Fundamental Rights in the EU maintained

Last September, the European Commission ratified Amendment 138 in part to preempt France’s then soon-to-be enacted three-strike laws which would be applicable to repeat online copyright infringers. The Amendment provided that “no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11…” The cited Article 11 outlines the fundamental rights of freedom of expression and of the media. Among other things, the amendment makes it so that the mere tacking together of three minor online infringements will not lead to a permanent blacklist from the Internet, unless a judicial authority rules such.

Today, April 21, 2009, ITRE (a committee of the European Parliament) voted on whether the amendment should remain in place. Nicolas Sarkozy, the President of France, has been determined to put his three-strike online infringement laws in place; also known as HADOPI. Because of this, Sarkozy, and others with like mindsets sought to either have the amendment revised or retracted.  This would allow member countries of the EU to enact three-strike laws, and otherwise abridge online users’ rights. ITRE voted 40-4 to keep the amendment. Further confirmation of the vote is needed in the plenary of European Parliament.

Without the Amendment, the legislatures would be free to keep blacklists of those who use the Internet in any way proscribed by the legislature. Broadband providers would also be able to decide what websites their clients may look at by creating packages. Depending on what clients are willing to pay, they will be given access only to certain websites or areas of the WWW.

Essentially, broadband providers may become like cell-phone service providers. The websites that are part of a broadband provider’s ‘package’ will be incorporated into the price of service, while additional sites outside of the ‘package’ will require payment of a premium before a user may access them. Think of how expensive text messages are when you do not pay for them as part of your cell phone plan. This may be expensive enough to deter visitation of smaller sites outside of a subscriber’s ‘package.’

File-sharing implications of anything less than a verbatim reaffirmation of Amendment 138? If a broadband provider puts in the contract that peer-to-peer applications, torrent trackers, or other file-sharing devices are outside of the terms of service, then the use of such a device could be considered one of Sarkozy’s strikes. If the three-strike laws are strictly applied, then one could be blacklisted from a service provider, or from the Internet altogether, for downloading three different versions of the open-source software program Linux. With fewer distribution channels, open-source software and other free digital media will suffer.copyme_bbg2

In France, a change or repudiation of the amendment could mean that minor copyright infringers are treated like minor drug offenders in the US – given disproportionate sentences merely because of the number of crimes they commit rather than the substance of the crimes. Hopefully today the Amendment will be reaffirmed and the Internet in Europe will not abridge users’ rights.

For now, the amendment seems to be safe, and so do the rights of Europeans on the web. The blog of an affilliate of the Swedish Pirate party says, “Vi von” (we won), then goes on to encourage the sending of flowers to Catherine Trautmann (a member of European Parliament who seems to have voted for the amendment) and the sharing of files.

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