Illegal Downloading Just Got Illegal-er

It already failed to pass once. Then, it was then struck down by the French Constitutional Council. The final vote fell along strictly partisan lines, and even so, 40 or so of his own deputies voted against it. Yet in spite of it all, last week, French President Nicolas Sarkozy finally succeeded in passing an amended version of the much maligned and, many say, fundamentally flawed anti-illegal downloading bill, known as the loi Hadopi. Whether this is a tribute to the tenacity or to the obstinacy of the French leadership is unclear.

Industry representatives, eager to clamp down on what’s become quite simply a ubiquitous practice, will certainly hail the law. Though judging by its reception in the press and all the critics lining up in protest, one wonders if the cost was worth it. At the very least, the law will reinforce the impression among many French that Mr. Sarkozy conducts policy for the benefit of his bling-bling friends.

Yet the problems with the law go way beyond politics. “There must be ten different ways of explaining how obsolete, inefficient and dangerous it will be,” Jeremie Zimmermann, co-founder of the internet advocacy group La Quadrature du Net, told The Faster Times. “The most disturbing part is that  there is a good chance people punished by this law will be innocent.”  Indeed, listening to Mr. Zimmermann, you start to wonder if the drafters of the law even understand how the Internet actually works.

Hadopi takes its name from a new government agency the law creates, whose sole purpose is to police Internet users in the name of protecting intellectual property rights online. But the agency won’t be the one gathering the data. That job will be outsourced to industry associations in France, which will collect data on suspected copyright abusers by tracking the activity at their IP addresses online. This is a little like surveilling a house by reading the mail that goes in and out of the mailbox. Once these groups representing the copyright holders bring a claim before the agency, it will investigate the suspected “pirates”, and then hand out two warnings. If those go unheeded, a judge in a fast track court will be empowered to disconnect Internet service for 12 months and levy a fine of up to 30,000 euros.

There is, however, a huge flaw with this approach: you simply cannot use activity at an IP address as evidence of intent. Vint Cerf, often called “the father of the internet”, has estimated that up to a quarter of desktop PCs on the internet are so-called “zombies”—infected machines used by third parties for sending spam, phishing for credit card numbers or worse. In other words, one in four Internet users isn’t even aware of what’s being uploaded or downloaded onto their computers. Researchers from the University of Washington (go Huskies!) have also shown that trolling peer-to-peer networks for IP addresses—the networks that replaced Napster, like the popular Gnutella, are peer-to-peer networks—as the law proposes to do, is an extremely unreliable way of identifying illegal downloaders. And what’s even worse, Hadopi compounds this problem: it holds owners of unsecured wifi networks responsible whenever someone else steals their bandwidth for illegal downloading. That’s a bit like prosecuting the farmer for the meth cookers who have broken into his abandoned barn.

Meanwhile, anyone in France who wants to continue downloading free content from the web will be able to do so without an iota of apprehension. All they will have to do is download via a proxy server or virtual private network that’s outside of France. This may sound like a really technical thing that only the truly wired would know how to do, and it is, if your definition of “the truly wired” is anyone over the age of 12. In fact, people in authoritarian countries successfully circumvent web censorship by similar means all the time.

Which, by the way, brings up a rather uncomfortable comparison. In the modern world, stripping someone of their Internet access is akin to curtailing their freedom of speech. That, at least, was the view expressed by the French Constitutional Council, when it rejected the first draft of the law. So the French state, in depriving its citizens of their freedom of speech and information with only a nod to due process of law, has taken up with some pretty unsavory company. Furthermore, it has embraced a retrograde view of the Internet that subordinates freedom of speech to the defense of intellectual property. Yet in truth, this is not a reflection of a burgeoning authoritarianism, so much as it is good, old-fashioned Gallic dirigisme. Given a choice between protecting big French companies and protecting the Internet, Sarko’s government will choose Vivendi Universal every time. They’ve merely wrapped themselves up in the banner of “artists’ rights” to do so. As the supercilious French Culture Minister Frederic Mitterand waxed the day before the Hadopi vote, “Artists will remember that we had the political courage to finally break the laissez-faire attitude, and to protect their rights from those who want to turn the Internet into a ground for their libertarian utopia.”

But this is sophistic nonsense. The precarious state of intellectual property on the web is a not merely the concern of libertarian utopians, it is a dire economic and philosophical issue. Nothing less than the future of art and literature is at stake here. It is not utopian for an artist or writer to want to make money from their art without prosecuting their fans. With Hadopi, France has taken a huge step in the wrong direction.