Jeremie Zimmerman is co-founder of La Quadrature du Net, a civil liberties group focusing on promoting innovation, competition and fundamental freedoms in the online world.
He was speaking to Claire Davenport.
To read a shortened version of this interview, please click here.
You were successful in lobbying the Parliament and the Council to allow people accused of Internet piracy the right to a trial. What do you hope to achieve in the run-up to the third reading on the telecoms package?
This was a very difficult task and it took us a long time to convince Catherine Trauttman about the significance of this. At first we were a kind of whistleblower. We spotted that an amendment in the package was identical to the 'three-strike' approach in France, and we were told that we were being completely paranoid and were scaremongering.
But then we got a letter from the AACD, the main lobby of French cinema and the main proponents of three strikes in France, which confirmed our suspicions. For us this was a smoking gun: we alerted our colleagues across Europe, press released it and after a lot of media attention, it became the war against file-sharing.
France has just passed a controversial anti-piracy bill which allows a government agency to sanction people accused of illegal downloading. Why was there so much controversy surrounding this bill?
There has been a tremendously long process surrounding the draft bill, called Hadopi 2. After months of wrangling about the bill in the National Assembly and the Senate, it now sits with a commission mixte paritaire, made up seven members of the Senate and seven members of the National Assembly who will make the final call on Hadopi in the coming week.
This is like a thunderstorm, because nothing has been referred to the commission mixte paritaire since 1984, so it's a very strong sign of disagreement.
So what is wrong with Hadopi?
If you remove the right to due process, you base your ability to convict somebody on wholly unreliable evidence like IP addresses, which may or may not belong to the accused. Also you start with the principle that sharing is stealing, that consumers are thieves. The entertainment industry's argument against the right to a trial is that it is too time-consuming and expensive.
Do you know how much it would cost to set up a government agency to do the courts' job?
Yes, we have done some calculations. 16.7 million euros a year plus fees for identifying IP addresses, which would roughly run between 10-20 million euros a year. Add to that ISPs' costs to change their infrastructure to selectively disconnect people, which is estimated by a body from the Ministry of Industry to be 200 million euros. All of these costs are for nothing because they 'hope' that this policy will discourage people from sharing and they have not got any evidence that it will.
So will you be satisfied with the telecoms package if people accused of Internet piracy receive the right to a trial?
Not really. The vote for the third hearing is a very strong signal sent by the European Parliament that the fundamental freedoms and rights of citizens do matter, albeit ahead of an election. We hope that this signal will be confirmed in the third reading. But the problem is there are other elements in the telecoms package that raise enormous questions about competition, innovation and fundamental rights of freedom. Specifically, controlling the use of the Internet via network operators is very harmful to our fundamental freedom of expression and comparable to what is going on in Iran, for example, where a law forbids citizens from accessing certain sites.
Which elements are you referring to?
I am talking about Articles 20 and 21 in the Universal Services Directive. The amendments inserted into the Universal Services Directive concerned networking operators using network management techniques to block content or applications or prioritise or demote them according to their own will. The operators think if they make YouTube a bit slower, they could go to Google and say if you want YouTube to become faster, real speed, it will cost you because we have to cover our infrastructural costs.
Another example: in France on your mobile phone you cannot use Skype because it would not be profitable for the operators. This is purely anti-competitive and anti-innovation because if you invent the new Skype, let's say, you will have to go through all the operators in Europe for the authorisation to go through the network. So if you are a start-up, two guys in a garage, you just cannot do it.
Are you sure this is an accurate interpretation of those articles?
This is the way it is worded in the directive right now – limitation to content services and applications shall be notified in the contract and modification to content services and applications shall be notified to the user. Therefore it would be acceptable if for example one day you received an email saying you don't have access to eBay anymore, but here is our new service for online auctions…and at a price.
So what will happen to the Internet if these articles make it into the package?
The telecoms package as it stands will allow the operators a foot into the media content market and will allow them to control the whole infrastructure and it will not be the Internet. It will be cable 2.0. This is not what we want. This pressure will also extend to innovators whose scope for innovation will be severely limited by a recentralisation of the Internet on behalf of the operators.
What has been the response to your concerns about those articles so far?
Malcolm Harbour told me that these articles regarding the limitation to content services and applications were perfectly legitimate, and if you don't like it you just go to another operator. But it's not that easy. For example in France three operators have the exact same policy and have been in agreement on this for years.
So what is Internet piracy according to La Quadrature?
Piracy is just a buzzword, an intimidation technique to discourage people from sharing. Copyright was an industry conception to protect authors from editors and producers and to allow producers to have a return on their investments on infrastructure to make copies of intellectual property, like for example a printing press. Copyright was a commercial regulation between the industry and actors and was never meant to be turned against the public which is wrong. What the public does in the private sphere is by definition in the private sphere.
So by that definition, file-sharing by you and me is OK?
Yes, as long as it is not done in order to make a profit. Releasing work without the author's consent, like for example taking a camera into the cinema to record a movie falls under counterfeit. But 90% of the movies that make it to the Internet come from the studios. So I think copyright is sick right now because the industry should go after people under their own noses and not target members of the public and their best customers.
Which file-sharing applications do you think strike a balance then between protecting copyright and serving the end-user's rights?
Any model that is based on something other than selling copies is a good business model, like Spotify or Pandora, because the whole model of the entertainment industry is based on the production, on the distribution and the selling of copies. The Internet is the biggest copy machine ever invented. So the logic goes that copies for email and websites and videos are good, but for mp3s it is bad. Tying to make a distinction between what is a good copy and what is a bad copy is the most absurd crusade in modern history. And it is bound to fail.
So is anybody in Europe getting copyright law right at the moment?
Good question. The German Greens followed by the Left party had in their election programme a Kulturflatrate that is similar to what we pushed for in France. It basically legalises downloads. The user pays five euros a month which is redistributed to the rightsholders. It is a transparent way of seeing what is copied on a network.
Do you have any political ambitions, like MEP Christian Engström, the founder of Sweden's Pirate Party, a party lobbying against software patents?
[Choking] No, not at all. We are politically neutral, which allows us to negotiate with the left and with the right wing. When we had victories in the past, it was always due to a trans-political approach. To advance our ideas we need to penetrate all parties at once. I think the strategy of Christian Engström's Pirate Party is interesting because they are doing both: they have a very strong civil society movement in Sweden and at the same time they have entered the European Parliament. So they have a strategy of encirclement, which is good for them.
What will you do if your lobbying does not yield any results in this third hearing?
You mean if we fail? I am used to failure. Our main objective is to push our ideas forward. It doesn't really matter what is in this or that bit of text. The text is a vector for showing what can be done and when we have done something wrong. Sometimes people make the wrong choices and perhaps this parliament will also make a bad decision. Whatever happens, we are here to trigger the debate. The debate might be even more important than the outcome of the text itself.