Viewing cable 09PARIS559, FRANCE'S INTERNET PIRACY LAW: UMP CALLING

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INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
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UNCLAS SECTION 01 OF 03 PARIS 000559 

SENSITIVE 
SIPDIS 

STATE PASS USTR FOR RBAE 

E.O. 19523: N/A 
TAGS: ECON ETRD FR
SUBJECT: FRANCE'S INTERNET PIRACY LAW: UMP CALLING 
TOTO 

¶1. (SBU) Summary: In a theater-of-the absurd 
parliamentary maneuver, France's "three-strikes- 
you're-out" law to crack down on internet piracy was 
torpedoed April 9 by the man (or rather 10 Socialist 
MPs) behind the curtain. The government intends to 
bring the law back for a second reading in the 
National Assembly on April 29, and to a formal vote 
on May 12. GOF sources are confident the government 
will control the vote this time around, though admit 
there are some policy differences within the UMP 
majority (primarily over whether those who are 
ultimately cut off from internet service should pay 
for the balance of their internet subscriptions). 
End summary. 

¶2. (SBU) France's closely-watched graduated response 
law that would deny users access to the Internet after 
three piracy violations was torpedoed by the National 
Assembly on April 9. Olivier Henrard, legal advisor 
to the Minister of Culture and point-person for the 
"Creation and Internet" bill, told us that the 
opposition Socialists had managed to spirit 10 of 
their MPs into a broom closet concealed by a heavy 
curtain in the entranceway to the Chamber. Under 
normal circumstances the majority would have put a 
stop to proceedings had it noticed a cluster of 
oppositions MPs hovering outside the Chamber. But 
with the Socialists out of view, the UMP allowed the 
session's presiding MP, a Socialist, to bring the 
measure to a vote. At which point the MPs rushed from 
their hiding place to cast their "no" votes. (Note: 
It is not uncommon for votes in the National Assembly 
to take place in a near-empty chamber. The final 
"Creation and Internet" law vote was voted down by 21 
Q 15. End note.) 

¶3. (SBU) Henrard indicated the government will present 
the same text for a second reading on April 29, 
following a parliamentary recess. Current plans call 
for a final vote on May 12. Although Henrard is 
confident in the bill's ultimate passage, he admitted 
there was some disagreement within the majority over a 
stipulation that requires users who have been 
disconnected from the internet for IP violations to 
continue paying their ISP contracts. An amendment has 
been proposed from the National Assembly floor that 
would alter that arrangement. 

¶4. (SBU) The Socialist opposition, some UMP MPs, and 
consumers groups insist the April 9 defeat was 
indicative of a greater level of discontent over the 
bill than the government cares to admit. UFC-Que 
Choisir, a consumers group linked to the dust-up over 
the 2006 digital copyright law (in which the GOF 
ultimately lost control of proposed legislation in the 
National Assembly), said the MPs had "heard the 
displeasure of consumers." UMP MP Herve Mariton said 
the government "was afraid of its own majority" and 
had tried to pass the bill below the radar (a notion 
rejected by the Culture Ministry's Henrard, who says 
the press regularly turns to the same four or five UMP 
MPs who oppose the bill to generate controversy.) 

U.S. Industry Views 
------------------- 

¶5. (SBU) U.S. industry continues to watch the bill 
closely. Motion Picture Association of America (MPAA) 
President Robert Pisano told the Charge on March 20 
that the graduated response law is "very important" to 
the fight against online piracy, and to MPAA. The 
Recording Industry of America has expressed similar 
sentiments. 

¶6. (SBU) The Business Software Alliance (BSA) has 
expressed concern over a proposed amendment to Article 
15 of the 2006 French Digital Copyright Law that has 
been included in the "Creation and Internet" bill. 
That article, which industry has contested since its 
inception, requires firms to provide source code of 
software that includes technical protection measures 
to the French authorities. Originally introduced as 
an amendment from the National Assembly floor, the 
measure was designed to address spyware concerns 
(reportedly in the wake of the 2005 Sony rootkit 
scandal in which Sony had sold CDs in the United 
States with copyright protection measures that 
installed onto users' PCs and enabled remote 

PARIS 00000559 002 OF 003 


monitoring). Article 15 has neither been enforced nor 
the subject of implementing regulations since the 
Copyright Law was passed. 

¶7. (SBU) BSA says it had hoped the "Creation and 
Internet" law would fully repeal article 15. Instead, 
the draft amendment would have firms turn over source 
code only "at the request of French authorities," 
rather than automatically, as the law currently 
stipulates. GOF officials, including Henrard, 
advisors to Digital Economy Junior Minister Nathalie 
Kosciusko-Morizet, and the Secretary General of the 
Technical Measures Authority (an independent body 
established to implement aspects of the Copyright law, 
to be replaced by a new body subsequent to passage of 
the "Creation and Internet" law) tell us there is no 
appetite in the GOF for implementing Article 15. But 
outright repeal of a measure passed only two years ago 
by the National Assembly would have opened another 
political front in a legislative climate that was 
proving challenging. And, they say, leaving vague the 
conditions under which a request for source code could 
be initiated allows the GOF to let the provision 
languish. 

Challenges to Implementation 
---------------------------- 

¶8. (SBU) While most observers expect the "Creation 
and the Internet" bill to be approved this time 
around, there are hurdles ahead. Opposition MPs 
intend to make implementation and enforcement as 
difficult as possible, starting with a likely 
challenge before the Constitutional Court (which rules 
on whether new laws comply with France's 
constitution). They have also taken their case to the 
European Parliament, where debate over the right to 
disconnect users from the internet has been injected 
into discussion of the EU telecoms package. The 
Culture Ministry's Henrard decried Socialists' efforts 
to politicize the telecoms package, and indicated the 
GOF would push back on any EU efforts to preclude the 
GOF from implementing its law. (Note: The telecoms 
package is being shepherded through the EP by 
Socialist group MEP Catherine Trautmann, French 
Culture Minister from 1997 Q 2000 in the Jospin 
government. End note.) Socialist MEP candidates for 
the June EP elections are also trying to make 
political hay by stressing the GOF's "contempt for 
representative democracy" in presenting a bill that is 
essentially identical to one so recently rejected by 
the National Assembly. 

¶9. (SBU) Then there are the sheer logistical 
challenges of implementing the legislation. Users 
caught downloading illegal content will first receive 
an e-mail warning from the ISP. Following a second 
"strike," users will receive a (computer-generated) 
warning letter in the mail from the soon-to-be- 
established High Authority for the Distribution of 
Works and the Protection of Rights on the Internet 
("HADOPI" in French). Culture Minister Albanel has 
told the National Assembly Cultural Affairs Committee 
that, under a worst-case scenario, the HADOPI would be 
sending out up to 10,000 letters a day. If the same 
user is caught a third time, his or her Internet 
connection will be suspended for up to one year. 

¶10. (SBU) Henrard says the independent HADOPI 
authority, whose structure and legal standing will be 
loosely- patterned on France's financial markets 
regulatory authority AMF, will have a 90 million euro 
budget to contact, warn, suspend and deny Internet 
access. It will have the right to obtain and peruse a 
year's worth of personal records from ISPs, order ISPs 
to include new filtering systems in their 
infrastructure and fine them up to 5,000 euros if they 
provide access to "blacklisted" users. But ultimately 
the point of the legislation, Henrard concluded, is to 
sensitize law-abiding citizens to the importance of 
fighting internet piracy through personal 
responsibility (including through such steps as 
locking WiFi connections to keep pirates from 
piggybacking onto ISP accounts). 

¶11. (SBU) Comment: The opposition handed President 
Sarkozy an embarrassing, if temporary, parliamentary 
defeat with this episode. Majority leader Jean- 

PARIS 00000559 003 OF 003 


Francois Cope and Parliamentary Relations State 
Secretary Roger Karoutchi both reportedly received 
tongue-lashings from the President after the debacle, 
and press reports suggest Karoutchi even offered to 
tender his resignation. With the UMP's commanding 
majority in parliament, and pressure from the 
President (who personally initiated and supported the 
draft law), the GOF should get its bill through on the 
second reading. But although the bill's initial 
failure was mostly a result of party politics and 
clever parliamentary maneuvering, there are strong 
undercurrents of dissent on the policy. The 
legislation was based on a consultative process that 
included rights-holders, Internet companies and public 
authorities. But an alliance of consumers groups and 
open internet advocates has steadily opposed the 
measure. And their argument that the little guys' 
rights are being trampled by big entertainment 
resonates, even in a country as culturally-sensitive 
as France. 

PEKALA