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In 2023, rightsholders monitoring French internet users submitted 2.6 million complaints to the authorities after determining illegal sharing of pirated content on peer-to-peer networks, including BitTorrent. For the whole of 2023, a total of 3,844 subscribers were labeled ‘grossly negligent’ after receiving a third warning while 1,526 cases were sent to the public prosecutor. A relatively small number, just 234, received a financial penalty.

French telecoms/audiovisual regulator Arcom has released its annual report covering 2023. At 199 pages, it’s a significant read; our narrow focus here will be on copyright and infringement-related matters.

‘Three Strikes’ Still Going Strong

The French graduated response system (previously dubbed ‘Three Strikes’) launched in 2009/2010 to tackle widespread piracy of copyrighted content, carried out by internet users on peer-to-peer networks, predominantly BitTorrent and eD2K networks.

The mechanism involves sending a series of escalating warning notices to subscribers whose connections have been monitored whilst sharing copyrighted content online, mostly movies, TV shows and music.

Graduated response (Credit: Arcom, original in French)

The ultimate goal of the scheme today is unchanged since the scheme’s inception; inform internet users that their piracy activities are being tracked by rightsholders and if that continues despite the warnings, consequences will follow. The big question is whether the mechanism produces positive results.

Referrals Continue To Fall

In general, graduated response warnings are designed to raise awareness and encourage changes in behavior. The data provided by Arcom represent a mixed bag of positives, some assumed positives, and what appears to be a failure to produce any gains in a key area.

As the data below shows, the number of referrals by rightsholders to Arcom has been trending downwards for several years. With the continued popularity of centralized streaming and file-hosting services, mostly at the expense of consumption via BitTorrent, that’s to be expected.

Arcom puts forward the success of the program as the main reason the figures are still coming down, but also acknowledges other factors.

“This decrease results from a plurality of factors, such as the positive impact of the graduated response procedure, the transformation of practices regarding the consumption of cultural works on the internet, the acceleration of the dissemination of legal offers during the year, or even increasing use of workaround solutions (VPNs) by Internet users,” the regulator explains.

Survey data indicates that 38% of internet users on a first warning say they now use a VPN.

Change of Spec Boosts Accuracy, No Fall in Prosecution Rates

2023 was an unusual year for detecting alleged infringers. For the first time, all French internet service providers were required to make identification of their subscribers easier by associating their IP addresses with their connections’ source ports.

The aim here is to reduce complications stemming from IP addresses being shared with other subscribers. Arcom says this change produced a significant increase in the average detection rate; from 56% in 2022 to 77% in 2023.

As a result, French internet users received 137,578 initial warnings, with 32,894 going on to receive a second. Around 10% of those failed to get the message, leading to findings of gross negligence against 3,844 internet users in ‘pre-criminal’ proceedings.

A total of 1,526 cases were sent to the public prosecutor in 2023, versus 1,395 in 2022, and 1,484 in 2021.

At the Punishment End, Very Little Changes

Generally static data for 2021, 2022, and 2023, suggests that the scheme is likely ineffective against a subset of internet users. Given how unusually similar the figures are year-on-year, it’s also possible that processing capacity, referral quotas, or other artificial factors play a role in keeping levels stable.

Taking zero notice of notices?

Nevertheless, at the sharp end of the scheme where persuasion and education run out of steam, only punishment remains. Of the 3,844 internet users labeled ‘grossly negligent’ just 41% (1,526) were referred to the prosecutor; that seems to suggest a better than 50/50 chance of avoiding immediate punishment.

Of the 1,526 cases seen by the prosecutor, just 838 cases result in ‘known legal consequences’ for the subscriber involved. That looks like another 50/50 chance of avoiding punishment, but what actually happens to those involved is unclear.

Relatively Few Internet Users Receive Financial Punishments

Of the 838 cases that didn’t disappear into the ether, less than three in ten cases resulted in a financial penalty.

“In 2023, 838 legal proceedings were brought to the attention of Arcom, of which 28% resulted in financial sanctions (fines or equivalent) whether they were criminal sanctions stricto sensu or alternatives to prosecution accompanied by the payment of a fine (criminal composition) or a citizen contribution (the amount of which, set by the Public Prosecutor, is paid to approved victim assistance associations,” Arcom explains.

If the non-BitTorrent share of the piracy market continues to meet public demand via streaming and hosting services, it’s likely that Arcom will meet diminishing returns in its pursuit of peer-to-peer infringers. That being said, the number of users still sharing rather than streaming content is significant.

Couple that with Arcom’s recent green light from the EU’s highest court to continue monitoring alleged infringers, it’s likely that no changes will be seen in the foreseeable future.