French ISP Vows to Appeal Three-Strikes Emails

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Free founder Xavier Niel says “we will challenge this new decree” requiring that it send warning letters to customers accused of illegal file-sharing on behalf of the govt.

The French ISP Free continues to disagree with the govt’s requirement that it send “three-strikes” warning letters to its customers as part of the “Creation and Internet” law, the controversial “three-strikes” measure to fight P2P that was formally passed last September.

It cites Article L331-25 of the Code of Intellectual Property which says that warning letters shall be submitted by the Commission for the Protection of Rights “under its seal and on its behalf, electronically and “through” ISPs.

Free says the inclusion of the word “through” meant exactly that, and that if anything the govt needs to setup a secure SMTP server within the ISP to contact its customers on their own.

After initially refusing to comply, it eventually relented after the Minister of Culture, Frederic Mitterand, lived up to his promise to issue a decree amending the Code of Intellectual Property so that it clearly states that ISPs are indeed “required to submit” warning letters to subscribers on the govt’s behalf.

The penalty for noncompliance is 1,500 euros ($2094 USD) per IP address.

Free had reportedly been preparing to challenge the decree on the grounds that the regulatory authority for electronic communications and postal services was not consulted as required by law, but that plan was apparently put on hold – at least until now.

Although Free began sending out “three-strikes” warning letters yesterday, it has announced that it plans to challenge the decree before the country’s State Council.

“We will challenge this new decree, which seems illegal,” says Xavier Niel, who created Free back in 1999. “Unlike other ISPs, we will apply the law strictly, but only the law. Our position was neither marketing or financial.”

His comments about “unlike other ISPs” are likely a swipe at ISPs like Bouygues and Numericable which have seemed all to eager to comply with govt demands, even if they aren’t spelled out in law. Perhaps the name “Free” is more apt than we think.

Though agreeing that “creators must be compensated for their work,” Niel also takes a swipe at the “Creation and Internet” law itself, arguing that it’s a “bad law that does not solve anything, which is easily circumvented and does not take into account the evolution of the form taken by piracy.”

This was exemplified earlier this year when it was reported that in the face of the new law piracy had become a “favorite sport” among French youth.

Niel predicts it will take several months before the decree is nullified. Too bad we can’t say the same for the “Creation and Internet” law.

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