Last week, France’s HADOPI released a report of figures from its first 20 months of operation.
HADOPI, if you recall, is both the French law implementing a graduated response, or “three strikes”, approach to mitigating online infringement, and the agency created to administer the law. Internet users who download an infringing work are first sent a warning email by the agency. If the user’s ISP notes a second infringement within six months of the first, a certified letter is sent to the user. A third infraction within a year of the second warning results in additional measures — including termination of internet access for up to a year, though court review is required before any such measures can be taken.
One thing revealed from the HADOPI report is that there has been an unofficial “fourth strike” added by practice: only users who infringe after a third warning are referred to a court for further measures.
Since it began operations, HADOPI has identified 3 million IP addresses connected with downloading infringing works. Of those, it sent out 1.15 million initial warnings. 102,854 users received a second warning. Of these, 340 received a third warning. Thirty of these cases resulted in repeated infringement after a third warning and were reviewed by a commission within HADOPI, though only 14 of those 30 have been referred to a court for judicial review.
In other words, from first identification, only .00047% French internet users face punitive measures for repeated infringement. These numbers are consistent with the program’s goal of educating internet users about the harms of copyright infringement — and turning them toward legal options — rather than punishing users.
What’s interesting here, however, is how substantially the picture that emerges from these figures differs from the apocalypse predicted by copyright skeptics when the law was first introduced.
The EFF, no stranger to hyperbole, described the HADOPI agency as an “executioner” and the law like a “guilliotine.” It warned of other country’s following France’s lead and ”pressuring ISPs to throw their customers offline.” Even as recently as a month ago, the organization continued to call it “ham-fisted,” saying the process “runs contrary to principles of due process, innovation, and free expression.”
Would you believe Techdirt has also chimed in over the past 20 months? The site has said of HADOPI: ”Due process? It’s dead.” The law, according to Techdirt, was ”designed to kick accused (not convicted) file sharers off the internet“, it “suggests a huge percentage of French citizens at risk of losing internet access“, and “has effectively criminalized vast swathes of that country.”
This type of rhetoric is all too common from copyright skeptics whenever any effort is made to protect creators’ rights. One could call this “copyright hypochondria,” where every minor change in copyright law or enforcement is surely a symptom of a life-threatening disease. Far more often, it’s not, as this story demonstrates.
HADOPI’s numbers show that, contrary to the claims of copyright skeptics, the law did not threaten “vast swathes” of French internet users with punitive measures based solely on accusations. Instead, it seems to have achieved its purpose of educating users. Only about 38% of the IP addresses identified in connection with unauthorized downloading actually received an email warning. Of those, less than nine percent continued to infringe. And the bottom line is that only fourteen users in twenty months face actual penalties for continuing to infringe despite repeated warnings — less than one for each month of operation.
Also contrary to warnings that the process would surely lack due process or rely on naked allegations of infringement, the numbers suggest strong protections. While thirty users reached the unofficial fourth strike, HADOPI only recommended less than half to a court for further action.
So far, it appears to be the case that HADOPI has reduced piracy in a fair manner, but is it effective? Early studies suggest it is. A 2012 study by researchers, including professor of economics Brett Danaher, noted that consumer awareness of HADOPI has increased iTunes sales in France by over 22%. And a report by HADOPI itself after 17 months of operation showed that the clear decline in online piracy coincided with a rise in quality and quantity of legal cultural offerings.
In the US, a voluntary agreement between ISPs and major content producers that takes a graduated response approach is set to commence within the coming months. Like HADOPI, the process involves a series of escalating warnings to internet users who engage in unauthorized downloading. Unlike HADOPI, the process involves as many as six “steps”, and, while it provides for mitigation measures after the fifth or sixth steps, there is less of an emphasis on temporary termination of internet access. If HADOPI’s experience is any indication, the Copyright Alert System should do a good job in helping reduce online piracy and guiding internet users to legal options.
Unless you’re a copyright hypochondriac, of course, in which case the Copyright Alert System means that “ISPs are poised to start treating their customers like criminals, restricting their access to the Internet.” Sound familiar?