vote this time around, though admit there are some policy differences within the UMP majority (primarily over whether those who are ultimately cut off from internet service should pay for the balance of their internet subscriptions). End summary. ¶2. (SBU) France's closely-watched graduated response law that would deny users access to the Internet after three piracy violations was torpedoed by the National Assembly on April 9. Olivier Henrard, legal advisor to the Minister of Culture and point-person for the "Creation and Internet" bill, told us that the opposition Socialists had managed to spirit 10 of their MPs into a broom closet concealed by a heavy curtain in the entranceway to the Chamber. Under normal circumstances the majority would have put a stop to proceedings had it noticed a cluster of oppositions MPs hovering outside the Chamber. But with the Socialists out of view, the UMP allowed the session's presiding MP, a Socialist, to bring the measure to a vote. At which point the MPs rushed from their hiding place to cast their "no" votes. (Note: It is not uncommon for votes in the National Assembly to take place in a near-empty chamber. The final "Creation and Internet" law vote was voted down by 21 Q 15. End note.) ¶3. (SBU) Henrard indicated the government will present the same text for a second reading on April 29, following a parliamentary recess. Current plans call for a final vote on May 12. Although Henrard is confident in the bill's ultimate passage, he admitted there was some disagreement within the majority over a stipulation that requires users who have been disconnected from the internet for IP violations to continue paying their ISP contracts. An amendment has been proposed from the National Assembly floor that would alter that arrangement. ¶4. (SBU) The Socialist opposition, some UMP MPs, and consumers groups insist the April 9 defeat was indicative of a greater level of discontent over the bill than the government cares to admit. UFC-Que Choisir, a consumers group linked to the dust-up over the 2006 digital copyright law (in which the GOF ultimately lost control of proposed legislation in the National Assembly),said the MPs had "heard the displeasure of consumers." UMP MP Herve Mariton said the government "was afraid of its own majority" and had tried to pass the bill below the radar (a notion rejected by the Culture Ministry's Henrard, who says the press regularly turns to the same four or five UMP MPs who oppose the bill to generate controversy.) U.S. Industry Views -------------- ¶5. (SBU) U.S. industry continues to watch the bill closely. Motion Picture Association of America (MPAA) President Robert Pisano told the Charge on March 20 that the graduated response law is "very important" to the fight against online piracy, and to MPAA. The Recording Industry of America has expressed similar sentiments. ¶6. (SBU) The Business Software Alliance (BSA) has expressed concern over a proposed amendment to Article 15 of the 2006 French Digital Copyright Law that has been included in the "Creation and Internet" bill. That article, which industry has contested since its inception, requires firms to provide source code of software that includes technical protection measures to the French authorities. Originally introduced as an amendment from the National Assembly floor, the measure was designed to address spyware concerns (reportedly in the wake of the 2005 Sony rootkit scandal in which Sony had sold CDs in the United States with copyright protection measures that installed onto users' PCs and enabled remote PARIS 00000559 002 OF 003 monitoring). Article 15 has neither been enforced nor the subject of implementing regulations since the Copyright Law was passed. ¶7. (SBU) BSA says it had hoped the "Creation and Internet" law would fully repeal article 15. Instead, the draft amendment would have firms turn over source code only "at the request of French authorities," rather than automatically, as the law currently stipulates. GOF officials, including Henrard, advisors to Digital Economy Junior Minister Nathalie Kosciusko-Morizet, and the Secretary General of the Technical Measures Authority (an independent body established to implement aspects of the Copyright law, to be replaced by a new body subsequent to passage of the "Creation and Internet" law) tell us there is no appetite in the GOF for implementing Article 15. But outright repeal of a measure passed only two years ago by the National Assembly would have opened another political front in a legislative climate that was proving challenging. And, they say, leaving vague the conditions under which a request for source code could be initiated allows the GOF to let the provision languish. Challenges to Implementation -------------- ¶8. (SBU) While most observers expect the "Creation and the Internet" bill to be approved this time around, there are hurdles ahead. Opposition MPs intend to make implementation and enforcement as difficult as possible, starting with a likely challenge before the Constitutional Court (which rules on whether new laws comply with France's constitution). They have also taken their case to the European Parliament, where debate over the right to disconnect users from the internet has been injected into discussion of the EU telecoms package. The Culture Ministry's Henrard decried Socialists' efforts to politicize the telecoms package, and indicated the GOF would push back on any EU efforts to preclude the GOF from implementing its law. (Note: The telecoms package is being shepherded through the EP by Socialist group MEP Catherine Trautmann, French Culture Minister from 1997 Q 2000 in the Jospin government. End note.) Socialist MEP candidates for the June EP elections are also trying to make political hay by stressing the GOF's "contempt for representative democracy" in presenting a bill that is essentially identical to one so recently rejected by the National Assembly. ¶9. (SBU) Then there are the sheer logistical challenges of implementing the legislation. Users caught downloading illegal content will first receive an e-mail warning from the ISP. Following a second "strike," users will receive a (computer-generated) warning letter in the mail from the soon-to-be- established High Authority for the Distribution of Works and the Protection of Rights on the Internet ("HADOPI" in French). Culture Minister Albanel has told the National Assembly Cultural Affairs Committee that, under a worst-case scenario, the HADOPI would be sending out up to 10,000 letters a day. If the same user is caught a third time, his or her Internet connection will be suspended for up to one year. ¶10. (SBU) Henrard says the independent HADOPI authority, whose structure and legal standing will be loosely- patterned on France's financial markets regulatory authority AMF, will have a 90 million euro budget to contact, warn, suspend and deny Internet access. It will have the right to obtain and peruse a year's worth of personal records from ISPs, order ISPs to include new filtering systems in their infrastructure and fine them up to 5,000 euros if they provide access to "blacklisted" users. But ultimately the point of the legislation, Henrard concluded, is to sensitize law-abiding citizens to the importance of fighting internet piracy through personal responsibility (including through such steps as locking WiFi connections to keep pirates from piggybacking onto ISP accounts). ¶11. (SBU) Comment: The opposition handed President Sarkozy an embarrassing, if temporary, parliamentary defeat with this episode. Majority leader Jean- PARIS 00000559 003 OF 003 Francois Cope and Parliamentary Relations State Secretary Roger Karoutchi both reportedly received tongue-lashings from the President after the debacle, and press reports suggest Karoutchi even offered to tender his resignation. With the UMP's commanding majority in parliament, and pressure from the President (who personally initiated and supported the draft law),the GOF should get its bill through on the second reading. But although the bill's initial failure was mostly a result of party politics and clever parliamentary maneuvering, there are strong undercurrents of dissent on the policy. The legislation was based on a consultative process that included rights-holders, Internet companies and public authorities. But an alliance of consumers groups and open internet advocates has steadily opposed the measure. And their argument that the little guys' rights are being trampled by big entertainment resonates, even in a country as culturally-sensitive as France. PEKALA