On HADOPI and “Copyright Hypochondria”

by Stephan Kinsella on September 16, 2012

On the latest This Week in Law, TWiL #179: Judges of Unspecified Gender (which I’ve been a guest on a couple of times), hosts Denise Howell and Evan Brown and guest hosts Terry Hart and Jeff Orduno discuss the French HADOPI “three strikes” copyright law—where you can get banned from the Internet for piracy—and how it’s being applied. They also discuss a similar “six strikes” provision coming soon to the US. In recent stories, e.g. BBC News – Pirated Rihanna songs land Frenchman in court and Hart’s own HADOPI and Copyright Hypochondria, it’s reported that the initial results of HADOPI enforcement were less draconian than some have feared. As Hart writes in his piece:

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.

… Since its inception, HADOPI has been describe as ”repressive” and ”draconian“, with dire predictions that ”already overworked courts risk being overwhelmed by piracy cases.”

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.

So basically here we have a French copyright law that potentially could impact over three million French residents, potentially banning them from the Internet, with measly due process provisions (email warnings that might go to a defunct email account, and so forth). Hart calls those alarmed at state power to punish people this way in the name of copyright infringement “copyright hypochondriacs”—after all, the initial application of the law “only” led to 30 people (out of three million initially warned) repeatedly infringing after the third warning, and “only 14 of those 30 have been referred to a court for judicial review.” And of course this included one man who “was fined even though he did not download the Rihanna songs”—his soon-to-be ex-wife did. But no matter—you have to break some eggs to make an omelet.

The people alarmed at this state power to censor people, punish and fine them for what are innocuous actions are denigrated as “copyright hypochondriacs.” After all, the state has not “abused” this power too much so far—so what’s to worry?

Co-host Evan Brown (around 9:20-) mentions me by name saying I’m the only person he’s ever heard that thinks we should get rid of IP altogether, but that basically everyone else thinks there is some reason to have IP protection. (Though I am of course not alone in IP abolitionism; historically, there have been thinkers like Benjamin Tucker and others;¹ Mike Masnick, mentioned in Hart’s piece, is close to being an IP abolitionist, as are many others, such as Austro-libertarians and left-libertarians,² as well as tech and artistic types like Rick Falkvinge and Nina Paley, a former TWiL guest. The even some other patent lawyers who oppose patent law.) So, according to this reasoning, if we are going to have IP rights, we have to enforce it. The implication being that people who support IP should not be too alarmed when we enact laws and policies designed to enforce IP rights. Denise Howell, who seems to lean libertarian, is not so quick to join in with the critics of copyright “hypochondriacs.” She recognizes the danger of giving state agencies discretionary power to enforce these provision and the potential chilling and other negative effects of such policies.