My objections to the Digital Economy Bill

This is pretty much a riff on what I posted yesterday, only this is my draft for how I intend to present it to my MP tomorrow. I have no idea how much time I’ll have, nor how receptive he’ll be. This may all be a big waste of time, but just in case, this is my plan, such as it is.

If you think any part of this is idiotic, or that I’ve misunderstood how the relevant bits of the Bill work, or that I’m belabouring some points at the expense of other, more important ones, then I’d really love to hear about it. The last thing I want is for some stupid part of my argument to undermine the other parts of it.

The Digital Economy Bill
http://www.publications.parliament.uk/pa/ld200910/ldbills/001/10001.i-ii.html

I want to clarify at the outset that I absolutely support the importance of copyright law, its enforcement, and give my full support to the expectation of artists to be remunerated in a market-driven manner. I do not want the following arguments to be confused with those which suggest that copyright should be abolished, or everything online should be free.

(This bit is my attempt to establish some credibility and rapport. In reality, I think copyright, although sound in principle, is sorely in need of substantial revision, namely it should be much shorter in duration, should have larger and more explicit exceptions, and should require pro-active registering and renewal by the rights holder. But those concerns are orthogonal to the Digital Economy Bill in its current form, and raising them here would only confuse the issue.)

As a computer programmer, I am directly affected by illegal downloads. Almost everything I have created professionally has subsequently been available online for illegal download – affecting my own income and the financial viability of my employers, such as my current small technology start-up. (This is not entirely true – some military projects I have worked on have not suffered any piracy, due to having, shall we say, extravagant hardware requirements)

However, even with that background, I still have strong objections to the sections of the bill 4 through 17, which attempt to redress the harm done to the creative industries by the elimination of illegal downloading.

I believe this pursuit of illegal downloaders comes with problems that are so profound as to make this portion of the bill counter-productive – and I believe that a superior alternative course of action does exist, that would be of substantially more benefit to artists.

The problems as I perceive them are:

1. Disconnection affects many innocents.

Regarding the Obligations to Limit Access described in section 11.

Almost every internet connection is used by more than one person. For example family members, or independent parties in a shared house.

Disconnection of persistent illegal downloaders will therefore impact all these other users of the shared connection. The innocent users disconnected by this legislation will greatly outnumber the illegal downloaders being targeted!

This similarly also applies to the other, lesser remedies described by section 11, of affecting service speed or access to particular materials.

This is flagrantly unfair – a whole household of innocent people are being punished because of the actions of one guilty person.

Infringing downloads may not even have originated from a resident of the house. They could easily have been made a dinner guest – very possibly without the resident’s knowledge, and yet they are to be collectively punished for it. Are hosts expected to prevent this by searching every guest to their house, demanding guests hand over their phones and other devices?

This idea is equally problematic when considering publicly available internet connections, such as at libraries, airports, coffee-shops, etc. Are they to be disconnected when one of their customers infringes?

My conclusion: Disconnection and the other remedies described in section 11 are not, under any circumstances, appropriate courses of action, even for the most egregious offenders, and more conventional remedies should be considered instead.

2. Impossibility of distinguishing guilt from innocence

Several times a week, I routinely download many dozens of online media from my home collection, to wherever I happen to be at the time – the office, at a conference, travelling overseas. These are on the whole media I have previously bought – music or movies or computer programs or games. I have ripped these legally purchased items to my computer precisely so that I would have the freedom to move them geographically, and to format-shift them from one device to another.

To any external observer, these downloads are indistinguishable from an illegal download. Copying of the exact same songs is involved in each case. The external observer cannot know that I have already bought the music or movie or whatever in question.

If I were accused of illegal downloading under this law, which I apparently would be on a very regular basis, then would have no way of defending myself against these false accusations. I cannot produce proof of purchase for all of the media I have purchased over my whole lifetime.

If it came down to producing the physical media as evidence, such as CDs my songs came on, then of course many of my songs were purchased online, and the CDs I bought years ago were discarded as soon as I had ripped them, in celebration of my freedom from the constraints of physical media.

Similarly, my accuser, upon whom I believe the onus of proof should lie, cannot prove the negative (that I never bought the media in question.) So it is impossible to distinguish the guilty from the innocent, and

3. Chilling effect

The presumption of guilt inherent in the Bill will clearly have a chilling effect on my personal use of the internet as described above. The raison d’être of the internet is to facilitate the copying of information from one place to another, and yet my perfectly innocuous desire to use it for exactly that is, in this instance, prevented for fear of me being tarred with the same brush as illegal downloaders.

If this were the full extent of the chilling effect that the bill will have, then it is arguable that this is a regrettable but acceptable collateral damage in the struggle to recompense artists. However, this is not the only action that is chilled by the Bill’s presumption of guilt.

TODO, this section is weak, and represents what I think is the most important problem.  At the very least, more compelling examples are needed here

Artists exchanging material while collaborating on a project, or or someone downloading music that they themselves wrote, or business model that involves copying media from one place to another, all would be under risk from invoking the penalty of ‘illegal downloads’, and will be prevented from occurring.

Personal freedoms and business models of both the present and the future will be inhibited by the presumption of guilt that the pursuit of file-sharers requires.

This is, to my mind, the most serious of all the problems with the Bill’s pursuit of illegal downloaders. Instead of stimulating the digital economy, these measures seem to me to stifle it, by pandering to the wishes of existing special interests, at the expense of personal freedoms and the emerging business models of the future.

4. No provision to clarify the legality of innocent use

It is disappointing that the bill does not take the opportunity to make actions which are both common and morally justifiable clearly and explicitly legal.

I am thinking here of actions such as my space-shifting of the files I own, as described above, and of format-shifting between different devices.

These actions do not in any way represent a valid ‘lost sale’, and have absolutely no negative effect on the content industry’s business, other than countering unreasonable attempts to force consumers to purchase the same media several times over.

Removing the uncertainty about these actions would free individuals from the lurking threat of frivolous prosecution over harmless activities, and would foster innovation by giving business some guidelines about exactly what is allowed.

5. Intrusive state monitoring of everyone’s online actions

I strongly object to the notion of the ISPs, acting as representatives of the State, monitoring every single action that I and my family and my friends carry out online. It is ripe for abuse, for the information falling into the wrong hands, and for leaving me under suspicion due to clerical or other errors during the collection or storage of the data. It is absolutely unacceptable to me.

6. Lack of substantive evidence that artists income has really dropped

As stated initially, the goal of ensuring artists are suitably remunerated for their creations is a laudable one, that I fully support.

Crucially though, the purported losses incurred by the music and movie industries are commonly derived from flawed studies, directly funded by the industries in question, and frequently make fundamental mistakes such as equating every download made with a lost sale. More substantive information than this is required about the size of the problem.

Indeed, some figures show that the music industry has in fact grown very healthily in the last few years. For example, these figures compiled and published by The Times on 12th November 2009, based on the BPI’s own data:

http://labs.timesonline.co.uk/blog/2009/11/12/do-music-artists-do-better-in-a-world-with-illegal-file-sharing/

This suggests that since 2004, recorded music incomes in the UK have fallen by some £326M. Whether this is due to illegal downloading is not known – presumably it is partly due to that, and partly due to other factors, such as the music industry putting out fewer records in recent years. However, the same figures also show that over the same period, income from live music and merchandising have risen by the larger amount of £373M. The industry as a whole is around £47M better off, and as a bonus, the proportion of this income which is paid directly to artists has risen dramatically, since artists make more money from live shows than from recorded music sales.

This fits with my own personal experience – free downloads act as a tremendous promotional boost for bands. I have many friends who are able to try out far more music as a result of its availability online, and as a result are far more active in attending live music events, often of bands they would not otherwise have heard of, had they not discovered them online.

If this is true, then free downloads cause artists to lose money via recorded music, but also to gain more in recompense through other channels. In this case, do we really need heavy-handed legislation to protect their interests, if the legislation in question comes with all the other costs described here? If artists really are earning more than they were five years ago, do we need to introduce the chilling effects this bill will cause on the rest of the economy in order to try and help them out? What if the pursuit of illegal downloaders means that revenues in live music then drops back to their previous lower levels? Artists will have actually been financially hurt by this bill. This needs to be understood before taking such drastic actions as the bill proposes.

7. One alternative

TODO: Lay out the “central pool to remunerate artists in proportion to their number of downloads” idea, merely to make it clear that there are alternatives courses of action which could be used to tackle this situation, which seem to come with real incentives to stimulate the digital and creative economies, and with smaller, more soluble problems than Digital Economy Bill in its current form.

3 thoughts on “My objections to the Digital Economy Bill

  1. I have to question your comments.

    1. Disconnection – Where is the proof that more innocent users will be disconnected than guilty ones? Given that there is an appeals process for any disconnection I cannot see who this will be the case.

    2. There is technology used today that can distinguish between copyright protected and non-protected material. It works and is in use.

    3. There is no presumption of guilt.

    I can go on with each point you have made. It is not very well thought out and shows an ignorance of the act being proposed.

  2. Hey Tom,
    Thanks very much for that – your questions are good ones, but I believe they also have good answers. :-) Thank you for showing me that I have failed to explain myself very well.

    1. My idea that more innocent users will be disconnected is because disconnecting an illegal downloader will also disconnect everyone they live with. Their family, or shared housemates. Most internet connections are used by more than one person. Therefore, the number of innocents affected (family members, housemates, etc) is actually larger than the number of disconnections made.

    2. You are right that detecting that a work is copyrighted can be done. However, that is not sufficient to detect that copyright infringement has taken place. In lots of instances, a copyrighted work is copied from one place to another in an entirely legal and/or morally justifiable sort of way. My example of my own behaviour – copying files I own from one location to another – was meant to illustrate this. The exact same files are being copied around as when illegal downloading takes place. But in that instance, I am doing nothing wrong – these are songs I have already bought.

    Other important examples are the exemptions to copyright, such as fair use, etc.

    Importantly, then, determining whether someone is illegally downloading cannot be done purely by looking at the bits travelling down the wire. It requires more context than that to determine whether a particular download is legal or illegal.

    In my opinion, this legal copying represents all of the business models of the future – and we are eliminating them at a stroke, to try and protect the business models of the past.

    3. The presumption of guilt comes about because of the above. All downloads of anything that is copyrighted are presumed by the bill to be illegal, and will ultimately result in my disconnection – regardless of whether I actually have the right to copy the work in question or not.

    The appeals process you mention does not help, because it is impossible for me to prove my innocence. How am I supposed to do that? As I stated, I have not retained proof of purchase for every media item I have ever purchased in my entire life. Surely the burden of proof should, as is traditional, lie on my accuser – it is up them to prove that I *did not* ever buy that CD. They cannot prove that negative statement, so it is impossible to distinguish the guilty from the innocent.

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