France’s HADOPI ignominy: it’s all the fault of ageing May 1968 trendies with no understanding of what culture is all about

Now, the strategy of giving intellectual property away so that people will buy your paraphernalia won’t work equally well for everything. To take the obvious, painful example: news organizations, very much including this one, have spent years trying to turn large online readership into an adequately paying proposition, with limited success.

But they’ll have to find a way. Bit by bit, everything that can be digitized will be digitized, making intellectual property ever easier to copy and ever harder to sell for more than a nominal price. And we’ll have to find business and economic models that take this reality into account.

(Paul Krugman, The New York Times, “Bits, Bands and Books”, June 6, 2008)

Amid the general rejoicing over the French Constitutional Court’s decision to declare that country’s government’s Three Strikes and You’re Out bill (generally referred to there as HADOPI) unconstitutional, most commentators have focused on the French Culture Minister’s gross mishandling of the subject and completely lost sight of the underlying economic trend that caused the issue to arise in the first place.

Most French politicians today are of a generation that was very young at the time of the May 1968 social revolution that challenged—and eventually toppled—the bourgeois cultural model that had prevailed in their country since the 1789 Revolution. But they were all deeply marked by it: Left and Right alike, and the impact of this is often forgotten. It is also often overlooked that the informality (at the best of times) and vulgarity (sadly increasingly prevalent) of the political establishment would have been unthinkable as late as the 1970s: no self-respecting member of M Giscard d’Estaing’s government would have been seen dead at a Johnny Halliday rock concert or at a football match and even M Mitterrand, despite his somewhat disturbing lack of understanding of, or interest in, economics, was a man of not inconsiderable culture. Politicians until then were of a generation that would have more naturally gone to the opera or to a classical music concert, whereas M Chirac and M Sarkozy have never set foot at the Palais Garnier or the Opera Bastille, despite attempts to lure both of them there before, during and after the 2002 and 2007 presidential campaigns. They just could not face the boredom, as they saw it, of being exposed for three hours or more to what must be one of their country’s finest cultural achievements.

The stunningly vulgar M Halliday, considered a rebel in the early 1960s and who would certainly have been banned from the Elysée by the very prudish Madame de Gaulle, is one of the pillars, albeit a rather decrepit one, of a French music industry that has been doing big business since the economic model around which the record industry built its success was established in the 1950s. It hardly needs pointing out that the French President’s current and third wife is a pop singer. The relationship between the French music industry and the French political establishment is thus both culturally deeply ingrained and deeply incestuous: cozying up between ageing former hippies, infected—usually unwittingly—by the cultural indifferentism of Pierre Bourdieu, belatedly converted to capitalism, to whom Mozart or Beethoven mean nothing at all and to whom the idea of anything beautiful being created for any purpose other than monetary gain is incomprehensible.

Yet the economic model underpinning this cozy symbiosis has predeceased the equally outdated cultural one, although the French politicians, utterly impermeable to even the most elementary forms of economics, remain quite blind to reality: the music industry is going bankrupt, because its distribution model is obsolete. You will not easily find records by the hottest new groups in France’s rock scene in CD form at the ubiquitous retailer FNAC. Yet their concerts vibrate with the same sense of excitement that must have prevailed at M Halliday’s début. These groups, younger, more attractive and arguably more talented than the senescent rock stars that make up the political establishment’s entourage, manage a feat that seems incomprehensible to MM Sarkozy, Halliday or Bruel (another ageing French Sinatra imitator) but that Palestrina, Bach and Haydn managed before them: they can write beautiful music and get people to listen to it, without the process involving the parasitical music industry. As Paul Krugman pointed out,

Even if record sales are modest, bands can convert airplay and YouTube views into financial success indirectly, making money through “publishing, touring, merchandising and licensing.” [i]

The fact that France’s establishment is cut off from political reality in a way that even Britain’s despised Socialist government, which has ruled out a three-strikes and-you’re out law as too draconian, is not, ultimately explains the rest of the HADOPI fiasco. Throughout the drafting stage, those responsible at the private offices of the French President, Prime Minister and Culture Minister insisted that there was no legal risk, and the individuals concerned are now, rightly, the object of collective ridicule. The French Constitutional Court, instituted by General de Gaulle in 1959 to verify the conformity of new laws to the Constitution, found on June 9 that that the sanctions instituted by France’s proposed three-strikes-and-you’re out law were unconstitutional because (1) they would have disproportionately infringed civil liberties and (2) they would have been contrary to the constitutionally-guaranteed presumption of innocence.

At the time of writing this the French government appears to have decided to promulgate the law without the sanctions, meaning that only warnings can be sent to those believed to have engaged in illegal downloading until the government enacts an additional law instituting sanctions pronounced, as required by the Constitutional Court, by a judicial authority.

Ultimately, however, the cause of the fiasco is not a legal issue, despite the gravity of the infringement of civil liberties that caused the demise of HADOPI, but the unwillingness, or perhaps the inability, of the French political elite to take a serious interest in cultural policy. And behind the economic reality that the model HADOPI seeks to prop up is dead, is the hard fact that youth, creativity, talent and fashion have moved on and that the French political establishment has been left behind and has clearly still not understood what is happening to it.

  1. Paul Krugman, The New York Times, “Bits, Bands and Books”, June 6, 2008