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French Three-Strikes Law Ruled Unconstitutional

timothy posted more than 5 years ago | from the note-that's-the-french-constitution dept.

The Courts 195

An anonymous reader was one of several to write with this news: "The French 'Conseil Constitutionnel' just ruled that the recently voted 'Hadopi' law, which enforces a 'three strikes and you're out' system, is actually unconstitutional [article in French; here's an English-language article at Ars]. They mainly make two points: 1) They argue that removing Internet access is equivalent to hindering a person's freedom of speech, and as such can only be decided by appointed judges. This removes all punitive power from the administrative body supposed to enforce the three-strikes rule; all it can do now is warn you that 'they're watching you.' 2) When illegal filesharing is detected, users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence."

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Good News For Once (5, Interesting)

alain94040 (785132) | more than 5 years ago | (#28282615)

The French "Conseil Constitutionnel" is a joke compared to the US Supreme Court, but for once they made the right decision.

At a minimum, the right to defend yourself and face your accuser was sorely lacking from the "3-strike" legislation. The French legal system already has the equivalent of the US small claims court, so there was no reason for the ISPs to become judges.

The other good news is that the court is basing its decision on the fact that a right to communication (speech, really, if you translate into US constitution lingo) includes the right to access the Internet. That's pretty cool potentially!

--
pour les developpeurs qui n'habitent pas dans la Silicon Valley: FairSoftware [fairsoftware.net]

Re:Good News For Once (1, Funny)

interkin3tic (1469267) | more than 5 years ago | (#28282685)

The French "Conseil Constitutionnel" is a joke compared to the US Supreme Court

Fighting urge to make jokes about the French surrendering...

i lost that fight (1)

conspirator57 (1123519) | more than 5 years ago | (#28283093)

and the one against the urge to joke about Napoleonic justice.

Since when has France moved away from the "guilty until proven innocent" stance?

Re:Good News For Once (5, Informative)

bedonnant (958404) | more than 5 years ago | (#28282707)

The conseil constitutionnel is not a joke compared to the US Supreme Court, it's just something completely different. It validates or invalidates laws passed by parliement, when the supreme court is a judicial body, ruling over a court case.

Re:Good News For Once (0)

Anonymous Coward | more than 5 years ago | (#28282801)

Wrong, the United States Supreme Court can review and declare a law unconstitutional. As for "ruling over a court case" those court cases set precedent for future interactions with that law.

Re:Good News For Once (5, Informative)

mrex (25183) | more than 5 years ago | (#28282865)

Wrong, the United States Supreme Court can review and declare a law unconstitutional.

Only in connection with a court case brought by an entitled petitioner.

Re:Good News For Once (5, Informative)

Chabo (880571) | more than 5 years ago | (#28282909)

But SCOTUS can only rule a law unconstitutional based on a court case. Someone affected by the law must sue the appropriate government entity before any court can rule on it.

For example, in the original case that led to D.C. v Heller [wikipedia.org] from last year, the plaintiffs had to have applied for a firearm permit under the current system, and been denied. Then the denial would be the basis of the case.

Re:Good News For Once (0)

sumdumass (711423) | more than 5 years ago | (#28283131)

To be fair, if a law doesn't effect you, then it doesn't effect you.

Someone has to be effected by a law in order to show the application is unjust or contrary to other laws or unconstitutional. Otherwise there is no effect of the law and no reasons to get rid of it.

Re:Good News For Once (4, Insightful)

SydShamino (547793) | more than 5 years ago | (#28283269)

Yeah, unfortunately our three branches system lacks an entity charged with removing laws with no effect.

The courts won't do it. Congress doesn't care. The executive likes them because they can threaten people with them, or ruin someone's life with them, then drop the case before it gets to the court and is thrown out.

A fourth body, who job it was to review all laws, and propose a list each year (based on criteria like "law on the books for a decade with no convictions based on it" or similar) that would be automatically stripped from US code unless congress and the president specifically re-approved and re-signed them.

That should be one of congress's jobs, but they have no interest in spending time on "old business".

Re:Good News For Once (1)

RKThoadan (89437) | more than 5 years ago | (#28283573)

So Gomez Adams was right! You need meetings dedicated to "old business" and meetings dedicated to "new business". And this is Old Business!

Re:Good News For Once (1)

selven (1556643) | more than 5 years ago | (#28283803)

I like this. Have a group of people look through every law in existence and see if it can be justifiably kept, removing it if it can't. As a bonus, you could also let these people decide the executive branch's salaries, so they would be careful not to inundate them with too much work to go through...

Re:Good News For Once (3, Insightful)

Ornedan (1093745) | more than 5 years ago | (#28283329)

The problem with that attitude is that by the time you can start the process of removing a bad law, it's already done damage. I'd prefer the approach where the stupidity isn't allowed to happen in the first place - no-one gets hurt and less resources are spent.

Also, if a law has no effect, then IMO it should be gotten rid of. It will still cause unnecessary overhead by having to be checked for effect in potentially related cases.

Re:Good News For Once (2, Insightful)

sumdumass (711423) | more than 5 years ago | (#28283833)

The problem with that attitude is that by the time you can start the process of removing a bad law, it's already done damage. I'd prefer the approach where the stupidity isn't allowed to happen in the first place - no-one gets hurt and less resources are spent.

This isn't really a problem is the government would stick to their roles and follow the constitution. The constitution says they have to swear an oath to uphold and protect it as well as making it clear that all laws have to be in accordance with it. I suspect the founders assumed that the people making laws would have the limits placed on the constitution and that they would only do what they were allowed to do by the constitution instead of ignoring it or claiming it's alive and only means what they want it to mean.

Anyways, the system was already built in but we are no longer following the system close enough.

Also, if a law has no effect, then IMO it should be gotten rid of. It will still cause unnecessary overhead by having to be checked for effect in potentially related cases.

I agree. Currently outdated and useless laws end up on the books because the problem it was designed to address either isn't there anymore or because another law addresses it more effectivly. The end result is often someone claiming to be innocent and ending up going to court with 15 charges over the same act because the prosecutor hopes the jury will get frustrated and pick on. It's unfair to a proper defense and unfair to the truly innocent.

Re:Good News For Once (1)

EvanED (569694) | more than 5 years ago | (#28284539)

This isn't really a problem is the government would stick to their roles and follow the constitution.

That's like saying "this isn't really a problem if everyone in the country would agree."

First, reasonable people can disagree about what the Constitution says. It isn't exactly lacking in vague wording.

Second, just because the Constitution doesn't have a prohibition on a particular type of law doesn't mean it should still be allowed, at least IMO. That people would interpret the Bill of Rights as an exclusive list is why some founding fathers didn't WANT to have it. For instance, I feel that the result of Roe v Wade was the correct decision even though there's nothing in the Constitution explicitly to prevent anti-abortion laws.

Re:Good News For Once (1)

Chabo (880571) | more than 5 years ago | (#28283343)

If you don't want to break even an unjust law, then it does affect you.

Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned. This is essentially what happened with the famous Scopes Trial [wikipedia.org] . John Scopes intentionally broke the law by teaching evolution, for the purpose of testing the law in court.

A small grammar correction: every use of "effect" in your post should be "affect", except the last one.

Re:Good News For Once (2, Interesting)

sumdumass (711423) | more than 5 years ago | (#28283747)

Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned. This is essentially what happened with the famous Scopes Trial. John Scopes intentionally broke the law by teaching evolution, for the purpose of testing the law in court.

It depends on the law and how it is written. A speech law forbiding someone who is normally doing something from doing it, would have cause for challenge without becoming in violation of it. It's when it isn't normally done that you need to break the law in order to get standing. Or in other words, you have to show that the law concerns you personally somehow. Often this is after a violation but isn't required to be.

A case in point, take the warrant-less wiretapping. Some think it was/is unconstitutional. You didn't have to violate the law to challenge it, you only had to show it affected you.

Re:Good News For Once (4, Informative)

ppanon (16583) | more than 5 years ago | (#28284577)

A case in point, take the warrant-less wiretapping. Some think it was/is unconstitutional. You didn't have to violate the law to challenge it, you only had to show it affected you.

Except that's exactly the opposite of what did happen, isn't it? People who tried to challenge the law had their case thrown out because they couldn't prove that they had been subject to a warrantless wiretap. They were in a catch-22 because the government wouldn't confirm that the plaintiffs had been wiretapped, refusing subpoenas from the plaintiffs on national security grounds, and the court wouldn't give the plaintiffs standing unless they could prove it had happened to them.

And that means you're taking a risk. (4, Informative)

Ungrounded Lightning (62228) | more than 5 years ago | (#28283773)

Let's say you wanted a "speech code" law overturned. The only way to do that, other than lobbying for the legislature to repeal the law, is to break the law by speaking in an illegal manner, and getting arrested. At this time, you now have recourse to try to get the law overturned.

And that puts you at risk: You have to carry through and win - which may take years and millions of dollars. Unless you win (and UNTIL you win) your rights are reduced because of the accusation of lawbreaking and the ongoing legal proceeding. And if you lose (or drop out) you also have a penalty applied for your "criminal behavior" in breaking the law in order to obtain the standing to argue for its unconstitutionality.

Not only that, but you have to take it all the way to the supreme court to make it stick nationally (or you and others have to take it to the appellate level in all of the federal circuits). And you have to LOSE at the trial level (and either lose at the appellate level or win but have the prosecutor appeal your win) to get to the supremes. And you have to have the prosecutor keep pushing rather than throw in the towel on your PARTICULAR case - something he may not do if you're fighting back and have a good point. And at the appellate level it may take two passes - once with a three-judge subset, a second time with the full set. Also: Once you've lost at the appellate level there's no guarantee that the Supremes will agree to hear the case - and they usually won't unless there are divergent rulings on two near-identical cases in two appellate districts.

To get through that process you need some people typically more expert in law than you to think that you're wrong. So that means your case has to be iffy. Which means you might not win even if you navigate the maze correctly and the Supremes deign to spend time on you. You're playing "court roulette" with only one empty chamber in the revolver.

I think this is one piece of politics/law where the French have a better idea.

Re:And that means you're taking a risk. (-1)

Anonymous Coward | more than 5 years ago | (#28284023)

As the saying goes:

"Freedom isn't Free."

It takes someone standing up and defending freedom. Sometimes that is on a battlefield with a gun. Sometimes its in a jail cell waiting for a court date.

Re:Good News For Once (0)

Anonymous Coward | more than 5 years ago | (#28283593)

AFFECT GOD DAMMIT

Re:Good News For Once (1, Informative)

Anonymous Coward | more than 5 years ago | (#28283703)

To be fair, if a law doesn't effect you, then it doesn't effect you.

I find that very few people are caused by laws, in genral. I suppose that one could argue that an over-turn of Roe vs Wade could effect people, but is much more likely for a law to affect someone.

Re:Good News For Once (1)

sumdumass (711423) | more than 5 years ago | (#28284487)

I find that very few people are caused by laws, in genral. I suppose that one could argue that an over-turn of Roe vs Wade could effect people, but is much more likely for a law to affect someone.

You don't think many people are force to change their ways because of laws? Effect also means bring about. If the law doesn't bring about changes to your freedom, then it doesn't bring about changes to your freedoms.

Re:Good News For Once (1)

elgaard (81259) | more than 5 years ago | (#28283965)

Depends what you mean by affected.

I think that the data retention laws is a violation of my privacy, and therefore effect me.
But the courts do not see it that way.

I also think all the internetfilters is a violation of freedom of speech.
That also will not be easy to take to court.

Re:Good News For Once (1)

sumdumass (711423) | more than 5 years ago | (#28284527)

Just because the court doesn't see it the same as you doesn't mean the system is broke. It more likely you don't understand your free speech rights or rights to privacy.

Re:Good News For Once (1)

conspirator57 (1123519) | more than 5 years ago | (#28284039)

Except that the currently accepted legal definition of affect for purposes of establishing standing to sue is very weak compared to the reality of the affect. For example, plaintiff in the gun rights case in DC was only able to establish standing to sue because he was required to have a gun at his job as a security guard in DC, but couldn't take it home because of the DC ban. That was the "damage". Several cases had been dismissed before his where the damage was the lack of freedom or personal risk of being unarmed in a dangerous city.

Another example is the case against TSA/AG brought Gilmore wherein the case was dismissed because Gilmore "had other travel options available to him" thus he could not establish "damage" and thus had no standing to sue.
http://www.papersplease.org/gilmore/facts.html [papersplease.org]

Dammit! (0)

Anonymous Coward | more than 5 years ago | (#28284089)

Affect. AFFECT. Affect affect affect.

For the love of Webster, a-ffect is the verb meaning "to modify or change." It is not a noun. E-ffect is usually a noun, but can mean "to produce" when used as a verb - "criminals effect crime" or "war effects suffering." This is not difficult!

Re:Good News For Once (5, Informative)

KDR_11k (778916) | more than 5 years ago | (#28282935)

France uses civil law which means a court's decision is not a law, the US uses common law so deciding a court case there can very well make a new law. So in the US being a court implies being able to make or remove laws while in France that's a separate set of permissions.

Re:Good News For Once (1)

harryandthehenderson (1559721) | more than 5 years ago | (#28283081)

Wrong, the United States Supreme Court can review and declare a law unconstitutional.

Only when it's through the appeal of a court case. You know, sort of what the GP said.

Re:Good News For Once (1)

ShadowRangerRIT (1301549) | more than 5 years ago | (#28283533)

...those [U.S. Supreme Court] cases set precedent for future interactions with that law.

Which is actually a significant difference from the French model of civil law [wikipedia.org] . French civil law lacks the concept of precedent, at least in theory, while English common law (from which the U.S. system draws) embraces it. For example, the concept of a corporation as a "person" is a product of centuries(?) old common law, despite no legislation dictating it. In France, that result would have to be explicitly legislated.

Re:Good News For Once (0)

Anonymous Coward | more than 5 years ago | (#28283731)

"In France that result would have to be explicitly legislated"

In fact, it has, and for ages. There's the concept of "Personne morale" vs. "Personne physique", the former being anything not human but endowed with "person" characteristics (right to contract etc.), whereas the latter is you and me.

Re:Good News For Once (3, Interesting)

ShadowRangerRIT (1301549) | more than 5 years ago | (#28284173)

Exactly.

I don't really know which system I prefer. The French system evaluating laws without a court challenge is, in my opinion, better than the U.S. approach of requiring a court challenge, since a court challenge requires a lot of effort by a single person for marginal personal benefit. "Squeaky wheel gets the grease" is not a cliché I like to see when it comes to the law. On the other hand, there are some cases where the ability of justices to effectively dictate freedoms and rights without worrying about the next election allow for progress that might otherwise not accomplished by the legislature in a reasonable period of time. Many of the decisions of the Warren Court not only predated legislation, but may have pushed Congress into action it might otherwise have avoided.

One significant advantage to civil law is the comparative simplicity. Yes, the laws tend to be more extensive, but they are theoretically less ambiguous, easier to reference, etc. The sheer volume of training and research required to be a lawyer in a common law system means that talented people are taken from productive work to apply the law, and the costs are commensurately higher without the long term benefits they might create in a research, engineering or even artistic discipline. By contrast, lawyers in a civil law system, while still requiring a certain minimum ability, need not be the best and brightest the country has to offer, and constitute a lower "overhead" cost to maintain the legal system.

Re:Good News For Once (0)

JordanL (886154) | more than 5 years ago | (#28283463)

That's actually the PRIMARY function for SCOTUS as well, the only difference being that the US Supreme Court only rules on laws for which the Federal Government is sued by a group of or a single US Citizen.

Re:Good News For Once (0)

Anonymous Coward | more than 5 years ago | (#28284143)

Which means if Congress had passed this law, it would be years before it ever came before SCOTUS, after getting through all the layers of appeals.

Re:Good News For Once (1)

Yvanhoe (564877) | more than 5 years ago | (#28284191)

The equivalent of the US Supreme Court would be the European Court for Human Rights. EU still doesn't have a constitution and can't comment the constitutionality of national laws, but they can judge whether a practice (be it a law, an habit or a single case) is contrary to the declaration of rights every EU countries accepted.

Re:Good News For Once (5, Insightful)

TheGratefulNet (143330) | more than 5 years ago | (#28282709)

lets hope that (the world) takes this further and embraces the right to encrypted speech as well as free speech.

you know what I'm referring to. those that listen in, just because they're too bored or unable to find the real 'bad guys'.

if internet access is a 'right' then the ability to communicate without some 3rd party listening in should also be a right.

Re:Good News For Once (1)

Dann25 (210278) | more than 5 years ago | (#28282901)

I dont necessarily disagree with your point but I dont completely follow the logic of your third line

Re:Good News For Once (0)

Anonymous Coward | more than 5 years ago | (#28283291)

Me neither... If you take just that line.

However, as you have a right to privacy* it is easy to claim that it applies to all your other rights. IE: Right to privacy + Right to use internet = Right to use internet without third party listening.

* France has committed to the UN human rights declaration which includes Article 12:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Re:Good News For Once (2, Funny)

Hurricane78 (562437) | more than 5 years ago | (#28283415)

An usual, when someone does not mention special cases (eg the encrypted access), the global version (all kinds of access) is assumed.

Besides, who says that "garbage data" is no "speech", when accessing the Internet is part of the freedom of speech?

So let me freely say,

-----BEGIN PGP MESSAGE-----
Version: GnuPG v2.0.11 (GNU/Linux)

(Filter error: That's an awful long string of letters there.)
-----END PGP MESSAGE-----

Re:Good News For Once (5, Informative)

Le T800 (1137303) | more than 5 years ago | (#28282723)

To clarify a bit, the "Conseil Constitutionnel" in France is supposed to check that new laws respect the principles of the French Constitution, which is supposed to respect the principles of the "Men and Citizens's Right Declaration" from 1789.
From now Internet in France is recongnized as a fundamental right, associated to the right to communicate freely.

Re:Good News For Once (1)

Arthur B. (806360) | more than 5 years ago | (#28283375)

The other good news is that the court is basing its decision on the fact that a right to communication (speech, really, if you translate into US constitution lingo) includes the right to access the Internet. That's pretty cool potentially!

It's more likely to end up as a nasty positive right than as a defense of free speech.

Re:Good News For Once (0)

Anonymous Coward | more than 5 years ago | (#28284553)

The free speech bit is because the internet is a MEDIA of exchange of that speech. Not that Internet access is a right.

right again (4, Interesting)

CarpetShark (865376) | more than 5 years ago | (#28282631)

Excellent. Yet more proof that p2p users have the weight of ethics on their side.

Re:right again (5, Funny)

sakdoctor (1087155) | more than 5 years ago | (#28282667)

Not all p2p users are ethical. Some don't seed.

Re:right again (2, Insightful)

immakiku (777365) | more than 5 years ago | (#28282705)

No. It's proof they have the weight of the constitution. That's different from ethics. Don't let this delude you into thinking that any and all forms of p2p are ethical.

Re:right again (0, Troll)

snl2587 (1177409) | more than 5 years ago | (#28282835)

Don't let this delude you into thinking that any and all forms of p2p are ethical.

Any forms? So, according to you, I'm unethical for using apt-p2p for my Ubuntu updates?

Re:right again (1)

johnsonav (1098915) | more than 5 years ago | (#28282999)

Any forms? So, according to you, I'm unethical for using apt-p2p for my Ubuntu updates?

I'm pretty sure that's not what he's saying, at all. He's simply pointing out that just because something is legal, does not necessarily make it ethical. Basically, whether or not something is legal, has little, if anything, to do with whether it is ethical.

apt-p2p'ing is ethical whether it's legal or not.

Re:right again (1)

diskis (221264) | more than 5 years ago | (#28283181)

> apt-p2p'ing is ethical whether it's legal or not.

Ooh.. you're making a bold claim there. If you're on a shared connection, which you are if you have residental cable/DSL, your apt-p2p:ing causes harm to your neighbour's bandwidth. Sure, the fault is at the ISP for oversubscribing lines, but when you are aware of that fact, wouldn't your apt-p2p:ing then be unethical?

I know that this is splitting hairs, but you simply can't go claim something is ethical like that without thinking. Now, I haven't really figured out who decides what is ethical or not, but I'm pretty sure it's not you.

Re:right again (1)

johnsonav (1098915) | more than 5 years ago | (#28283337)

Ooh.. you're making a bold claim there.

Yeah. It is a little more broad than I intended.

Now, I haven't really figured out who decides what is ethical or not, but I'm pretty sure it's not you.

Well... Yeah, I do decide what is ethical, for me. So does everyone else. Even if there were some sort of oracle which could tell me the ethical thing to do, I'd have to make the choice to act upon it, which would require some sort of meta-ethics. Those meta-ethics couldn't come from the oracle (because I'm still trying to decide if I should listen to it at all); they are internal to myself. So, yeah, ultimately, I decide what is ethical, for me. And, you for you.

Re:right again (1)

SydShamino (547793) | more than 5 years ago | (#28283363)

By your logic using any bandwidth harms by neighbor's bandwidth, and thus any internet use is unethical. That argument is on its face nonsense, and thus your reasoning is as well.

It was unethical for the ISP to oversubscribe their lines. I do not know if my neighbors have internet access from the same ISP or not; it is not unethical in and of itself to use a product I've purchased. How I'm using it (in this case, meaning the content I send or receive) might matter, but merely using the bandwidth does not.

Re:right again (1)

diskis (221264) | more than 5 years ago | (#28283935)

Strawman alert!

Nope, I didn't say that any usage is unethical. Compare this to a party, where the host has provided a piece of cake for everyone. It's not polite to gobble up half the cake when there are lots of people to share. We can of course argue that host (ISP) is not a good host for not providing all the cake (bandwidth) you can eat.

Same with ISPs, they provide enough bandwidth for basic usage, but if you are going to serve out half of Ubuntu's updates, it's polite to pay for a pipe that is designed for actual hosting.

Re:right again (1)

MaskedSlacker (911878) | more than 5 years ago | (#28284297)

Reading non-comprehension alert!

Your argument is bullshytt. If the ISP sells me a 'Unlimited Internet access' it cannot be unethical of me to make unlimited use of it when any externalities result from the ISP's fraud (oversubscribing). The ISP isn't offering my neighborhood a fixed amount of bandwidth (that is what they are delivering, but it is NOT what they are trying to sell).

Your cake analogy would be more accurate if the host said "Eat all the cake you want, I've got tons of it in the freezer." Then, when the first cake is gone, the host just shrugs and says "No more, there isn't any in the freezer." The fault lies not with the cake-eater, but with the host.

Re:right again (2, Informative)

gnick (1211984) | more than 5 years ago | (#28283075)

You're deliberately mis-quoting. You posted "Any and all", but disputed "any". Yes, there are legitimate forms of p2p. There are also unethical forms of p2p. As GP said, not ALL forms are ethical.

Karma bonus foregone, 'cuz I'm just correcting a dumb-ass, not contributing anything useful.

Re:right again (0)

Anonymous Coward | more than 5 years ago | (#28283325)

Any forms? So, according to you, I'm unethical for using apt-p2p for my Ubuntu updates?

No, but according to me you are unsually bad at comprehending English sentences.

According to him, someone who thinks "any and all forms of p2p are ethical" may be deluded. It does not follow that he believes, or in any way implies, that all forms of ptp are unethical. Understand the difference? No? Read it again, slowly.

ANY AND ALL ARE... maybe deluded

SOME ARE... not in any way implied to be deluded

Still not got it? Maybe you know a native speaker of English who could help you out...?

Re:right again (1)

immakiku (777365) | more than 5 years ago | (#28284109)

Wow my first Slashdot troll in years of being a member.

I have to admit, if I didn't have the word "all" in there, this is easy misinterpret. It's my fault for using the word "any" for emphasis.

Why? To be fair, if I had said "deluded to think any P2P is ethical", it can be ambiguous. It can be interpreted that "thinking there exists an ethical form of P2P is delusional".

On the other hand I used the word "are", which to me implies that "any" in this case is interchangeable with "all". And it should convey to the reader that I meant, "thinking all forms of P2P are ethical is delusional".

So grammatically, you're not completely off-base. But comon... who with any grain of common sense would a) have meant to post #1 and 2) have interpreted my words to have meant #1?

Re:right again (1)

MaskedSlacker (911878) | more than 5 years ago | (#28284349)

Reading comprehension fail!

"ANY AND ALL" is an idiomatic phrase in English which loosely means "EVERY"

"ANY AND ALL" \approx "EVERY"

Don't let this delude you into thinking that EVERY form of p2p is ethical.

Get it now?

Re:right again (1)

Dragonslicer (991472) | more than 5 years ago | (#28284247)

Yet more proof that p2p users have the weight of ethics on their side.

Er, no. This has nothing to do with a person who is illegally downloading music/movies/etc. being ethical in any way, only that such a person should be treated the same way as anyone else accused of a crime, i.e. they are assumed to be innocent until they are found guilty by a court, and only a court can remove their rights upon finding them guilty.

pretty good week for people (4, Insightful)

Dan667 (564390) | more than 5 years ago | (#28282639)

With this and the Pirate Party winning and EU seat, great news. Bad week if you are trying to force your failing business model to stay relevant like the RIAA (Sony, Warner Bros, Universal, and EMI).

Re:pretty good week for people (1)

interkin3tic (1469267) | more than 5 years ago | (#28282743)

Bad week if you are trying to force your failing business model to stay relevant like the RIAA

I don't know, my "I'll trade you a handmade spear for that hamburger" buisiness is actually doing much better this week.

Sorry (4, Insightful)

whisper_jeff (680366) | more than 5 years ago | (#28282673)

Sorry Big Media Companies (tm), find another (legal) way to protect your dying business model. Or, better yet, adapt to the new reality...

Court's self interest (3, Insightful)

javacowboy (222023) | more than 5 years ago | (#28282677)

It sort of makes sense, when you think about it. Why should the courts cede power to a non-judicial "administrative body" to rule against people. Stands to reason the courts would like a monopoly on those types of judgements.

Re:Court's self interest (0)

Anonymous Coward | more than 5 years ago | (#28282957)

any ISP account closing would be contested in court anyway... so their monopoly wasn't threatened by this law.

Re:Court's self interest (4, Informative)

Mikkeles (698461) | more than 5 years ago | (#28283055)

Except that the Conseil Constitutionnel is not a court.

q: (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28282683)

what about the three strokes law? No matter how hard I try, I can't jackoff more than three times a day.

So what? People stay at bat all day?? (1, Funny)

Anonymous Coward | more than 5 years ago | (#28282699)

The headline just jumped out at me and made me so angry that I didn't RTFS or RTFA.
So a pitcher just keeps throwing at the hitter, the hitter keeps swinging and baseball gets even more boring than it already is?!?!

Re:So what? People stay at bat all day?? (5, Funny)

gnick (1211984) | more than 5 years ago | (#28283165)

Welcome to cricket...

Re:So what? People stay at bat all day?? (1)

Chris Burke (6130) | more than 5 years ago | (#28284339)

I just figured the law was rejected because the French don't like an analogy to an American sport. Instead they will replace the "three strikes and you're out" law with a "one goal on each side and then you have a shootout" law.

Re:So what? People stay at bat all day?? (1)

Schmorgluck (1293264) | more than 5 years ago | (#28284651)

Going with an English sport instead? Are you nuts?

Better a "let's try to throw large balls of steel as close as possible to the small wooden ball" law.

whats to stop (1)

FudRucker (866063) | more than 5 years ago | (#28282747)

i am glad this was overturned, anyway if someone was banned from the internet whats to stop a banned individual from getting a laptop and going online via one of the many open wifi access points (which have to be many)

American perspective (4, Interesting)

Hatta (162192) | more than 5 years ago | (#28282797)

When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts. The first problem is that freedom of speech in America doesn't guarantee you access to a forum to be heard. Second, there is no presumption of innocence in our Constitution. The closest we get is a right to trial by jury, but that only applies in criminal proceedings.

Re:American perspective (4, Informative)

thirty-seven (568076) | more than 5 years ago | (#28283169)

Second, there is no presumption of innocence in our Constitution.

The words "presumption of innocence" are not in the U.S. constitution, but it does guarantee "due process" in the fifth amendment.

The U.S. constitution was not written in a legal/historical/social vacuum, although, based on my first-hand experience talking with knowledgeable Americans, many of them seem to presume that the Founding Fathers were the first to invent or recognize the rights guaranteed in the constitution. But it is basically about guaranteeing rights that Englishmen had but that the American colonists were being denied. The U.S. Founding Fathers were quite insistent that they had certain "rights as Englishmen" that they were being unfairly denied.

So "due process" is not a meaningless phrase in the constitution - it means the sorts of process and protections that were common in the English system (i.e. common law), which is the inheritance of the U.S. and other countries, like Canada.

Re:American perspective (1)

sumdumass (711423) | more than 5 years ago | (#28283207)

The difference here would be on the lack of adjudication. Any penalties imposed by a law has to have an adjudication where those effected can argue their innocence and contest the claims. There are even lines of thought that civil and punitive penalties outside the actual loss requires a criminal trial to fit with the constitution.

Re:American perspective (0)

Anonymous Coward | more than 5 years ago | (#28283271)

"freedom of speech in America doesn't guarantee you access to a forum to be heard"

Especially not on Slashdot, where censorship is king.

Re:American perspective (2, Insightful)

Dragonslicer (991472) | more than 5 years ago | (#28284319)

When a 3 strikes law passes here in the US, I wouldn't expect such a good result from our courts.

The difference is that three-strikes laws in the US (at least the ones I've heard about) are about three convictions by a court, not three accusations by a private company. I'm not saying I agree with any three-strikes laws in the US, but at least they do go through the judicial system.

Clarification (1)

brian0918 (638904) | more than 5 years ago | (#28282869)

Now, don't get me wrong, I agree that the government should not be handling such regulation, however if an ISP decided to enact such a rule as a private policy, I'm all for their right to do that. I would not necessarily be willing to choose that ISP, but no restriction should prevent them from making decisions that cause them to lose customers.

Re:Clarification (1)

sumdumass (711423) | more than 5 years ago | (#28283237)

I would agree only to the extent that there are multiple ISP's in your area which aren't operating because of a grant of the public.

In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors. Cable internet and Phone company DSL are examples of this.

Re:Clarification (2, Insightful)

brian0918 (638904) | more than 5 years ago | (#28283473)

In many locations, the only high speed ISPs are those who have public utility status and therefore have access rights that get past some of the technical restrictions barring competitors.

Who does the blame lie with for these circumstances? The ISPs, or the city government? Who is enforcing the monopoly? Should a company be forced to comply with government requests because the government is withholding property for its own purposes and creating the monopoly?

The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

Re:Clarification (1)

Todd Knarr (15451) | more than 5 years ago | (#28283675)

In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service. So for the government it wasn't a choice between giving the cable company exclusive access or leaving it open to competition, it was between granting them exclusive access or them not serving that area. The usual argument they made was that they needed a guaranteed customer base and guaranteed revenue to justify the cost of running physical infrastructure to provide the service, that if they had to compete with other cable companies in an area then their fraction of the customer base wouldn't be enough to justify the fixed costs.

Re:Clarification (2, Insightful)

brian0918 (638904) | more than 5 years ago | (#28283929)

In many cases, the ISPs. Most phone companies (DSL) and cable companies (cable Internet) would only run service in an area on the condition that the government would grant them exclusive access to the right-of-way for that kind of service.

What right does the government have to enforce such a condition? If I tell the mafia that I'll only deal with them if they exclude my competitors from their black market, am I to blame for the black market, or is the mafia?

Of course, if a community of property owners all agreed and signed a contract permitting exclusivity on their properties to one ISP, then they should be bound to that contract. It would have been foolish of them to sign such a contract without some exceptions in case the ISP tries to screw its customers or otherwise degrade service.

Re:Clarification (1)

Todd Knarr (15451) | more than 5 years ago | (#28284507)

The government doesn't enforce that condition. The ISPs enforce it through the courts, by suing the local government if it breaches the contract it signed with them.

Re:Clarification (1)

Abcd1234 (188840) | more than 5 years ago | (#28283681)


The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

Yes... because regulations are the only barrier to entry. After all, it's dead easy to get the rights to lay your own copper, right? And I'm sure it doesn't cost very much to do that kind of infrastructure rollout...

Re:Clarification (2, Interesting)

brian0918 (638904) | more than 5 years ago | (#28284017)

Yes... because regulations are the only barrier to entry.

It's the only force-backed barrier to entry, yes.

Given that nobody has a right to internet access, there can be no compelling an ISP to offer services in any area where it doesn't want to offer services.

Re:Clarification (1)

Dragonslicer (991472) | more than 5 years ago | (#28284377)

Given that nobody has a right to internet access

Getting back on topic, that's exactly opposite of what France just ruled; Internet access has become a necessary means of communication and therefore is a right of all people.

Re:Clarification (1)

sumdumass (711423) | more than 5 years ago | (#28284389)

To answer in line,

Who does the blame lie with for these circumstances? The ISPs, or the city government?

The people, city and state governments. But only at their benefit which is why this isn't so important. If the ISP is there because of other agreements to benefit the community, then they can't or shouldn't take actions that counter that. It is the agreement that they benefited from all along after all.

Who is enforcing the monopoly?

Well, the answer actually goes through several agencies and government levels depending on the location and the path they took. However, the phone or cable company wasn't innocent within all this either, they competed in most cases to show that they would benefit the people the most. When they took the monopoly position by agreeing to do business in the area, they were also agreeing to benefit from it as it was supposed to benefit the public.

Should a company be forced to comply with government requests because the government is withholding property for its own purposes and creating the monopoly?

The government(S) don't just show up and say you are the only ones who can compete in this area. It seems like you might think that. What happens is that the government negotiates coverage to the benefit of the people they serve with the exclusive operations as the reward. Governments set up Utility commissions to regulate these entities and they also limit the rates they can charge too. They by their own agreement at some point in time agreed to service at the benefit of the people. In cases where competition hasn't displaced this scenario, that benefit needs to still be in place.

The solution is not to regulate the ISPs further, but to get rid of the regulation preventing competition from existing.

I agree, but where that hasn't happened, I'm against a company making a choice to not service certain customers based on nothing "legal" that hasn't be adjudicated by a competent court of jurisdiction.

Cocaine (0)

Anonymous Coward | more than 5 years ago | (#28282921)

When illegal filesharing is detected, users have to prove their innocence. This is obviously contrary to the constitutional principle of presumption of innocence."

The wording is a bit funky. If _potential_ illegal filesharing is detected is what it should say. One could not prove their innocence if they are illegally sharing files.

It should be more akin to a police officer seeing you hand someone a brick of white powder, then the other party handing you a stack of money... I don't think it's unreasonable for the police officer to act on his suspicion and ask if you're selling cocaine.

(that is, of course, on the premise that it is a police force who "detects illegal filesharing" and not an internet service provider. I know, ISP's are not common carriers and such. A boy can dream, though.)

Interesting development (3, Insightful)

Mr.Fork (633378) | more than 5 years ago | (#28282925)

What I find interesting is the spin on privacy. Here in Canada, our privacy law is one of the reasons why file sharing has been hard to crack down on. The ability to remain anonymous and retain your privacy rights blocks most ISP's from packet-sniffing on behalf of 'special interest groups' - it also requires a court order: the judge will ask 'what proof do you have' and then ask these groups to explain how the gathered that proof without violation of Privacy laws. Even the current 'throttling' may be violating my privacy of internet usage as it would prove my ISP is scanning and reading my traffic information - which is a violation of my privacy rights of internet usage.

Gah, I've been too slow! (2, Informative)

Schmorgluck (1293264) | more than 5 years ago | (#28282961)

Ah well, I can't say I'm surprised that several people have been faster than myself to submit that story.

Anyway, since I'd be offtopic if I posted just to say that, here's a link to the reaction of the association "La Quadrature du Net", spearhead of opponents to the law: Hadopi is dead: "three strikes" buried by highest court. [laquadrature.net] They deserve credit for their hard work.

US Congress please pay attention (2, Insightful)

T Murphy (1054674) | more than 5 years ago | (#28283049)

"They argue that removing Internet access is equivalent to hindering a person's freedom of speech"
I would much appreciate if US Congress took this to heart and forced ISPs to stop the anticompetitive behavior. Sure, if these corporations really want to charge exorbitant amounts for their top-tier services, that's their right as a business. But there is little reason to have such price gouging and consumer-abusive practices and horrible, out of date service. Yes, we have disadvantages like large rural expanses and suburban sprawl, but I would like to finally see some legal teeth put in place to get this country to where it should be.

Liberté, Egalité, Fraternité (4, Interesting)

owlnation (858981) | more than 5 years ago | (#28283095)

Vive la France!

Re:Liberté, Egalité, Fraternité (0)

Anonymous Coward | more than 5 years ago | (#28284427)

This should really be :

        Vive la France !

With a blank before the exclamation mark -- a 1/4 blank to be precise.

No presumption of innocence in France. (3, Interesting)

Maxo-Texas (864189) | more than 5 years ago | (#28283119)

There isn't a presumption of innocence.

There isn't quite a presumption of guilt either. As the wiki says:
http://en.wikipedia.org/wiki/Napoleonic_Code [wikipedia.org]
The possibility for justice to endorse lengthy remand periods was one reason why the Napoleonic Code was criticized for de facto presumption of guilt, particularly in common law countries. However, the legal proceedings certainly did not have de jure presumption of guilt; for instance, the juror's oath explicitly recommended that the jury did not betray the interests of the defendants, and took attention of the means of defense.

Re:No presumption of innocence in France. (3, Informative)

Anonymous Coward | more than 5 years ago | (#28283273)

In fact there is. The most supreme text in law is the Constitution, and its preamble is the Declaration of the Rights of Man and of the Citizen [hrcr.org] , which at article 9 states:

"As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law."

Re:No presumption of innocence in France. (1)

icebike (68054) | more than 5 years ago | (#28283987)

"As all persons are held innocent until they shall have been declared guilty,

Declared is a far cry from Proven.

Stop the Presses! (1)

Nom du Keyboard (633989) | more than 5 years ago | (#28283341)

Stop the presses! Common sense discovered in France!

Re:Stop the Presses! (2, Funny)

selven (1556643) | more than 5 years ago | (#28283845)

No need. They're already on strike.

Presumed innocense? (1)

icebike (68054) | more than 5 years ago | (#28283955)

Quote:

This is obviously contrary to the constitutional principle of presumption of innocence.

Question:

Does France have such a presumption?

Not trolling, I really don't know.

Giant spam machine (0)

Anonymous Coward | more than 5 years ago | (#28283977)

There was a great line from one of the commenters cited in an article in Le Monde [lemonde.fr] . Since the Conseil Constitutionnel invalidated the penalties envisaged in the law, but said it was OK to send warnings to illegal downloaders, "the only thing that's left is a giant spam machine for the entertainment industry, paid for by taxpayers."

"Il ne reste qu'une immense machine à spams pour les industries du divertissement et payée par le contribuable"

Can we now go back to the correct name for fries? (1)

jbr439 (214107) | more than 5 years ago | (#28284031)

Although, in this case "freedom" does indeed apply (without the sarcasm).

Clarification (0)

identity0 (77976) | more than 5 years ago | (#28284059)

For a second there I thought people were being sent to jail over P2P :P

I suppose the submitter is French, so it can be excused, but in America when we refer to "three strikes you're out" legislation, it usually refers to criminal laws that say repeat offenders of regular(non-copyright) crimes get a very severe sentence after the third offense. The term itself comes from baseball, but when people talk about "three strikes laws" it's almost always about violent crime.

In this case, it seems the story is about copyright/file-sharing law removing internet access? It's a very different thing than the American "three strikes" laws, so while the name is literally accurate, in the future you might want to clarify that you're talking about copyright law and removing internet access.

Re:Clarification (2, Insightful)

Schmorgluck (1293264) | more than 5 years ago | (#28284289)

To be fair to the submitter, the phrase "three strikes and you're out" has been used for a while to describe this law. I'm not sure who started to.

Freedom Fries! (1)

Kaukomieli (993644) | more than 5 years ago | (#28284211)

How about if we rename the French Fries to freedom fries in honor of this courts achievements in defending the freedom of its citizens?

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