France considers striking three-strikes, taxing connected devices

France’s controversial “three-strikes” law is on the verge of being struck.

A report issued Monday by a special commission appointed to recommend changes to French media laws and regulations proposes dismantling Hadopi, the agency created in 2009 (and known by its French acronym) to enforce France’s graduated-response system for policing online piracy, and significantly reducing the penalties for file-sharing. If adopted, the proposed steps would mark a stunning reversal for a law hailed by copyright owners just four years ago as a model for dealing with rampant online file-swapping.

The commission was headed by Pierre Lescure, the former head of Canal +, and was appointed by the Ministry of Culture to review all French media laws and recommend changes to bring them up to date for the digital era. The nearly 800-page report contains 75 80 recommendations ranging from shortening movie release windows, which are set by law in France, to imposing a tax on all devices capable of connected to the Internet to create a fund to support local French cultural productions (more on that in an upcoming post).

The law creating Hadopi was a signature measure of the previous French government under president Nicolas Sarkozy. Its enactment, after a long political battle, made France the first country to formally adopt via legislation a system of graduated response to file-sharing. Under the law, consumers caught swapping files illegally over the internet were first sent warning letters alerting them that their activity was being monitored. If they persisted they were sent a sterner warning, and after a third offense they could be subject to a court order barring them from accessing the internet for at least a year.

Administration of the law under the newly created government agency was never smooth or consistent, however, and the ultimate penalty was very rarely imposed. The law’s overall impact on the level of online piracy, moreover, was doubtful as measured by the government’s own analysis.

The Lescure report recommends the most severe penalty for illegal file-sharing be reduced to a fine and the Hadopi agency’s authority to monitor online piracy be transferred to the TV regulatory agency known by its French initials CSA. That would effectively end the “three-strikes” enforcement policy even if elements of the Hadopi law remain on the books.

The report issued Monday is just the first step in what is bound to be a long process of overhauling France’s media laws. If adopted by the Ministry, the recommendations would be subject to a period of public comment, and would then have to be incorporated into legislation and debated in the French parliament, where some are certain to face opposition.

It’s already clear from the report, however, that three-strikes has lost what support it still had within the French government, which is now controlled by parties that had largely opposed the law from the start. That loss of support from the government that pioneered three-strikes also likely ends what hopes copyright owners still had of extending the use of three-strikes beyond France.