A new antipiracy law was announced in France two weeks ago, under which French Internet users who download illegal content repeatedly could face suspension or termination of their ISP accounts.  The agreement calls for a "three strikes, you're out" policy towards downloaders that includes warning messages being sent to them.  An independent authority will be set up to determine which users merit warning messages or penalties and take actions.  The legislation necessary to implement the agreement is to be presented to French parliament early next year.

The so-called Olivennes Agreement is the result of a three-way deal among the French government, ISPs, and content owners, with the support of online retailers.   It is named for Denis Olivennes, CEO of the major French media retailer FNAC and chair of the Anti-Piracy Commission that drafted the agreement and presented it to French President Sarkozy. 

Copyright owners have several roles in this agreement.  First, it enshrines into law -- for the film and music industries, at least -- the phase-in of fingerprinting and watermarking as legally recognized means to claim misuse of content and issue notices to a regulatory authority that lead to actions against users. 

Content owners have also agreed to various pro-consumer concessions. The music industry (as represented by IFPI) has agreed to phase out the use of non-interoperable DRM for sale of music tracks online (only sales; subscription, ad-based, and other business models are not affected), and the film industry has agreed to compress release windows for online movies and take steps to make them generally more available. 

The Olivennes Agreement calls for ISPs to implement both content identification (fingerprinting and/or watermarking) and actions against users in good faith. The regulatory entity that will direct this entire arrangement is the same one that was established last year to administer the DRM interoperability provisions of the essentially toothless DADVSI law. 

The French adaptation of content identification technologies to catch illicit downloaders is the converse of the approach contemplated in the United States, where uploaders instead of downloaders are the target.  Content owners in the US are seeking legal support (through, for example, Viacom's litigation against Google/YouTube) of their current use of fingerprinting to catch uploaders under Section 512 of the copyright law, the so-called notice and takedown provision. 

Of course, unauthorized uploading of copyrighted works is illegal in France.  But the new agreement does not provide legal support for technological measures to catch uploaders.  We question whether this is the most sensible approach.   Leaving aside the law itself, it is tantamount to installing video cameras along the Champs-Elysées that are trained to recognize buyers of bogus designer handbags but not the street vendors who sell them, and then barring the buyers from entering the Champs-Elysées again for any reason. 

In other words, the Olivennes Agreement does nothing to help stem the supply of unauthorized content.  Ironically, far from eliminating DRM in France, it may well shift DRM usage to that most ironic of purposes: to aid pirates in uploading content so that users can download it without being detected.  All but the most trivial encryption schemes would suffice for this purpose, because they would foil fingerprinting and watermarking technologies.

There is also the possibility that users will get caught buying content from a non-licensed retailer under the mistaken impression that it is being sold legitimately.  Certainly anyone who has used the now-defunct Russian site allofmp3.com understands this.  The law implies a consumer's duty to determine what content is being offered legitimately and what isn't, which seems unfair.  We have a hard time imagining an automated system that is effective without putting unfair burdens on independent content owners and consumers who make honest mistakes.

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