And as PC Inpact explains, even if it is confirmed, it may be unenforceable: although access to the Web can be cut, Hadopi's rules state that the filtering must not affect email, private messaging, telephone or any associated TV services. Since these are typically all provided together, that may be tricky, or even impossible. Hadopi says it only hands out suspensions: it doesn't concern itself about how -- or even if -- they can be implemented.

So after years of operation, all that the three-strikes approach has to show for the millions that have been spent, are a handful of convictions: one where someone was fined but innocent, and another where the person involved probably can't be disconnected anyway. Great work, Hadopi.

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Apple argued as follows: the decision was not based on any hard data flowing from a study of actual use and merely replicated a previous decision applicable to mobile telephones, which decision was quashed for failing to properly carve out professional use....

[....] However, Copie France sought an award of a provisional amount, relying not on decision #13 but rather on the general statutory principle that such compensation is due. The Court agreed with this line of reasoning, noting that such principle was enshrined in both domestic and European law. It further noted that Apple, as supplier of the equipment at issue, was indeed the party that owed the levy. The Court thus fixed the amount of the provision at €5,000,000, to be applied against the final sum to be determined for the period between February and December 2011 (and ordered that its judgment be enforceable notwithstanding any appeal).

Fleur Pellerin, the French minister in charge of Internet policy, said during a recent visit to a high-technology complex in Sweden that suspending Internet connections was incompatible with the French government’s hopes of spurring growth in the digital economy.

“Today, it’s not possible to cut off Internet access,” she said. “It’s something like cutting off water.”

The real solution, as Mike noted in the previous case, is for physical stores to become more attractive, not for governments to pass yet more clueless and ineffectual laws trying to diminish the power of the Internet.

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"Our position is that the content has to be paid for ... We showed that our focus is to be paid for Google News using our news," he said, adding that the two sides planned to continue regular meetings.

A Google spokeswoman said the company "does not comment on private meetings held by its teams".

“Twitter is playing the indifference card and does not respect the ruling,” Hayoun told AFP. “They have resolved to protect the anonymity of the authors of these tweets and have made themselves accomplices to racists and anti-Semites.”

"We've been in continual discussions with UEJF," a Twitter spokesperson told CNET. "As yesterday's new filing shows, they are sadly more interested in grandstanding than taking the proper international legal path for this data. We are filing our appeal today, and would have filed it sooner if not for UEJF's intentional delay in processing the court's decision."

The article concerns Pierre Lescure and his team, who have been charged by the French government with coming up with ways to help the world of culture in France adapt to the Internet economy. One idea, kindly suggested by the French recording industry, is to replace Hadopi's court procedures for those accused of unauthorized file sharing with an automatic fine of 140 euros after three strikes. That is, from being guilty until proven innocent, as now, under the proposed scheme those accused would simply be found guilty without any further discussion. And then there's this:

In parallel, no de-penalization for non-commercial sharing, but a desire to "increase the value" of free licences of the Creative Commons kind. The Lescure team believes that letting works circulate freely (as they do now...) would hinder the development of legal offers, particularly VOD [Video On Demand].

We shall have to wait to see what he has in mind. But it would be hard to find a better symbol of the French establishment's attitude to the Internet and its extraordinary new possibilities than trying to make people pay for works that could be shared freely (because their creators want that), on the grounds that it might hinder a service that turns the Net into television.

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"While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF."

As none of the agreement partners bothered to reply to inquiries from journalists and free culture advocates, the only source of information was a press release from the Ministry of Culture mentioning an official agreement between the Library (Bibliothèque nationale de France, BnF) and ProQuest. The release was highlighting the somewhat obscure branch "BnF-Partenariats" as executives of the contract, and that this agreement is part of a wider initiative: "Early European Books."

The issue here is not commercial use of materials in the public domain but the labyrinthine logic of the agreement. This logic proposes that a client from the public sector (i.e. research and education institutions) will buy a number of works handled by another public institution (i.e. the French National Library), and the profits will reimburse money advanced by a private service provider. A painful situation for our cultural heritage, forcibly entrusted to be the square peg to get into the round monetary hole.

What is unclear, however, are the legal terms under which the digital copies will be handled. In plain English, the BnF has signed an agreement to sell access to digitized copies of books in the public domain. This makes a travesty of its official role: the BnF is supposed to grant access to these works, but the BnF-ProQuest agreement actually blocks access. In the present (whacko) case, the Library – that is, the public institution invested with the power to manage commons, – not only does what is normally the publisher's job, selling, but it also monetizes these works, thus acting as a merchant, which takes work from publishers. The larger questions this raises over exclusivity and ownership of these digital versions are very important. From what's been said to date, it seemingly implies that the digitization of those books means the outcome is a brand new production owned by the ProQuest, the digitization service provider.

Even more strange? ProQuest's agreements elsewhere are quite different, and not nearly as controversial. The BnF-ProQuest agreement is a part of the "Early European Books" initiative. In addition to the French, four other national libraries are a part of the effort: the Royal Library (Denmark), the National Central Library of Florence (Italy), the National Library of the Netherlands, and the The Wellcome Library, London (UK).

The details for each of these agreements, however, are quite different than the agreement in France. Indeed, in every other case, ProQuest digitizes, at its own expense, the works in the public domain operated by the respective partnering national library. It then offers free access to the digital versions of these materials within the country. As ProQuest needs to earn money, it sells the access to its database to other countries (through subscriptions contracted by the universities). According to the BnF-ProQuest agreement, however, no free access to the digital versions is provided other than the very limited version as described above.

Oh, and as if a national library agreeing to sell the country's cultural heritage was not absurd enough, when asked for the details of the agreement the BnF has now admitted that its contract with ProQuest has been misplaced. One might properly note that, so too, has the public domain been "misplaced" with this deal.

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This interpretation is supported by the other notable fact to emerge from Dotcom's tweet: that after French users, it is Spaniards who are signing up for Mega's premium membership in droves -- another group who have had a punitive copyright infringement law imposed on them recently. This means that in about a year's time, we can probably expect the Spanish department tasked with implementing Ley Sinde to publish figures showing that the number of P2P users is falling -- omitting to note, of course that they, like their French counterparts, have simply moved to alternatives instead.

Now, some will doubtless use these trends to argue that Mega should be shut down just as Megaupload was. But the correct inferences to draw are that HADOPI and Ley Sinde are just an expensive waste of time, and that people don't expect to get everything for free, as the popularity in France and Spain of Dotcom's paid-for Mega service shows. It's just a matter of the recording and film industries offering the public what they want, in a form they want, at a reasonable price. Is that really too much to ask?

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UPFI, (Union of Independent Phonographic Producers), said that it agreed with the opinion of French music rights group SACEM that a disconnection regime should be replaced with warnings along with fines of 140 euros.

PCInpact contacted Jerome Roger, Director General of UPFI, who confirmed the group is indeed in favor of such fines.

This leaning towards cash penalties is also endorsed by Warner Music President Thierry Chassagne. In recent comments Chassange suggested that not enough punishments have been handed out under Hadopi and that a deterrent is necessary.

Update: Right on cue, Eric Schmidt has just unveiled -- you guessed it -- a "partnership" with French publishers:

Today I announced with President Hollande of France two new initiatives to help stimulate innovation and increase revenues for French publishers. First, Google has agreed to create a €60 million Digital Publishing Innovation Fund to help support transformative digital publishing initiatives for French readers. Second, Google will deepen our partnership with French publishers to help increase their online revenues using our advertising technology.

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I mean, when I had my first meeting with counsel, they explained to me very carefully that.... By taking the matter to court, the entire private information which I was complaining about would be rehearsed again in public, with all the press there, with the benefit of absolute privilege for anything that was said, and that at the end of all of that, no judge could remove the private information from the public mind. Indeed, by going to court, I was augmenting the degree to which the public were aware of it.

It's in the hundreds. My lawyers would probably produce an exact figure. One of the difficulties is that Google have these automatic search machines so if somebody puts something up somewhere, if you Google my name, it will appear. We've been saying to Google, you shouldn't do this, this material is illegal, these pictures have been ruled illegal in the English High Court. They say we're not obliged to police the web and we don't want to police the web, so we have brought proceedings against them in France and Germany where the jurisprudence is favourable. We're also considering bringing proceedings against them in California.

But the fundamental point is that Google could stop this material appearing, but they don't, or they won't as a matter of principle. My position is that if the search engines -- if somebody were to stop the search engines producing the material, the actual sites don't really matter because without a search engine, nobody will find it, it would be just a few friends of the person who posts it. The really dangerous thing are the search engines.

Accordingly, such an injunction would result in a serious infringement of Netlog’s freedom to conduct its business since it would require Netlog to install a complicated, costly, permanent computer system at its own expense.

Moreover, the effects of that injunction would not be limited to Netlog, as the filtering system may also infringe the fundamental rights of its service users - namely their right to protection of their personal data and their freedom to receive or impart information - which are rights safeguarded by the Charter of Fundamental Rights of the European Union. First, the injunction would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network, that information being protected personal data because, in principle, it allows those users to be identified. Second, that injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications.

For example, copyright terms can be extended retrospectively, which means that material will be locked up for longer than originally promised in the "deal". Or there can be a privatization of public domain materials, using contracts, as reported here by Communia:

Last week the Bibliothèque nationale de France (BnF) concluded two new agreements with private companies to digitize over 70.000 old books, 200.000 sound recordings and other documents belonging (either partially or as a whole) to the public domain. While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF.

It's a sad sign of the extent to which once-great libraries and galleries have been assimilated by the copyright industry and its culture of owning rather than sharing that they can't see why their complicity in this kind of enclosure of the knowledge commons is a deep betrayal of their origins and primary mission.

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It turns out that there are some very specific reasons why Google might have taken this surprising step, as Forbes explains:

Orange have implied their strong market position in Africa provided them sufficient leverage in the discussions with Google.

The African market is currently making the switch from feature phones with limited data access, to low-cost smartphones that provide far greater access to the internet and web services. Low-cost smartphones that are predominantly powered by Android. Google wants the emerging market to be running their OS so they can effectively monetize the continent. What they don't want is another platform becoming established, such as Nokia's low-cost Windows Phones or the upcoming Blackberry 10 devices.

In most other parts of the world, Android is already established as the leading smartphone platform, so Google won't need to make similar deals. That doesn't mean that telecoms and ISPs won't demand them, but their bargaining position will generally be much weaker than Orange's. Google will probably be able to refuse without risking too much, secure in the knowledge that Internet users won't be best pleased with their ISPs if they can't access Gmail, or YouTube becomes unbearably laggy.

But even if the Orange deal is a special case, it's still bad news for the Internet. Google has clearly signaled that net neutrality is not sacrosanct, and that it is quite prepared to abandon it when necessary.

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Pellerin also called a meeting between interested parties to discuss net neutrality in France, since this is fundamentally what is at stake: if ISPs like Free can arbitrarily block or throttle elements of the IP stream, net neutrality is dead in France. However, rather than come to any final decision on this increasingly contentious area, Pellerin did what most politicians do in the circumstances: she announced that yet another group would be looking at the question and reporting back.

Given that in July 2012 Pellerin seemed to be a staunch defender of the idea -- she said "in my view, neutrality must be the rule" -- this conspicuous lack of support for net neutrality seems a clear sign that the French ISPs and telecoms have been lobbying hard and successfully. As the digital rights organization La Quadrature du Net put it:

Yet again, today's debate on Net Neutrality will have been a smokescreen. The voluntary speeches fall short with the referral of the issue to an obscure committee created by Nicolas Sarkozy, the CNN (Conseil national du numérique), all to finally justify the failure to adopt a serious position. Operators are left free by the State to restrict and monitor our online communications. While all the elements on the table demonstrate the need to act quickly by enshrining Net Neutrality into the French legislation, Fleur Pellerin still evades the issue.

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The French minister said: "No actor can jeopardise the digital ecosystem in a unilateral way."

Millions of French netizens discover their YouTube streams sputter and die or never begin in the first place. Other video services, including TF1, are also struggling. The effect varies, sometimes randomly and sometimes by time of day. Respected consumer organization UFC-Que Choisir found between 20% and 50% of users surveyed online had problems.

Again, the existing connection remains and much of the traffic gets through. But Net traffic always grows and without regularly adding additional capacity many - not all - streams are blocked. French networks, with France Telecom in the lead, are refusing to accept growing traffic from Cogent, a major backbone carrier that services Google. They demand payment to accept all the streams their customers request. The independent French competition authority (Autorite de la concurrence) on September 20 approved the charging plan, leaving no doubt this is neutrality dispute.

Hadopi hasn't been going too well. Despite putting out some dodgy statistics, the Hadopi agency hasn't really been able to show that the three-strike approach is doing anything to reduce the number of unauthorized downloads. In the two years that Hadopi has been running, only one person has been brought to court -- and he was innocent, but fined anyway.

As we reported, with Sarkozy gone, the new French President and his team are looking for ways to cut the cost of this scheme. Numerama has details of a recent presentation from the French Minister of Culture and her advisor, Pierre Lescure, about the future of Hadopi (original in French) that confirms the "three strikes" approach is likely to be dropped:

[Lescure] strongly suggests that the graduated response will be abandoned, because it is considered illegitimate and ineffective. "It is likely that a significant proportion of Internet users who have stopped P2P downloads have turned to other types of unmonitoried methods (streaming, direct download) rather than legal offerings, whether free or paid," writes Mission Lescure. Sending out e-mails may be not stopped, but it seems certain that the criminal sanctions will be shelved.

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French newspaper publishers have been pushing for the law, saying it is unfair that Google receives advertising revenue from searches for news.

French Culture Minister Aurelie Filippetti also favours the idea.

Google said such a law "would threaten its very existence".

Google France had said earlier that the plan "would be harmful to the internet, internet users and news websites that benefit from substantial traffic" that comes via Google's search engine. It said it redirected four billion clicks to French media pages each month.

But in Europe, things still have a long way to go in terms of providing a digital perspective on legislation and treaties that can counterbalance the powerful lobbying machine of the old media industry there. That's what makes the following story about a revolt by French startups against a proposed tax rise, reported here by David Meyer on GigaOM, rather remarkable:

Arguing that there would be little point in being an entrepreneur in France anymore -- particularly with the UK offering a much better deal just across the Channel -- the startups organized themselves into a largely online movement called 'Les Pigeons', or 'the suckers'.

They were set for a street protest this weekend, but yesterday they met with finance minister Pierre Moscovici…and won.

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