By Bruce Gain | Wired.Com
02:00 AM May. 23, 2005 PT
PARIS -- Record labels and movie studios are counting on the courts to help wage their war against global online piracy. But in France, some courts are refusing to go along.
Judicial activism is roiling the entertainment industry here, as judges release convicted fileswappers with suspended sentences associated with otherwise draconian penalties stipulated by copyright law.
Now, in a widening rift, the powerful president of the French magistrates union has begun to openly advocate decriminalizing online trading in copyrighted works for personal use.
"We are in the process of creating a cultural rupture between a younger generation that uses the technologies that companies and societies have made available, such as the iPod, file download software, peer-to-peer networks, etc.," Judge Dominique Barella told Wired News. "It's like condemning people for driving too fast after selling them cars that go 250 kmh."
Barella first began his crusade after writing an article in the French daily Libération in March following rulings by French judges who suspended jail time and fines for alleged perpetrators who were caught downloading music for their personal use. The leniency of the French judges illustrates what Barella describes as confusion over the definition of the intellectual property protection law. Instead, a more appropriate policy needs to be adopted in France and in Europe that protects what he says are mostly young people of the MP3 generation who are weak targets against the machinations of the entertainment industry's legal agenda.
The industry is not taking Barella's statements lightly. In a letter last month addressed to the French Minister of Justice Dominique Perben, more than 20 representatives of France's entertainment, music and film association bodies and advocacy groups expressed their outrage.
"We are surprised and shocked that the president of the magistrates union, given the level of influence he has on his (judicial) colleagues, can publish in the press a call to not criminally sanction criminal acts, which contradicts the intentions of government bodies," the letter read.
The letter also thanked the minister in advance for "taking actions that he deems appropriate."
France isn't alone in creating legal headaches for the entertainment industry's copyright enforcement efforts. A Canadian appeals court last week upheld a decision from a lower court finding that internet service providers in the country are not required to divulge the identity of accused fileswappers.
Barella says last week's letter to the ministry is hardly surprising given the industry's copyright campaign. But he said he believes it is ultimately futile to criminally prosecute fileswappers across Europe who stand accused of illegally distributing music, movie or other copyrighted media files using peer-to-peer networks.
"This is a subject that will serve as a source of debate for Europe since Â… when there is a problem with the application of the penal code on a large scale, the problem must be examined at its source," Barella said. "It is similar to the sociological consequences of the Prohibition period in the U.S. (during the 1920s). Certain laws can have unexpected consequences on society."
Instead, criminal proceedings should be geared more toward prosecuting large-scale counterfeiting rings instead of going after "a young person who fills up his or her iPod."
"The resources of the police and judges are exhausted by these small cases, and do not take care of the large international (counterfeiting) rings," Barella said, adding that the role of the magistrate union is to communicate to society his colleagues' concerns.
Such thinking is anathema to the industry, which is counting on civil lawsuits and criminal proceedings to create a deterrent that will help bring a generation that grew up surrounded by easy internet piracy back into the ranks of paying customers. Lauri Rechard, the deputy general counsel and director of licensing and litigation for The International Federation of the Phonographic Industry, or IFPI, said there is nothing innocuous about the act of downloading and uploading copyrighted files.
"People still look at this as 'harmless, file sharing,' but the fact is that the effects are the same, or even actually worse, than a massive-scale organized crime piracy operation," Rechard said. "If you look at the number of files that are distributed and the number of music that is being offered without payment to the authors and injury inflicted to the copyright holders, at some point people need to start understanding what we are up against here."
Thus far in Europe, hundreds of criminal indictments and civil proceedings against alleged illegal file downloading mostly initiated last year have not resulted in any prison sentences served, according to the IFPI. Among the more severe sanctions, 98 individuals in Denmark have agreed to pay a "few thousand euros," out of which one individual will pay up to 13,000 euros in damages each. Thirty-nine parties in Germany will pay up to 15,000 euro apiece to settle claims in Germany, the IFPI said.
Meanwhile, legal actions and the growing popularity in Europe of filing sharing over P2P networks will likely not cancel each other out in the near time, according to Sacha Wunsch-Vincent, an economist for the computer and communications policy arm of the OECD. So instead, the entertainment industry might make content more readily available to consumers in Europe to dissuade illegal file downloading.
"Recent developments have proven that new business models to get content out to customers can work," Wunsch-Vincent said. "Now is the time for the content industry, access and technology providers to get out of courts and back to business."