Thursday, April 08, 2010

Digital Economy Bill - Stable Door. Horse. Bolted.

A little noticed bill was passed into law by MPs in the 'wash up' between the calling of the general election and the dissolution of parliament. It was pushed through without a great deal of real debate, and with a lot of last minute negotiating by party fixers and whips. Most MPs were not present in the house to vote on it, and most of those who were participated in a Labour-Tory pact to see the bill signed into law. It's called the Digital Economy Act (née Bill), and it's supposed to protect grumpy 'creative' industries - embracing music, film, publishing, software, IT and other manufacturers - from the file-sharers.

The central proposal was originally to disconnect users who were found to have infringed copyright on fifty occasions. This sounds like you would have to be a dedicated file-sharer to fall foul of the law, but a few albums would be sufficient as each song constitutes a copyright infringement. The value of said infringement wouldn't have to amount to much - about £20 - for the law to come into effect.

The language of the legislation now appears to give the government more leeway in determining the scope of Ofcom responses to copyright infringement - they can potentially order ISPs to undertake a range of measures against subscribers, from bandwidth shaping to account suspension. Internet access is, for those who have it, a vital tool for work, communication, political organisation, etc. Most of the world's population who can be polled on such matters say access is a "fundamental right", which I think is reasonable since anyone without access is liable to be excluded from access to the crucial forms of political association, public discourse and economic opportunity that the great majority with access will have. Disconnecting someone is therefore quite a severe response to what could be a minor breach of copyright.

And, although it is assumed that file-sharers - ie, people uploading as well as downloading files - are the specific targets, the language of the bill isn't that specific. So, you could infringe copyright by merely visiting a site that contained images or text that are protected by copyright. And the risk is naturally greater if you find something useful online and decide to download it. Scribd, rapidshare, megaupload, hotfile, depositfiles, 4shared, and similar websites have been designed for the purpose of allowing people to post files online - mostly pornography, I gather, but not all of it in breach of copyright, and not always posted without permission. In fact, such sites are a very useful way for authors of, for example, academic texts that would be expensive to print and publish widely to make their work freely available to the inquiring public. By definition, any site that allows this to happen also allows the opportunity for file-sharers to post and share copyrighted material. The only way to avoid having your internet access terminated, it seems, would be to stop downloading anything found for free online. Which seems to go against the very point of the internet.

Specific online locations can also be blocked in an amendment to the legislation. One effect would be that public web providers, such as libraries and internet cafes, could be forced to take legal action to maintain their right to provide internet access. They would have to prove that they take serious measures to prevent copyright infringement. If these became too costly, the logic would force them to remove internet access.

Law suits designed to force ISPs to block access to subsribers, or block specific locations, could also be vexatious or malicious, designed to protect companies from unwelcome scrutiny etc. More worrisome still, websites like Wikileaks depend on publishing copyrighted materials. All leaked documents are copyrighted. One of the government's responses to Craig Murray's torture memo docs was to say they were copyrighted and had to be excluded from publication. This may not be the aim of the legislation, but the government was made aware of such concerns, and offered no assurances that such uses could not be made of it. Given that the US government now deems Wikileaks a threat to national security, and has been spying on the site (what, because of things like this and this?), it's not hard to see a US-friendly government - a tautology as far as the UK is concerned - using the law against the site.

The forces pushing for the Digital Economy Act look like nothing so much as the Save Schiavo crowd, determined to sustain the dead on life support on the off-chance of a miracle. They would be far better placed thinking up an alternative to the copyright model of production, but instead are trying to hold back the tide with legislation, court proceedings, DRM, etc. In fact, as far as the music industry goes, artists do better in a world of extensive file-sharing - so they should be the last people to be blackmailed into supporting such legislation. It is the record labels, not the artists, who lose out. Yet, the unions representing actors, artists, musicians, etc. almost uniformly backed the bill. To hitch the protection of jobs and incomes for 'creative industry' workers to such standpat, head-in-the-sand legislation was a dreadful mistake.

This law is a hasty ramshackle compromise between conflicting sectors of capital. But it also enhances the power of both the state and private capital to suppress information and the individuals making that information available. Sadly, it coincides with this decision by a US court, which puts net neutrality in some jeopardy. The ruling says that the FCC was without its rights when it sanctioned Comcast for slowing internet access for peer-to-peer file-sharers. In this case, the FCC was supporting "open internet principles", namely that all internet traffic should be treated equally. I don't believe for a second that abolishing net neutrality will save copyright. There are always mirror sites, and there is always encryption. The extent of state interference that would be required to successfully stop the bulk of copyright infringement would be phenomenally expensive, elaborate, onerous, and ultimately death blow to the promise of the internet. But the futile efforts to maintain forced tribute to intellectual property holders (long after the original labour has been paid for and revenues become pure profit, I might add) can do a lot of damage in the interim.