Taking a cue from the trendsetters at Stanford University, the President of France is backing an industrywide agreement between the creative community and French ISPs that would drop DRM from French-language repertoire sold digitally in France in return for ISPs cutting off Internet access to heavy downloaders on illegal p2p networks accessed through all-you-can-eat Internet accounts. 

This important decision continues and extends the world wide trend toward dealing with Internet piracy by cutting off access to abusers.  While there is no silver bullet that will stop the behavior in its tracks, making Internet access very difficult may well be one of the thousand cuts.

For those who follow anti-piracy policy in France, President Sarkozy’s plan is a striking turnaround.  Two years ago almost to the day, a bill drafted by the far Left snuck through the National Assembly (France’s lower house of its legislative branch) during the 2005 Christmas recess that would have essentially codified the EFF/Terry Fisher program by legalizing p2p downloading.  Due to a quirk of parliamentary procedure (also known as stupid lawyer tricks), the bill “passed” the National Assembly with fewer than 10% of its members present during a legislative recess and the works of various anti-copyright law professors being read into the record.  That bill was, of course, resoundingly defeated when it came for a vote of the full body after the National Assembly reconvened after the Christmas family holiday.

While the details of President Sarkozy’s plan have yet to be released, his stated intention is to "underline his attachment to culture but also his wish to see artists live from their work and have their rights respected on new platforms".  Is this policy goal really so hard to understand?

President Sarkozy’s support for the creative community is remarkable for a couple reasons.  First, the leader of a major world economy is not ignoring the gutting of his country’s artists and is standing foursquare with the creative community against "business models…[whose] principal object was use of [Internet accounts] to download copyrighted works" to paraphrase one court.  That’s more than you can say for any other world leader.  So far.

But neither is President Sarkozy cowed by those who would have the government not just legalize but also encourage the attack on his country’s rich cultural heritage from illegal p2p file bartering.  Starting in the recent past, France is developing a significant literature rejecting American solutions, such as the wonderful book Google and the Myth of Universal Knowledge by Jean-Noël Jeanneney, the former president of the Bibliotèque nationale de France (“I wouldn’t want to see—although I’m amused by the thought—the text of Saint-Exupéry’s Le Petit prince accompanied by an ad for a sheep merchant”)l

It’s pretty obvious really—an ISP may not be able to tell exactly what is being downloaded or uploaded, but they can tell fairly easily that a lot of it is going on.  Considering that the overwhelming view is that at least 50% of Internet traffic is taken up with illegal file bartering, the scope of the problem is clear.  If a user has a legitimate reason to download large quantities, then they can come forward and demonstrate their needs.  Until then, it is well to remember that the Internet was not developed and does not exist for the benefit of illegal activity, any more than the postal service or telephone lines are supported for illegal uses.

One would have to imagine that the levels of illegal activity are getting so high (and probably costly in terms of bandwidth charges to ISPs) that the next step beyond cutting off Internet access is metered pricing.  While passing the costs of illegal activity through to be paid by those engaging in the illegality is an attractive proposition, it will be unattractive to deny all consumers in France the benefit of all-you-can-eat pricing due to lawbreaking by even a large number of bad actors.

This is why an independent commission in France as well as President Sarkozy have determined that there needs to be a national law that applies to all ISPs.  Otherwise there would no doubt be some dedicated followers of the anti-copyright professoriate who would rather find ways to violate the law rather than comply with it.  As the independent commission’s chairman wrote: "It is a little like . . . big store chains putting out free stocks of stolen CDs and DVDs to attract new customers into their shops".

Expect to hear the answer to the unasked question from the anti-copyright crowd and their amen chorus:  Cutting off Internet access won’t stop piracy.  No kidding.  No one ever said it would “stop” piracy.  Unlike many other countries, France has a long tradition of protecting its creators, so if there’s anything unusual about President Sarkozy’s policy, it’s that it took so long.  Jean Renoir is rolling in his grave.