Mandelson's Madness

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The trajectory of the Digital Economy Bill has been extraordinary, constantly experiencing will-he-won't-he moments as successive consultations and comments and rumours have contradicted each other over whether “three strikes and you're out” would be part of the plan. Today, the Bill is finally published, but that particular element now looks almost mild compared to what is apparently coming:

In a letter to Harriet Harman, the leader of the house and head of the committee responsible for determining changes to such legislation, Mandelson says he is "writing to seek your urgent agreement" to changes to the 1988 Copyright, Designs and Patents Act "for the purposes of facilitating prevention or reduction of online copyright infringement".

As anyone who has followed copyright for anytime knows, even tiny changes to copyright law have huge ramifications, which is why they are argued over for years. But it gets worse:

By writing to Harman, the business secretary is seeking to get the change made through a "statutory instrument" – in effect, an update to the existing bill that the government can push through using its parliamentary majority.

That can be done with the minimum of parliamentary time, which is already at a premium.

That is, there will be almost no scrutiny of these changes, which essentially makes them diktats by the Secretary of State for Business, Innovation and Skills. The current incumbent, and the driving force behind these new moves, makes no secret of why he is taking these measures:

Mandelson says in his letter that he is concerned about "cyberlockers" – websites that offer users private storage spaces whose contents can be shared by passing a web link via email.

"These can be used entirely legitimately, but recently rights holders have pointed to them as being used for illegal use," Mandelson writes in the letter.

In other words, this is purely driven by the insatiable demands of the content industries – for whom copyright can never be too long, nor punishment for copyright infringement too draconian.

This is penalising every other industry, and every online user, for the sake of one, congenitally lazy sector that has fought every new technology for the last century on the basis that it will “destroy” its business model, and “ruin” it. Of course, just as every new technology turned out to be a new *opportunity* for those self-same companies once they were forced to work with it rather than against, so file-sharing will enable a host of new business models. Until that point, though, if the current proposals go through, we will all be paying the price for this unjustifiable preferential treatment.

The Department for Business Innovation and Skills has put together some “Factsheets on the various elements of the Digital Economy Bill”, including one on copyright [.pdf]. It's worth reading, because it exposes the utter failure of Mandelson and his team to grasp the implications of the digital era.

Try this, for example:

We want a framework for copyright and performers’ rights that reflects the needs of the digital age, and gives the UK’s creative industries the chance to develop new legitimate digital products delivered in the way people want, at a price that is fair. That means we need to make doing business easier in this area, and to significantly reduce the amount of online infringement of copyright..

The UK's “creative industries” have had that chance for the last decade, ever since Napster appeared on the scene and it was obvious that here was an amazing technology for easing the distribution of content to customers. Media companies have consistently refused to take advantage of that “chance”, and even resisted developing “legitimate digital products” for many years, forcing people to find other sources for their digital content.

Business does not need to be made “easier”: it is *already* trivially easy – that's the whole point. It's the “creative industries” that have insisted on making business harder by refusing to engage with the technologies, and then trying to sabotage them with things like DRM.

Similarly, there is no necessary causal link between reduced online copyright infringement and increased sales: one model that works perfectly well is to *encourage* people to copy your stuff to provide free marketing. Contrary to what the “creative industries” would have you believe, people are willing to buy stuff that is freely available online; in addition, there are many opportunities for selling ancillary goods off the back of the primary content.

The factsheet also has some more background on Mandelson's power-grab:

It includes a power that will allow the Secretary of State to amend the CDPA for the purpose of preventing or reducing online copyright infringement, in relation to technological developments that have occurred or are likely to occur. This is in recognition of the fact that the measures also in this legislation specifically to tackle online infringement of copyright (see below) will not, by themselves, tackle the whole range of such infringement. Technology develops at a great rate and it is likely that the coming years will bring new challenges in terms of tackling copyright infringement. This power will provide the Government with a flexible approach to dealing with emerging threats quickly and in a targeted way, but we will have to consult on anything we propose, and Parliament will have the opportunity to check that it is fair and proportionate to all parties.

So now, it seems, the fact that “technology develops at a great rate” can be used to short-circuit the standard legislative process to allow Statutory Instruments to be brought in with very little consultation – despite what the paragraph above says. How long before we see the same argument applied to terrorism – after all, the technology there is developing pretty quickly, so surely the same logic applies? In fact technology is developing pretty quickly everywhere, so why not introduce all legislation using Statutory Instruments instead of laying it before Parliament for full scrutiny? Oh wait, that's called a dictatorship....

The shoddy nature of the thinking behind the Copyright factsheet is made plain by the following section:

Current legislation allows rights holders to take civil action against individuals who breach copyright. This is ineffective against online infringement of copyright in cases such as P2P file-sharing because it is difficult and costly to identify the individuals concerned and the number of individual infringements is huge (industry estimate some 6.5m people file-share in the UK).

That 6.5 million “industry estimate” is presumably the same as this one, since there are precious few floating around:

That 6.7m was gleaned from a 2008 survey of 1,176 net-connected households, 11.6% of which admitted to having used file-sharing software - in other words, only 136 people.

It gets worse. That 11.6% of respondents who admitted to file sharing was adjusted upwards to 16.3% "to reflect the assumption that fewer people admit to file sharing than actually do it." The report's author told the BBC that the adjustment "wasn't just pulled out of thin air" but based on unspecified evidence.

The 6.7m figure was then calculated based on the estimated number of people with internet access in the UK. However, Jupiter research was working on the assumption that there were 40m people online in the UK in 2008, whereas the Government's own Office of National Statistics claimed there were only 33.9m people online during that year.

In other words, the 6.5 million figure is almost certainly based on a tiny sample and outrageously massaged upwards. If that's the best the government can do to justify these extreme measures, it is indicative either of their complete ineptitude or their complete contempt. I'd vote for the latter, on the basis of the following section of the factsheet on the benefits to consumers of all this wonderful new legislation:

Consumers should benefit from a wider range of competitive content offers from safe (virus-free) sources. They will also benefit from the continued re-investment in new content and talent. More generally, society should benefit from the increased awareness of the importance of copyright.

Go that? We should rejoice in the unlimited powers of the Secretary of State to pass copyright legislation because it means that we can now obtain content from “safe” sources (because industry sites *never* get infected with viruses, do they?) - unless, of course, you're running GNU/Linux, in which case you don't get viruses anyway.

But wait, there's more: we will get “continued re-investment in new content and talent”, which is obviously an implicit threat not to invest unless we give them all these new powers. Except that new content and new talent continues to pour online with the current regime: it's only the sclerotic media giants that are falling behind through their own inability to adapt to the new world. And finally – the big one - “society should benefit from the increased awareness of the importance of copyright”, because copyright is an intellectual monopoly, and everyone knows that society benefits so much from monopolies.

This document is risible. It draws on discredited industry figures in a feeble attempt to justify some of the most far-reaching and dangerous changes to not just copyright law, but any UK law, giving a government minister unprecedented and unbridled powers to act as he or she (and their chums in the “creative industries”) might choose. If this proposal is enacted, it will turn the British online world into a wasteland, with business and end-users paying the price not just financially, but in terms of the loss of the ability to innovate and of fundamental freedoms. Now might be a good time to write to your MP....

Follow me @glynmoody on Twitter or identi.ca.

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