Tuesday 5 March 2013

HADOPI Report on Fighting Piracy on Unlawful Streaming and DDL Sites

Last week (February 25th), HADOPI (the French administrative body in charge of the so-called three-strikes law) published its long awaited report on piracy on streaming and direct download sites.

As readers no doubt already know, the three-strikes system overseen by HADOPI (two warnings and then, potentially, suspension of internet access) concerns primarily, if not exclusively, peer-to-peer platforms and technologies.  This, of course, has left a gaping whole filled in part by streaming and DDL sites (also called cyberlockers or one-click file hosters).  Due partially to the pedagogical success of HADOPI, there has been a perceptible movement towards these types of sites where one accesses content (either as a download or as a stream) via links to cyberlockers.

After having commissioned a report on the economic model of such sites in 2012, HADOPI has now produced its report and recommendations regarding fighting piracy on such sites. 

Among the various avenues explored by HADOPI in its report are the following:

- redefine the scope of Section L.335-2-1 IPC (currently limited to publishing and distributing software manifestly intended for infringement) so as to encompass those online services which manifestly intend to engage in piracy (can anyone say SOPA?); this could conceivably cover both cyberlocker services and related linking sites (one of the key features of the 2012 economic report was to highlight the complementarity and importance of these so-called linking sites which actually provide the necessary links to find the content stored on cyberlockers, which quite often do not have search engines);

- clarify the notice and takedown rules applicable to hosting sites (cyberlockers often successfully invoke the legal regime of hosting sites inasmuch as the content stored thereon is supplied by third parties) so that it is clear that the hoster's duty, once notified, is to take down and keep down the notified unlawful content; it should however be pointed out that last summer the French Supreme Court (Cour de cassation) expressly ruled that imposing such an obligation (at least where it is not limited in time) on a hosting entity contravenes the e-commerce Directive (and its implementing statute in France);

- putting in place a system of alert against hosting sites that repeatedly fail to comply with their obligations;

- various recommendations concerning making intermediaries (linking sites, search engines, ISPs, financial/advertsing operators) more involved in the fight against piracy.

As regards actions directed at the user of such services, it is interesting to note that the report characterizes the extension of the graduated response as "delicate" due, on the one hand, to the difficulty in obtaining adequate proof of unlawful activity and, on the other hand,to the fact that, with regard to streaming at least, it is far from clear that mere consultation is criminally unlawful.

Link to Report here (which includes the 2012 Economic Report as an Appendix).

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