What would Sarko do?

On matters of social policy I have often found it useful to look at how European governments, especially the French, address the issue in question. As it happens, the issue of internet access vs. copyright infringement was being hotly debated while I was in France last fall, as the Sarkozy government introduced a law, known as Hadopi (acronym for a 'High Authority' who would administer it), which would impose sanctions on downloaders. Alas, I found the issue pretty inscrutable at that time, with a lot of technical vocabulary, and in short I pretty much ignored it. I did notice that both the governing right-center UMP and the Socialists were having trouble creating a consensus and keeping their members in line on this hyper-sensitive question with so many competing interests in play.

So now that the Tenenbaum case has piqued my interest, I have gone back and learned a few interesting things about Hadopi:

• First, the law as proposed is pretty tame. An infringer would receive an email warning from his provider. A second infraction would draw a warning by registered letter, and if the infringement persisted, the provider would be authorized to cut off internet connections to the offending computer for up to a year (with the user banned from changing providers in that time). That's it: no million dollar judgements, no drama. And yet ...
• The law met with militant opposition on a number of fronts: the surveillance of computer users was deemed invasive, the penalty of interrupted service disproportionate, the role of the provider as arbiter unconstitutional.
• In view of these objections, particularly the latter one, the French Constitutional (Supreme) Court struck down the penalty part of the law, rendering it useless. A new version is now making its way through the parliament, but I'm not sure how the problems are addressed.

Several points could be drawn from this comparison. First, this rather modest legislative attempt at remedy makes the American approach through civil litigation look extremely heavy-handed, with a vast and disproportionate degree of power vested in private interests (e.g., the recording industry) with the means to conduct expensive lawsuits. France has a totally different balance of power between individuals and corporate interests. Secondly, from what I can tell the opposition to Hadopi is deeply rooted among left-leaning citizens who, being French, make their position known in the street with large noisy protests. And third, these opponents include high-profile artists, 'creators,' who in our country are pretty well locked down by the industry but in France feel free to side with the libertarians (perhaps against their own economic interests).

One reason for this last point may well be that the French recording industry is smaller, with less at stake. On the flip side, artists may well depend more on state subsidies and less on the largesse of the industry. I'm not really sure of the present state of artistic subsidy in France, but I notice Socialist legislators pointing to this as a potential solution to the vexing question: if the new medias allow for free use, how will the artists get paid?

Well and good, you say, but public subsidy just isn't an option over here in Frontierland USA. Maybe so, but what would be our red-blooded American alternative? How about foundation support? Some are starting to see this as the solution to the journalistic crisis, as the newspapers die not through infringement but fair use. A non-profit but rigorously non-governmental support network here in the land of low taxes and 8-figure salaries might make sense for musicians as well as journalists (though one might imagine a vast divide between the artist as modestly salaried, whether by state subsidy or private grant, vs. the artist as win-the-lottery American Idol, all-or-nothing star or loser--the plot line our culture seems to prefer. Does our sensationalized star system make for better art, or just a lot of hoopla and wasted motion?  Would public subsidy produce boring official art, or a distinguished caste of socially integrated artists?  Right now in America the labels are waging (and perhaps winning) a rear-guard action to defend their status quo. Tenenbaum's case is an awkward moment in that ungainly struggle. But history is ultimately on the side of progress, not stasis, and we should all be thinking of creative ways to support creativity under the changed circumstances of rapidly evolving technologies.