Graduated response beyond the copyright balance: why and how the French HADOPI takes consumers as targets

Abstract

PurposeThe purpose of this paper is to analyze the HADOPI Law adopted in France in 2009. It aims to focus on two aspects of the law: the graduated response and the certification of a “legal” offer. It also aims to describe both, analyze their rationale and discuss their likely impact.Design/methodology/approachThe paper combines legal and economic approaches. The legal debates have been analyzed and transcribed in a casual discourse. Economic analysis is used to understand the rationale of the law. Both approaches are used to point out the limitations of the law.FindingsThe paper shows that the graduated response and the certification of a “legal” offer both target consumers. The former aims at deterring file sharing, the latter aims at guiding consumers towards “legal” services. However, the graduated response's efficiency is dubious; the certification raises the issue of defining what is legal. Both mechanisms destabilize the French copyright law by putting more pressure on ISPs and online services. Targeting consumers in the name of copyright may cause a rejection of copyright as a whole.Practical implicationsThe HADOPI Law is considered a pioneer in the field of copyright enforcement, especially as a first application of the graduated response. The topic is therefore of premier importance for copyright at global level.Originality/valueThe paper is the first to combine economic and legal approaches to analyze the graduated response. It deals with the certification of “legal” services, which has only rarely been studied. The link between both mechanisms has never been considered before.