Today the French Constitutional Court threw out the controversial Hadopi bill, better known as the ‘Three Strikes’ bill due to the provisions for terminating Internet accounts of repeat file sharers. The bill already fell at the first hurdle of the Parliamentary vote, requiring a redraft and revote. Now with this development you could say it’s Two Strikes Out and counting for the Three Strikes bill.
This isn’t the end of the road by any means. In fact there’s every chance it will end up implemented….some time. And there’s the rub. By the time this bill has cleared the successive challenges of domestic legislature, domestic courts, European legislature, European courts etc. the very nature of online piracy is likely to have morphed to such a degree that the Hadopi provisions could be left looking hopelessly outdated and insufficient. This is in microcosm the history of file sharing: every time the industry finally catches up with file sharing via courts and legislation the problem has moved on. This was exactly the process with Napster and Kazaa.
The danger with relying upon legislation and the courts to drive your business ends is that you lose control and become subject to others’ priorities and agendas, which are not always complementary to your own. The bottom line is that it is always preferable to solve business problems with business solutions. It is in the interests of music companies and ISPs alike to reach commercial solutions to their common-interest problems.
At last week’s Music Week conference the then Culture Secretary Andy Burnham (who is now tackling NHS waiting lists as Health Secretary) advised the labels not to rely up government to do their work, but to find common ground with the ISPs and push ahead with solutions. His exact words were:
Don’t wait for the heavy hand of legislation, just do it.
The experience of the much maligned Hadopi bill to date is evidence that legislation alone cannot be relied upon to solve the problem. It simply isn’t agile enough. I will say that there remains a strong case for revising legislation to better protect intellectual property in the digital age. So the legislative process is important, but it should be the foundation and the framework for commercial solutions, not instead of them.