Musicians v. Pirates v. Bloggers, Three-Strikes Laws, France’s Declaration of 1789, and a Little Richard Marx

The music piracy debate in Europe got a lot of attention last week. It wasn’t just the anti-piracy statements/tirades from Elton John and Lily Allen, the resultant spat between Allen and Radiohead’s Ed O’Brien, or Techdirt’s “outing” of Allen’s own apparently infringing activity, which looks to have caused Allen to shut down her days-old anti-piracy blog (all of which events were roughly related to discussions of legal proposals in the United Kingdom addressing illegal music sharing).

On September 22, 2009, the French parliament approved legislation empowering judges to kick off teh Internets a user who is caught on his “third strike” illegally downloading music or movie files. The French bill is reportedly modeled after a similar law in Sweden that went into effect earlier this year and has led to a massive reduction in Internet traffic in that country. Within days of the passage of the bill in France there were calls for the U.K. to adopt similar legislation.

The French bill targets not only those who share files illegally, but those who merely download files illegally.

An earlier version of the French bill did not require a judge’s authorization to cut off a user’s internet access but instead gave the power to a “High Authority” agency created by the bill. The French Parliament had approved that bill as well; however, it was overturned by the French Constitutional Council, which ruled against such a sanctioning power being delegated to a nonjudicial agency. The Council stated in its decision that “under section nine of the Declaration of 1789, every man is presumed innocent until [he] has been proven guilty” and that this applied “to any sanction in the nature of punishment, even if the legislature has left the decision to an authority that is nonjudicial in nature.”

It is also worth mentioning that the French bill appears to be aimed not only at those who share files illegally, but at those who merely download files illegally. This brings to mind a question that I have heard discussed several times: in the United States, is downloading music files OK, while only uploading and sharing files is not OK? As Nate Anderson of Ars Technica notes, downloading music you have not purchased is indeed usually an infringement, because “downloading a file necessarily makes a copy of that file and therefore can infringe [a copyright holder’s] reproduction right.”

Incidentally, a similar “three strikes” policy announced earlier in 2009 by the Recording Industry Association of America (RIAA) didn’t chart in the U.S.; no major service providers appeared eager to cut off internet access to illegal downloaders at the behest of the RIAA. Don’t cry for the record companies just yet, though: users found to have shared copyrighted music online in the United States have been recently ordered to pay huge statutory damages judgments to the industry group. Witness the June 2009 jury verdict awarding $1.92 million in damages to the RIAA based on defendant Jammie Thomas-Rasset’s illegal sharing of 24 songs (including Richard Marx’s “Now and Forever,” the possession of which should be a crime unto itself) in the U.S. District Court for the District of Minnesota case Virgin Records America, Inc. v. Thomas.