Share This: The Internet is a Right

“They order, said I, this matter better in France.” So wrote Laurence Sterne in his 1768 book A Sentimental Journey Through France and Italy. Alas, things have changed much since then, at least as far as the Internet is concerned. In the light of recent events, now he would we have to say: they order this matter worse in France. Even more unfortunately, France's bad habits are spreading, and could have serious consequences for free software.

These started going downhill with the “three strikes and you're out” idea:

The French President today trumpeted a new plan by some of the country's ISPs and its record and film industries to shut off illegal file-sharers' internet access.

In a landmark speech Nicolas Sarkozy said: "The rights of authors, the preservation of creativity, the recognition of the rights of each artist, of each performer... was an important commitment of my presidential campaign.

"Today an accord is signed and I see a decisive moment for the civilised internet. Everywhere, in the US, UK and others, industry and government have tried... to find a permanent resolution to the problem of piracy. We are the first, in France to try to build a national grand alliance around clear and viable proposals."

The plan has been drawn up by French retail exec Denis Olivennes. It will see signatory ISPs - including France Telecom, which owns Orange in the UK - hand over information on heavy users of file-sharing networks to a new enforcement body which will formally warn them to stop. If they persist, their connection will be cut.

But not content with penalising French Internet users, and chilling creativity in that country, Sarkozy seems determined to bend Europe to his will (the infection has already spread to the UK).

First, attempts were made to sneak an obligation to impose the “three strikes and your out” approach (rebranded as “graduated response”) into a complex and irrelevant EU telecoms package. The European Parliament, to its credit, pushed back, and added several clauses to preserve fundamental freedoms, like the right to judicial review of any attempts to cut Internet access.

Because France currently holds the Presidency of the Council of the European Union, it has considerable power to ram through its preferred legislative agenda. Sarkozy appears to be doing this through one of the (many) organisational bodies of the European Union, the Council of Europe, which is now in the process of ripping the heart out of the European Parliament's amendments. Here's some analysis of what it's up to, by Lilian Edwards, Professor of Internet Law at Sheffield University:

This is a crucial set of obligations, about to be imposed on all of Europe’s ISPs and telcos, which should be debated in the open, not passed under cover of stealth in the context of a vast and incomprehensible package of telecoms regulation. It seems, on careful legal examination by independent experts, more than possible that such a deliberate stealth exercise is indeed going on. When passed, these obligations will provide Europe level authority for France’s current “3 strikes” legislation, even though this has already been denounced as against fundamental rights by the European Parliament, when it was made clear to them what they were voting for or against.

So what? You may be asking – perhaps it serves Europe right for constantly going its own way. Well, it's not so simple.

At the end of last year, the Society of French Record Producers wanted to take the creators of three P2P sharing programs - Vuze (formerly Azureus), Morpheus and Sourceforge/Shareza - to court because of the alleged actions of some of their users in swapping copyrighted files (Limewire was later added to the list). Initially, they were blocked because it was unclear whether these foreign companies were subject to French law. The relevant French court has recently ruled that they are, and so the court cases may now proceed.

Since three of those programs are free software, this is clearly a big problem, because it means that people around the world who create such software might be held liable for the actions of their users in France. That's not something most coders would be happy with, even if they have no intention of visiting. Clearly, then, much more is at stake here than France's perverse desire to cut itself off from the 21st century.

Resistance to “three strikes and you're out” approach has been growing for a while. The problem is, despite the success of the initial campaign in convincing the European Parliament, the Council of Europe, led by Sarkozy, is using every trick in the EU book to circumvent the amendments that were added.

Moreover, if the “three strikes and you're out” is legitimised in this way, there is bound to be huge pressure on national governments within the EU to implement it in local laws. And that, in its turn, will encourage copyright maximalists to push for the same elsewhere. New Zealand has already approved the “three strikes and you're out” policy, and others are considering it. The more widely it spreads, the more likely it is that it will spread yet further – to the US, for example.

This means that the French/European moves must be nipped in the bud if we are to prevent a massive leap backwards for global online rights. And that, perhaps, is the key argument that can be used here: that the Internet is now so interwoven with everyday life (in developed countries at least, and increasingly elsewhere) that cutting it off is akin to cutting off someone's electricity or water supply. Nobody would countenance that, and only retrogressive monopolists like the recording and film industries would contemplate it for the Internet.

So here's something concrete that everyone can do: start sharing. No, I don't mean copyrighted content, but this meme: that the Internet is a right. Pass it on.

Glyn Moody writes about openness on opendotdotdot.


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May we talk about this in a reasonable manner?

ProfBib's picture

This is an important topic and it's wonderful to be able to have an intelligent conversation about such things. Inflammatory vocabulary such as "freedom fries" and "losers," however, does NOTHING to contribute to a reasoned and informative exchange of ideas.

In the interest of full disclosure, my reaction is painted by my subjective point of view: I am a French professor and dual citizen of the good ol' USA and France. I am also a user of and advocate for free and open access software and other flavors of informational freedom.

Surely, I do not think that the idea of a "three strikes" law is a productive use of administrative energies, but the attitude toward pirated music and other forms of media is -- based on my personal experience -- much more nonchalant than here in the US, even when comparing similar age groups (most of my contact is with 18-24 year olds). The French government is trying to do something about that. What they're doing is not, IMHO, a realistic or productive measure, but that provides at least a bit of context.

In addition, we should realize that we are not free of restrictions to Internet access here in the US. The difference is that they come in the form of content blocking and "throttling" performed by huge corporations as opposed to the government.

Everyone who believes in openness and freedom, whether in France or in the US, is on the same team here and we're fighting the same fight, so let's stick to the issues and avoid the unproductive rhetoric.


Glyn Moody's picture

But it's sad that a land that practically invented "la liberté" now seems to place such little store on it. What's worse, M. Sarkozy seems hell-bent on imposing his own retrograde agenda on the rest of Europe (as the recent machinations within the EU show).

French Tanks 6 gears

padric-Im_the_orginal_padric's picture

What ever. The more rights are suppressed the bigger the backlash. BTW France?? only the biggest losers in history. l'administrateur?!?!
5 in reverse, one forward in case of a rear assault.

Freedom Fries anyone?

Anonymous's picture

I think it's time we put "Freedom Fries" back on the menu.

First time I see the US

Anonymous's picture

First time I see the US being in the right end of the debate. Being from a EU country I always considered the US moving in the wrong direction.
Also, how much of this lawmaking is actually indirect pressure coming from the US???


El Perro Loco's picture

Sorry, I didn't follow you.
You got me curious, now. Care to elaborate, please?

Do what I say, not what I do...

Anonymous's picture

> The French President today trumpeted a new plan by some of the country's ISPs [...] to shut off illegal file-sharers' internet access.

Does that mean that, if the ISP shares binary files of GPL applications without giving away the source code,
the ISP itself will be shut down, or has an expensive court to be involved in that particular case?

I'm sorry, but you're wrong.

Anonymous's picture

I'm sorry, but you're wrong. Dead wrong. Access to the Internet is a *privilege*, not a *right*.

It is this attitude of entitlement that contributes to many of modern society's ills.

I agree, actually

Glyn Moody's picture

Generally, I hate this idea of a "right" to things. But in this case, it seems the only way to get the politicians to understand that they are making a mistake cutting people off in this way. If it is framed in terms of "rights", it makes the story simpler - always a good idea when dealing with politicians.

To the contrary

Rufus Polson's picture

I would argue that it is precisely the attitude that people aren't entitled to anything that has created many of modern society's ills. Quality of life in the US started declining exactly at the point when those who stridently objected to "entitlement" (generally only for non-rich people) got their hands on the steering wheel. The post-WW II prosperity boom was created by those who felt people *were* entitled to things.

A relatively minor pedantic

Anonymous's picture

A relatively minor pedantic point: The Council of the European Union != The Council of Europe. They are two entirely separate bodies. The COE is a much older institution than the EU, and contains several countries which are not EU members.

I knew I'd get it wrong...

Glyn Moody's picture

...but in my own defence I'd argue there are too many similarly-named institutions in the EU....

You need to be careful when

Anonymous's picture

You need to be careful when you say "that the Internet is a right" as that is the same thing the US gov is saying in order to push rolling out taxpayer paid internet to the country. Maybe something along the lines of an open/unrestricted Internet is a right.


Rufus Polson's picture

Aside from the specific problem in this case that it would involve the particularly corrupt US government, I don't see the problem with the internet as a public service.
I don't know about the US, but here in Canada electrical, telephone and heating gas services were mainly built by the public sector. In those countries with the most advanced internet infrastructure, this has generally come about through government involvement.
Why is it so important to make sure the people who brought you the implosion of the financial system are the ones bringing you the internet?

Right? Wrong.

-bob's picture

Um... maybe because, as you point out, it was a particularly corrupt US government that triggered the implosion by insisting that financial institutions make loans to people that had a "right" to the money even though they could not repay it?

Also, the reason the Internet infrastructure sucks in the US compared to the rest of the world is largely due to industry being able to use the corrupt US governments regulatory systems to suppress competition.

Bottom line - it's not a "right". There are even people alive today that were born BEFORE it existed. If we (or our governments) mess it up it is likely that something will come along to replace it. Maybe something better and even more threatening to "the powers that be" (be they commercial or the type that has a military behind it...)

Oh, and a lot of us in the US are not looking forward to things like the Health Care System of CA coming here, but, we'll probably have to deal with it. It's not like we have a right to choose things like our own health care - right?

"Health Care sysyem of CA - right to choose our own health care"

Greg La Gana, M.D.'s picture

What "health care" do you think we should have a right to choose?

I'm assuming that this whole thread of conversations about France, the EU and the Internet has to with the fear of governments trashing human rights. I'm not really a heavy computer user, but I'm still trying to figure out why people think it's o.k. to share copyrighted material without compensating the person who created it. Where's the creator's rights in that concept?

Being a physician, I'm obviously interested in the whole health care debate. Hence my opening question. So what "rights" do the 46 million unisured people in the U.S. have under whatever your idea of a just health care system? Or to focus the question a bit, ow would you solve the problem of the right to universal coverage?

Just curious.


Glyn Moody's picture

I wasn't suggesting that this was a perfect slogan, but wanted to convey a general, crude idea to counter another extremely stupid idea....

The role of the GPL?

James B. Beam's picture

I would assume that according to the GPL, the actual coders of Free Software that use the GPL license do not have any liability since all programs are provided with no warranty whatsoever. This is translated as "Use at your OWN risk". So this means that even if some pervert judge decides that the poor person who downloaded a "copyrighted" file is a criminal, he/she committed the crime at their OWN risk. At least the coders won't get into trouble if their licensing is proper. It might be a good idea though to explicitly state this in future GPL licenses.

Never underestimate...

Glyn Moody's picture

...the cunning of stupid judges, who might say that you can't just put "at your own risk" in a licence and avoid all responsibility. In any case, what worries me is the chilling effect that such cases may have: even if there is no risk, people may well avoid contributing just to be on the safe side.

Weak law, strong politics

El Perro Loco's picture

Sarkozy and his "friends" are a despicable lot. A very powerful lot nonetheless, politically speaking.

Any law similar to the one discussed in this article is deeply flawed. Taken to the extreme, computer makers, IBM, Micro$oft, the electricity companies, the inventors of the alphabet and everybody else (including but not limited to open source), would be guilty of sharing whatever is shared on the Internet. And, for consistency, things *should* be taken to the extreme. (An extreme that is clearly an absurd, in this case.)

However, the law is just the law, and the political power is way above the law. Political power uses physical and psychological violence. Remember Aesop's fable about the wolf and the lamb, the latter of which was drinking water downstream from the wolf. (Research it if you don't know it.)

My point now is: unless there is a concerted resistance against them, fascist totalitarianism will soon be back to Europe (it is already making deep inroads into Europe's life). Controlling the Internet is just the tip of the iceberg.

I just keep wondering how Europeans put up with all this... Didn't they learn anything from World War II? Very, very sad.

Or take the telephone...

Glyn Moody's picture

...just think of all the crimes that have been commmitted thanks to that.

Take weapon manufacturers

Anonymous's picture

Take weapon manufacturers ... why no one takes them to courts for the reason that crooks use their guns to kill people? The precedent with Azureus et al. does not make any sense!!!! As always some politicians are lobbying interest of others.