Share This: The Internet is a Right

by Glyn Moody

“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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