France’s copyright penalty system Hadopi is now largely ineffective. Since 2010, the model of “graded response” to suspected copyright infringement in P2P networks (file sharing) has provided for a fine on the third occasion (“three strikes”). The problem: To do this, the Internet provider (ISP) of the suspected connection owner stores personal data together with information about the presumably copied works. This is done at the request of private organizations. The data can provide deep insight into particularly sensitive areas of private life, such as sexual or religious orientation.
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If the regulatory authority responsible for Hadopi, Arcom, queries this data more than twice, a pattern may emerge. Therefore, on Thursday, the Conseil d’État, France’s highest administrative court, prohibited Arcom from requesting the data more than twice per suspected connection holder (Finding N° 433539). Without independent permission for inspection, the data protection risk is disproportionate to the punishment of minor copyright infringements and violates the requirements of the European Court of Justice (ECJ) on data retention. Separate storage of IP addresses and content data would be necessary.
This eliminates the possibility of the public prosecutor’s office imposing a fine for the third violation. The first time a suspected case occurs, the authority sends a warning by email, the second time by registered mail. But the previously planned fine of up to 1,500 euros will no longer apply for the time being. The ban on third-party data linking applies immediately. The Ministry of Culture wanted the data breaches to continue for a year; But the Conseil d’État rejected this, especially since exactly two full years have passed since the relevant ECJ reference decision.
Alternatives are possible
During this time, legislators or regulatory authorities could have reacted to the ECJ’s requirements. It would be possible, for example, to impose requirements that require internet providers to store the data separately; Punishment for the second offense; Approvals in individual cases by a court or other independent authority; or blind warnings in which Arcom does not find out which works are said to have been illegally copied.
Next Wednesday, the regulatory authority would like to consult with representatives of the major rights holders. However, the Hadopi system is expensive to operate and the importance of P2P file sharing has declined significantly since its conception. In addition, the effectiveness of the three-strike approach has always been doubtful.
If the suspected copyright infringements are so serious that they become criminally relevant, the highest court also considers multiple merging of the data to be permissible. However, criminal prosecution is possible anyway, even without Hadopi with its three-strikes model.
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The suspension of in-depth data analysis is a success for the four who have been litigating against Hadopi for many years: the civil rights organization Quadrature du Net, the oldest ISP in France French Data Network, the regional ISP Franciliens.net (both non-profit) and the association of non-profit Internet access providers in France (Fédération FDN).
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