French ISP 'Free' Refusing To Send Out Hadopi Notices To Users [Updated]

from the but-does-that-still-count? dept

Thu, Oct 7th 2010 8:23am — Mike Masnick

At the beginning of September, we noted that some French ISPs had indicated that, as the French three strikes process began, with the Hadopi agency sending out its tens of thousands of "first strike" notices, they would ignore the requests. It appears that may be happening. Apparently the French ISP "Free" (which, as I discovered last time I was in France and tried to connect to its WiFi, is not actually free) has decided that it will not pass along the warning notices to users:

"The law says that it is the Hadopi which has to send the warning 'for his own account and under its stamp, by electronic means, through the (ISPs)'. It never says how it should be sent 'through the ISPs'."

Furthermore, although ISPs have been given the job of identifying and matching up IP addresses with the alleged infringers' personal details (on pain of 1,500 euros per day per IP fine for failing to do so), there are no penalties in place for not sending out warnings.

"But 'Free' did not agree to Hadopi using its SMTP servers without a signed agreement, which apparently was refused, probably because they required payment or other forms of compensations."

The TorrentFreak article notes that other ISPs are complaining that Free is doing this to gain a competitive advantage with customers, but I'm not sure I buy that. After all, it doesn't sound like Free isn't handing over the users' personal info. They're just not letting users know about it. If anything, that could make Free seem worse to users, in that it's handing their info over to Hadopi for the purpose of the three strikes program, but not letting the users know that they have any strikes.

Update: Guillaume Champeau, who originally reported this story explains further in the comments:

The Hadopi law says that in order to face penalties before the court, Internet suscribers must have received at a least one previous warning by paper mail. - It also says that in order to send this paper mail, the HADOPI must have been noticed of new infrigements which must have occured within 6 months after an e-mail was sent. - Therefore, if the e-mail was never sent, no paper mail can be sent either, and the users can't face penalties. Currently the law does not mandate an ISP to send the e-mails. But it does mandate them to hand out personal infos.

So, it sounds like this does protect users, via a bit of a loophole in the Hadopi law. Even if Hadopi sends out the personal info, if the email isn't sent, then Hadopi can't take the person to court, and Free has no obligation under the law to actually send the email.

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Filed Under: france, hadopi, three strikes
Companies: free

26 Comments

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Sneeje (profile), 7 Oct 2010 @ 8:36am

Seems like a game of chicken to see just how committed Hadopi is to ensuring the complete implementation of this process. They apparently have nothing to lose--either Hadopi pays them for use of their SMTP servers or open a legal vulnerability in the process (big assumption on my part, I know) because users will sue when they get cut off without notice.

Free doesn't have anything to lose unless their customers turn against them, but I agree with you Mike, this seems pretty foolish. I suspect they have no altruistic intent here, just being opportunistic and gambling that users will blame Hadopi regardless.
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Dark Helmet (profile), 7 Oct 2010 @ 8:46am

Question...
"If anything, that could make Free seem worse to users, in that it's handing their info over to Hadopi for the purpose of the three strikes program, but not letting the users know that they have any strikes."

Is there a provision in the three strikes law that requires the accused to be informed of the strikes? This would seem to only make sense, to allow for any appeal or response. Perhaps it's treated like a subpoena, in that the accused must be served for it to become a valid "strike". If the strikee never is informed of the infraction, perhaps it is not logged?
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Alex, 7 Oct 2010 @ 8:48am

Free's being as annoying as possible
As far as I know, instead of sending out an computer file with the user information, they mailed a HARD COPY of the information. They're obliged to send the info but the law doesn't say how they're supposed to send it - they chose the least efficient way to protect their customers as much as possible.
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Guillaume Champeau (profile), 7 Oct 2010 @ 8:52am

Why it's not worse but better
Dear Mike, I think your last paragraph is mistaken. Please allow me to try and tell why. As it's French law, it is not easy to explain in English, but I'll do my best. French reading fellows can refer to this story for details: http://www.numerama.com/magazine/16995-comment-free-bloque-l-hadopi-et-tacle-frank-riester-au-passag e.html - The Hadopi law says that in order to face penalties before the court, Internet suscribers must have received at a least one previous warning by paper mail. - It also says that in order to send this paper mail, the HADOPI must have been noticed of new infrigements which must have occured within 6 months after an e-mail was sent. - Therefore, if the e-mail was never sent, no paper mail can be sent either, and the users can't face penalties. Currently the law does not mandate an ISP to send the e-mails. But it does mandate them to hand out personal infos.
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Sneeje (profile), 7 Oct 2010 @ 9:03am

Re: Why it's not worse but better
Ah, that would change things.
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out_of_the_blue, 7 Oct 2010 @ 9:06am

Question is whether they're obliged to disconnect.
If not, that's a loophole that renders the rest academic.

@Mike: 'French ISP "Free" (which, as I discovered last time I was in France and tried to connect to its WiFi, is not actually free)' -- Just start assuming that when you see "free" or "unlimited" in connection with a business that it's neither.
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Anonymous Coward, 7 Oct 2010 @ 9:17am

HADOPI, LOPSI 2 and Sarkorsky which of them don't belong in France.
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Tim, 7 Oct 2010 @ 9:24am

Pretty soon there won't be many french people left on the internet.
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Anonymous Coward, 7 Oct 2010 @ 9:28am

> which, as I discovered last time I was in France and tried to connect to its WiFi, is not actually free

It seems it was originally, thus the name:

"Free was the third ISP in France to offer Internet access without a subscription or a surcharged phone number, on 26 April 1999."

http://en.wikipedia.org/wiki/Free_%28ISP%29
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Anonymous Coward, 7 Oct 2010 @ 9:45am

it sounds like a misguided attempt for a PR campaign.

Free doesn't want the emails to look like they are being sent by them, but it doesn't realize (or perhaps doesn't care) that eventually the clients not receiving the notices will have to be disconnected with out warning.
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sneakyB (profile), 7 Oct 2010 @ 9:59am

This is not a PR stunt, as an ISP Free isn't perfect but they have a lot for them, including beeing against Hadopi from the start.
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PRMan, 7 Oct 2010 @ 10:00am

Re:
Will anyone notice? They typically refuse to speak English.
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Anonymous Coward, 7 Oct 2010 @ 10:02am

Not true, Free just wont send the emails (they are not required to) Free is only required to provide user information to HADOPI. HADOPI is perfectly free to send emails to the users after they use he costly process of data entry (or OCR) on the documents. Hopefully the documents were written in size 1 font and only provide emails in a broken up format (or the MD5 hash of the email to protect user privacy)

French ISP's are not stupid, most every ISP is trying to make HADOPI cost more then its worth to protect copyright.

I cant wait for a French ISP to have a fine for more then all the money in the world for simply refusing to follow HADOPI. Given the speed of French court, it would only take a few years for the fines to stack up that high before they go to court.
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Mike Masnick (profile), 7 Oct 2010 @ 10:09am

Re: Why it's not worse but better
Dear Mike, I think your last paragraph is mistaken. Please allow me to try and tell why. As it's French law, it is not easy to explain in English, but I'll do my best.

Aha! Very interesting. Thanks. I will update the post.
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jfgilbert (profile), 7 Oct 2010 @ 11:14am

Re: Question is whether they're obliged to disconnect.
They are not giving away free beer, but, at least, it seems that they stand on the side of free speech.
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TSO, 7 Oct 2010 @ 11:43am

> Internet subscribers **must have received** at a least one previous warning by paper mail.

Just mark the letters from HADOPI "addressee does not live here", and give them back to the postman. Problem solved: you have not received it.
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Kurata, 7 Oct 2010 @ 11:12pm

This is just rumors that I'm going to say but, it's rumored that Free, in another loophole, is doing the following : instead of sending typed text to the company in charge of HADOPI, it'd be handwriting the answers, thus slowing down the process AND preventing the automatic system to kick in, as it can't read handwritings.
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IronM@sk, 7 Oct 2010 @ 11:45pm

Re:
That would be awesome. In every driving game I have played online, the French are the dirtiest drivers I have ever encountered.
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george100, 8 Oct 2010 @ 2:09am

hahaha, great job FREE!! it's cool to see an ISP have the balls to do that, even if it looks like more something like a smart advertising…;
At all, the french gouvernement is far from controling the web.
Especially as, the must famous VPN comparator website: START-vpn ( http://www.start-vpn.com/ ) just announced a hudge increase of VPN services in France. More than 300 pourcents only on the french market…
Good luck Hadopi :-)
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Someone, 8 Oct 2010 @ 10:19am

Sound like a very profitable business model: Offer free and unlimited internet access specifically to illegal file sharers and charge HADOPI €1000 per email.
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A_Friend, 8 Oct 2010 @ 11:47am

Room for Improvement...
ROFL about the ingenuity of Free - but wait: There's even room for improvement!

Outsource the department responsible for answering HADOPI requests to India (or, even better China) to some company who can only communicate in "engrish" (which will p.o. the french authorities), answers all the request in illegible handwritten letters sent by standard mail (which will take 6-8 weeks for delivery) and voil�: A perfectly srewed process ;-)
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James, 16 Oct 2010 @ 8:06pm

The online application Free OCR allows transforming the contents of an image file in a text output format. Though Microsoft Word is not supported currently.
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RuniMac, 24 Oct 2010 @ 7:47pm

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Jacob, 11 Apr 2011 @ 2:33am

sounds interesting, thanks for sharing
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