So close and yet so far

The New York Times has an article by Eric Pfanner about the French failure to whack digital piracy:

The highest constitutional body in France on Wednesday defanged the government’s plan to cut off the Internet connections of digital pirates, saying the authorities had no right to do so without obtaining court approval.
The decision, by the Constitutional Council, which reviews legislation approved by Parliament before it goes into effect, is a major setback for the music and movie industries, which had praised the French law as a model solution to the problem of illegal file-sharing. The council rejected the core portion of the measure, under which a newly created agency, acting on the recommendations of copyright owners, would have been able to order Internet service providers to shut down the accounts of copyright cheats who ignored two warnings to stop. The council said the proposal was contrary to French constitutional principles, like the presumption of innocence and freedom of speech. The latter right “implies today, considering the development of the Internet, and its importance for the participation in democratic life and the expression of ideas and opinions, the online public’s freedom to access these communication services,” the council said.
Mark Mulligan, an analyst at Forrester Research, said: “What this highlights is the danger of using legislation and the courts to further your business aims. You become a victim of the whole process.”
That process has been tortuous for the French legislation, which was originally outlined a year and a half ago by President Nicolas Sarkozy. The proposal was approved by Parliament last month, but only after the government resubmitted it following a surprise rejection by the lower house, the National Assembly, in April.
Christine Albanel, the culture minister, said she would suggest to Mr. Sarkozy that the law be modified as the council demanded, reserving for judges the decision to cut off Internet access. She said she regretted the loss of an opportunity to “decriminalize” the process by giving the new agency that power. Ms. Albanel added that warning letters would begin going out to downloaders as planned in the autumn. But critics of the legislation said that without the threat of disconnection, the new agency would be toothless. “All we have now is a big tax-sponsored spam machine for the entertainment industries,” said Jérémie Zimmermann, director of La Quadrature du Net, a Paris-based group that has campaigned against the measure.