The Hadopi law(en) being voted now in France, constitutes an incredible attack on Freedom of expression and Privacy. It is fascinating to see how a law that gives the state an easy route to invade people's every digital thought is being pushed through, and will very likely be accepted by the French parliament on Monday May 4, 2009.
The maneuvers of the French parliament here take some work to understand. A few weeks ago Hadopi was rejected in the Assembly by 21 votes against, 15 for. For an Assembly containing well over 300 deputies, and for a law of such importance, it may seem odd that so few people were part of the discussion. The best understanding I have of this is that President Sarkozy, has made this a very personal issue, having promised to a lot of big media friends, with which he is very close, to put in place a system to break the problem of "piracy" on the internet. Anyone in the majority who may have been tepidly against the law, may not have wished making such a powerful enemy. Others may have thought the law was a done deal given the backing. And sadly I think most of the deputies don't really understand the issue at all, as reveled by this video asking deputies what p2p is.
The Anti-Piracy law
Having lost the first vote, Sarkozi ordered his troops together to make his majority in parliament felt by having them massively vote for the law. The problem is that the majority voting now have very little understanding of the technical issues in front of them. Their view of the issue is the one a large part of the French population have: this is simply an issue of being for or against the Pirates; being for or against the artists. "Piracy is theft" is the simplifying drumbeat which organises their thoughts.
Coming to the defence of artists is of course a very noble thing to do. I myself try to stay as clean as possible in that regard, favoring works that are clearly licensed openly. Most work I publish under very free licences, that make it close to impossible to pirate my work. This article for example is published under a Creativce Commons attribution licence. In any case I find it much easier to buy or rent DVDs than to search for content that may be broken on some other p2p network.
What the best way to defend artists is, and how to find ways of rewarding their work is a complex issue. For the past 50 years people have mostly accepted electronic work to be freely available via the radio or the television -- if interspersed with advertising. I don't want to look into this problem here. For some good ideas one should read and listen to Lawrence Lessig speak on the issue of copyright and the future of the network, or the French economist Jaques Attali write about 10 steps to solve this problem.
The Anti-Privacy/Liberty Law
However noble the issue of saving artists is, the real problem is how this law intends to go about doing what it set out to do. And if one looks at it this way, one soon gets a bad feeling of having entered a Orwellian 1984 like world! (See the public letter "Sci-Fi Against Hadopi") The law is not just anti-piracy, it is also anti-privacy, anti-freedom of expression, anti-freedom of all sorts. It is like a super DDT, a chemical that gets rid of all insects, but is so powerful that it also starts killing humans too.
The Hadopi law (pdf) will enable a newly established administrative higher authority to receive ip addresses from content owners, and ask telecommunication companies to reveal the owners of that ip address, to whom they will send 2 warning e-mails, telling them that something illegal is being downloaded or uploaded from their network, and asking them to secure this network. It seems that this warning will not even mention the work that is thought to have been illegally transmitted. After the third postal warning the internet connection will be cut off. At that point the citizen whose connection will be cut off, will be placed on a black list, making it impossible for him to seek any other telephone connection. As it will be extremly difficult for him to defend himself, he will then have to accept putting a yet undefined piece of software on his network that will snoop everything he is doing. One motion required this software to also sniff the email communications [ I am not absolutely clear this went through though.]
So in short, private companies will be able to anonymously denounce French citizens, leading their internet connection to be cut off, and then forcing them to install snooping software on their network to prove their innocence! If this is not an extreem invasion of privacy I do not know what is.
To help citizens who want to stay legal find their way around the internet, the Hadopi institution will distribute special labels for clean content. Good citizens will be safe if they don't stray too far from officially approved sites. If this is not an attack on freedom of information I don't know what is!
Where is the resistance?
So over the past few weeks as my concern grew I tried discussing this with a number of people. My initial thought was that an issue such as this would not get through in a country that demonstrates on nearly every issue that comes up. What stunned me was the silence, or the lack of interest in these issues by most people. It is instructive in my view to look at various types of responses I got.
The law cannot be implemented view
A lot of people are convinced that this law cannot be implemented. It is too crazy to be workable. Let us hope and pray that it is! The previous DADVSI law wich had set punishments of €300 000 and 3 years in prison, was so extreemly overwhelmingly powerful, that it indeed was not useable.
But that argument is very dangerous. The DADVSI may not yet have been used, but it may one day be. It is certainly what is spurring the current law, Hadopi, which comparatively seems innocuously kind. It only will ask you to install snooping software on your network. And since it is big brother the State asking this, and most people have no idea of what this implies, a lot of people may very well be frightened into accepting this. In any case it does not matter if it is not immediately applicable. It need only slowly with time work itself into people's lives. If enough people have this working, even if it is widely bypassed, then you can bet that in 10 years time, a movement will start where people who do have this installed will complain that some of their fellow citizens don't have it, and so push for harsher laws, perhaps going so far as to install this automatically on all networks.
We can bypass it
A lot of technically savvy people have convinced themselves they can bypass this easily.
So what if they do? The law need only frighten the majority into behaving a certain way. With time, and with the majority on their side, they can add other laws to make the undesirable behavior a lot more difficult. For example for those who think that anonymising software is going to be an easy way out, then they should look at the next law on the table: Llopsi which will give the State the power to block any IP address they need to. Now perhaps a good use case for Llopsi will be large anonymiser services.
Not fighting a law because one decides one will not follow it, is a very selfish and short term way of thinking. Sadly it seems to have grown in a large portion of the population that allowed itself to be tagged as Pirates. And for that selfishness we will all pay (yes, this is not just a French phenomenon, it seems to be a globally orchestrated movement - see for example blackout europe.)
It will be blocked by the constitution
It may be. But then it may not be. In any case it is extreemly worrying that a law should have to go so far as to require blocking by the constitution. Remember how Lawrence Lessig's attempt to get the Supreme court to change the provisions on copyright? It failed.
It will be blocked by the European Union
The EU is a Union of States, where the states have an overwhelming power. The EU does not have an army and cannot enforce much. France has the "cultural exception" it can use quite easily, and it may also be that similar problems are brewing in the rest of europe. Don't count on the EU. The parliament have done a great job there, but they don't have the final say, and they can be pressured. They have just watered down the telecom bill for example. The EU is not the USA.
The people will rise
This is unlikely given what I have seen. Many people don't yet really feel the power of the internet. They work with the internet via the expensive and limited cell phone networks, if at all. For them the Internet is cool, but not essential. Furthermore traditional media are still extremely powerful, and they can direct the message the way they wish. If they were not so powerful, laws such as this would not ever be able to go so far. I don't watch enough television to be able to tell if both sides of the debate here have been aired equally. My guess is not. [ Update: the major French television channel TF1 - the first french TV channel to be created, now privatised - was found to have sacked the head of their innovation center, for having sent privately a critical message on Hadopi to his Member of Parliament as reported by Libération. Thereby confirming the suspicion that other sides of this debate are not getting equal airing time]
But in the long term the people may very well rise. If the law were applied equally and without discrimination then businesses may very well be the first to rise up -- and leave. Later as the internet does become more and more part of every day life, the people themselves may rise. Most likely the younger generation will feel most strongly the difference between what is being asked and what is reasonable. They may feel these new chains most forcefully. Mass movements though are worrying, because when masses move, they can end up being very difficult to control, and can easily go the wrong direction.
All in all I think it would be much better for people in France to call their deputies before the law passes and urge them to change their mind, than to wait and fight this out on the streets.
There are a number of ways people can get their voice heard. One is the twitition petition. But I don't like the way it requires your password. Better I think to add the string JVoteContreHadopi to a blog post or tweet of yours. After a little time the vote should appear on this Google query where the votes can be counted. (We did this for when voting for Java 6 on OSX leopard.)