Digital Media

France's controversial attempt to crack down on Internet piracy was dealt a setback Wednesday when that country's highest legal authority struck down a provision that would have denied Internet access to those who repeatedly download copyrighted material illegally.

The French Constitutional Council rejected a key provision that would have given a newly created government agency the authority to cut off Internet access to those deemed to be copyright scofflaws after two warnings. The council said "free access to public communication services on line" was a human right that only a judge should have the power to disconnect.

The "three strikes" measure, which was approved in May by the French National Assembly with the support of French President Nicolas Sarkozy, would have punished digital pirates by suspending Internet service if they were caught illegally sharing copyrighted material. The legislation would have created a new government agency known as HADOPI (the Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet), which would have been tasked with sending notices to illegal file sharers.

Suspected offenders would have received two warnings about their illegal activities and on the third suspected offense, their Internet access would have been disconnected for anywhere from two months to a year. Users would also have been put on a blacklist preventing them from subscribing to another ISP.

Consumer and free speech advocates opposed the legislation, arguing that it would deny accused Internet pirates the right to challenge the government's charges in court. Opponents of the legislation also feared that it would pave the way for governments to violate its citizens' personal privacy rights.

The legislation, considered one of the most aggressive digital antipiracy regulations, proved to be quite controversial in France and throughout the world. As a pre-emptive measure, the European Parliament passed a measure prohibiting EU governments from terminating a user's Internet access without a court order.

The entertainment industry has for years lobbied for more active policing of the Internet, but France is one of the only countries to put together such stringent legislation. Other countries, such as the United Kingdom and the United States, instead are encouraging partnerships between ISPs and the entertainment industry to fight piracy.

At least one major ISP in the U.S., AT&T, has already agreed to work with the music industry by sending notices to consumers suspected of illegally distributing copyrighted content. And in the U.K., ISPs have agreed to help the entertainment industry fight piracy in lieu of new legislation.

U2's manager continues to push ISPs and technologists to take responsibility for protecting digital content.

(Credit: U2.com)

Paul McGuinness, manager of the iconic band U2, sees stronger copyright laws in France, the Pirate Bay on trial, U.S.-based Internet service providers doing more to protect music, and still he isn't satisfied.

In January 2008, McGuinness delivered a speech that would become a call to arms on both sides of the free-content debate. During his address to attendees of the Midem music conference, the largest recording industry trade show, McGuinness lashed out at the "hippy values" of technologists, accused ISPs of profiting "on the back" of music creators, called the Digital Millennium Copyright Act a "thieves charter" and criticized the big record companies for a "lack of foresight."

Last year, McGuinness, stuck one of the world's most popular and beloved rock bands almost dead into the center of the debate over piracy, copyright, and the role of Internet service providers in protecting music and movies from illegal file sharing. The fallout and criticism, much of which came from technologists and proponents of free content, hasn't shaken McGuinness from his views. In an interview with CNET News, McGuinness once again was critical of ISPs, calling some of their recent piracy-prevention efforts insincere and "illusory."

A year after McGuinness' speech, France this month adopted a "three strikes law," which calls for ISPs to suspend a subscriber's service if they are accused three times of pirating copyright material. Here in the United States, the Recording Industry Association of America promised in December that a group of ISPs had agreed to help the music industry protect content. Some ISPs already had adopted strict enforcement procedures and others have started testing "graduated responses." Still, six months later, no major broadband provider has publicly acknowledged working with the RIAA.

Paul McGuinness

(Credit: U2.com)

Question: What kind of impact did your Midem speech have?
McGuinness: Well, I suppose I had become over the years alarmed by the decline in the traditional music industry and I suppose to some extent that is typical of me or a characteristic of mine that I will freely confess is very much part of my own business thinking that the giant music corporations were there to be infiltrated and worked with rather than against.

Our own record deal with Island Records, which was eventually acquired by Polygram, and then acquired by Universal, gave us the opportunity to break U2 worldwide. Island in the early days had 19 different licensees around the world and we were still able to take the Joshua Tree album in 1987 to No. 1 in many countries, as many as 30. So the record company was not the enemy. It was there to be worked with. These extraordinary marketing and distribution machines were there to be utilized--if they would let you get your hands on their controls. That I suppose is what you try to ensure when you make your deal and improve it over the years. That is certainly what we did with U2. So, we never felt victimized by the industry. I know there have been many casualties along the way and there have been people who made bad deals.

But we never really saw ourselves as victims. We improved our commercial terms with our publishers and record company over the years and we've ended up in a situation where there is no sense of unfairness. In fact, there is a strong sense of partnership, which I know is unusual. U2 owns the masters of every song they ever recorded and copyright of every song they ever wrote. I know U2 is an unusual situation, but it's not impossible to get yourself into that sort of a situation. So, the industry has my support if you like--not in all its manifestations. I think it has made several massive strategic mistakes over the years, certainly with regard to the Internet, but I don't hate them.

Give us an update of where in your view the ISPs have changed?
McGuinness: Some of the progress has been illusory. The ISPs as a group make the noises that they are required to make when it comes to what is politically necessary or when there is a scare, say for instance, something about security or pornography or pedophilia on the Internet. That is when you will see a rapid reaction from the ISPs to defend themselves against any kind of legislation or intervention or monitoring. I'm not sure it's a sincere reaction very often because I think the ISPs, if you take them as a group, have for many years been much more interested in selling broadband subscriptions around the world than they have in doing what is right.

What I think is right for them and indeed the content makers, and that would include newspapers, book authors, movie makers, music makers, sports teams, the people who make the free content that ISPs are pumping through their pipes, deserve to be recompensed. Realistically the only way they are going to be recompensed is in partnership with ISPs, who after all, are collecting revenues from their subscribers.

And I think the tipping point is occurring round about now. Perhaps broadband subscription sales are saturated in many territories and the ISPs are belatedly but realistically now turning to building revenue collection businesses with the content owners. I just hope it's not too late.

Sometimes when we were discussing these matters, we would talk of who in the world could make the greatest change to this environment and the way people think about this. We frequently came back to Rupert Murdoch. He's is, of course, in the sports business. He is in the movie business. He is in the print content business. He's a content maker and distributor of enormous significance. I thought that it was very interesting that he recently predicted that print content would have to be paid for in the future and the advertising-supported model could now be described as a failure. That was a big tipping point as well. I think that speech of his or declaration was of enormous significance.

I suppose I hope it was a warning, a red light for the ISPs because I do not think they've been sincere in their attempts to work with governments or content owners to date. I think they could have done an awful lot more. All they have to do currently is make the right noises and things go on as before. But will it be too late? I know there are legislative events taking place in France and signs of them in other countries.

The Pirate Bay case is of enormous significance, because there you had some very murky individuals hiding behind these sort of hippy types who front Pirate Bay. But the businessmen behind them have a very sort of shady commercial and political background. So, I think I'd love to see it made coherent, but of course the Internet is International.

It's possible to locate a Pirate Bay-type operation in any part of the world. I think if copyright is to continue and to provide one of the basic building blocks of civilization, and I don't think that's putting it too strongly, there will have to be some sort of willing International support for creative people. And I use a very wide description of what creativity is. I include a football team, which used to fund part of their activities by selling their rights in Southeast Asia. The European football leagues are now available on the Internet when they used to sell those rights on TV.

People would tell me stuff over the last couple of years about the level of cynicism that perhaps exists with the ISPs industry. I'm sure you know what (Deep Packet Inspection) is. When it sometimes is said that it's impossible to get under the hood of the Internet, that is not true. It's taking place on a massive scale anyway for other purposes and for it to take place in order to reward creative people I think would be perfectly possible. But will it happen?

Are we doomed to a future of bad demos and reality TV shows? That's the way the graph is descending.

Do you think ISPs are the last hope of copyright protection?
McGuinness: I think so, yes. Well, the ISPs and indeed, their airborne, their satellite equivalents. I think they bear a huge responsibility to put things right. They ought to want content and they ought to be taking responsibility for making sure that it occurs and it is remunerated.

Do you appreciate what Radiohead and Trent Reznor are doing, trying to find a new paradigm?
I admire what Radiohead have done tremendously in seeking a new model. They would take the view, and I would share it, that perhaps price has been a big problem for the music business. The music business has tried to hold onto a price that was unrealistic for a long time now. I think wider distribution of lower priced things is probably the future.

The feeling in the free-music community is that musicians have profited for a long time. What do you say to the person who says U2 has made plenty of money so why are you complaining?
McGuinness: That's true of U2. It's always very difficult for me to make the case for what's right and wrong because people just say: 'Well, U2 don't need any more money.' That's true, but I am talking about the right and wrong of it here because even though we have the biggest touring attraction in the world, that's not true for everyone.

One of the reasons we have a worldwide audience is that we were able, we usually have, the biggest touring attraction, but that's not true for everyone. It's important to remember the traditional worldwide star-making functions of the big record companies. There's nothing on the horizon to replace that.

That was what I was always interested in personally as a businessman and manager. We as a band, U2, were excited about the idea of being big all over the world. We freely admit that. I don't know how people will do that in the future. I think the universality of pop music that we've become used to in the last few decades that's in danger. There is, of course, local repertoires, music in every part of the world. I'm not a mad imperialist.

I'm not trying to get everyone to listen to the same kind of music, but the Beatles caught the imagination of nearly everyone in the world. So did Elvis. There have been a few other examples, like U2. I'd hate to see that stop happening.

What do you see as the role of technology? What would you say to technologists who are interested in digital music?
I would really like them to willingly go to the movie studios and the music companies and say this is how we can collect money from the people who are listening to your stuff and watching your movies. We acknowledge that it's the fair thing to do and we have some responsibility for doing it. Let's do it together and let's make some money. I've heard the estimates that half of traffic across the Internet is technically illegal non-paid-for content. That can't go on. It's such a waste. Future generations of artists will face a vacuum where payment used to be. Artists are entitled to get paid, whatever kind of art they do, the same way technologists are entitled to get paid.

But if the technology you develop prevents artists from being remunerated then there's something wrong with it. I'd like to get a moral tone into the discussion. I think there is a big moral question for civilization. It's not good enough to say that the Internet is free to all and there should be no restrictions on its use. I had the experience last year of making a speech to a group of (Members of European Parliament) in Brussels and they were very hostile to the idea of any kind of monitoring or regulation of the Internet, which they regarded as the precursor to a form of taxation. And of course, as politicians, they were against any kind of increased taxation. But it's not taxation. It's paying for something that people are consuming.

One official in Brussels, a senior Brussels civil servant, came up to me after I made the speech. I was there with a small group of lobbyists and he said to me 'In Brussels there are probably five or six lobbyists representing the content worldwide. There are thousands representing the ISPs, telcos and the technology industries.' He said it's really overwhelming the forces you have against you.

I started to glimpse the politics of it at that stage. I hope that our politicians, our journalists our media gain a sense of how much we stand to lose if free prevails. Ultimately free is the enemy of good.

The French National Assembly ignored a vote last week by the European Parliament and approved its "Création et Internet" three-strikes bill on Tuesday.

The measure supported by French President Nicolas Sarkozy punishes digital pirates by suspending Internet service if they are caught illegally sharing copyrighted material. The vote comes a little more than a month after the same government body rejected the proposal.

It seems the vote by the French Assembly is in direct opposition to the European Parliament, which last week passed a measure prohibiting EU governments from terminating a user's Internet access without a court order. The European Parliament also adopted an amendment that said, "Internet access is a fundamental right such as the freedom of expression and the freedom to access information."

The bill passed in France's National Assembly, the lower house of the French Parliament, by a narrow margin of 296 to 233. The legislation essentially creates a new government agency known as HADOPI (the Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur Internet), which will be tasked with sending notices to illegal file sharers.

The way it would work is that suspected offenders would receive two warnings about their illegal activities and on the third suspected offense, their Internet access would be cut off for anywhere from two months to a year. Users will also be put on a "three-strikes" blacklist so that they can't sign up for service from another ISP.

The legislation has proven to be quite controversial in France and throughout the world. It is considered one of the most aggressive digital antipiracy regulations out there, which has helped it win the support of the music and movie industries.

But consumer and free speech advocates have opposed the passage of such legislation, arguing that it denies accused Internet pirates the right to challenge the government's charges in court. Opponents of the legislation also fear that it will pave the way for governments to violate its citizens' personal privacy rights.

The bill had been expected to pass the General Assembly in France in early April, but Socialists, who opposed the measure, rallied at the last moment, and surprisingly defeated the measure.

It was reintroduced to the assembly in late April and was debated and discussed until the vote Tuesday.

Even though the entertainment industry for years has lobbied for more active policing of the Internet, France is one of the only countries to put together such stringent legislation. Other countries, such as the United Kingdom and the United States, have not introduced strict legislation yet, but instead are encouraging partnerships between ISPs and the entertainment industry to fight piracy.

At least one major ISP in the U.S., AT&T, has already agreed to work with the music industry by sending notices to consumers suspected of illegally distributing copyrighted content. And in the U.K., ISPs have agreed to help the entertainment industry fight piracy in lieu of new legislation.

But other countries, such as Sweden are also taking a heavy handed approach to fighting digital piracy. France's strict piracy legislation comes less than a month after a Swedish court found the founders of the peer-to-peer site The Pirate Bay guilty of infringing copyright. The four defendants were each sentenced to a year in jail and ordered to pay 30 million Swedish kronor ($3.6 million) in damages to copyright holders. The Pirate Bay has already been mentioned as one of the sites that could be easily taken out under the new French law.

Mitch Bainwol, CEO of the RIAA.

(Credit: Declan McCullagh)

France has passed a law that requires Internet service providers to cut off Web access of customers accused of illegally downloading copyright material multiple times.

Last Thursday, the French National Assembly passed the "Creation and Internet" law, which implements a graduated response program similar to one the recording industry is asking ISPs in the United States to adopt.

According to a story in BusinessWeek, the accused are first e-mailed a warning that they have been flagged as a copyright violator. If the person is accused a second time, the pressure is increased. Another warning is sent but this time in the form of a letter mailed to the person's house. A third accusation will trigger the "three-strikes" part of the plan, and the person's Internet access can then be suspended for up to a year.

Two weeks ago, CNET reported that AT&T has begun assisting the Recording Industry Association of America (RIAA) by sending out warning letters for people accused of copyright violations. The company also acknowledged experimenting with sending warnings by way of certified letters to customers' homes. The ISP, however, said it would never shut off anyone's service without a court order.

Mitch Bainwol, the RIAA's chairman and CEO, has never called for government regulation in this country, but said that France's decision to implement a three-strikes law is a sign the relationship between ISPs and copyright owners across the globe is only getting stronger.

"Each country will forge its own solutions to this challenge," Bainwol said in an e-mail to CNET, "but the general pattern is clear. ISPs and the content community are working together in a constructive way to find common solutions that work for all sides."

The move by France's lawmakers comes as creators of content ranging from music to movies to book publishers appear to be taking the offensive against illegal file sharing or Web services they accuse of using their copyright work without permission.

High-ranking newspaper executives this week were critical of Google and Web sites that aggregate news for profiting from news stories without compensating the publications that produced them.

Across the Atlantic, the European Union passed the Intellectual Property Rights Enforcement Directive, a law that enables copyright holders to obtain a court order that requires ISPs to hand over IP addresses of people accused of infringing on intellectual property.

Police in Sweden last week began making arrests of those accused of breaking the new law.