The Digital Economy Christmas Tree

The Digital Economy Bill (DEB) was what is generally known in British politics as a “Christmas Tree”. When it’s decided that new legislation is needed on a complex subject that won’t be debated again for a while, every campaign group and special interest rushes to try to include its particular “present” to hang on the tree.  As with the real Christmas, not all presents are entirely welcome.

Christmas tree bills commonly have hundreds of clauses, many of them completely acceptable but some very controversial, and the DEB (which is now the Digital Economy Act since it’s become law, effective on June 12) was no exception. The underlying objectives were pretty reasonable:

  • More and more public and private services are largely based on the assumption that users have internet access. To avoid digital exclusion of minorities, the elderly, people in remote areas, etc., we need to ensure that almost anyone who wants access can get it.
  • The world economy is increasingly reliant on internet communications and there is a competitive advantage for countries that have a healthy, sensibly-regulated internet sector.
  • There are some genuinely difficult issues on the internet (to take two examples: copyright and monitoring for unacceptable content such as child pornography) which it would be helpful to clarify. Even if people aren’t totally happy with a law, it’s probably better than being unsure what the position is.

What was in the DEB?
The main sections were:

  • Changes in regulation of TV and radio and use of the electromagnetic spectrum
  • Regulations on copyright: how is it infringed, who has the responsibility for spotting infringements, and what happens if you infringe it
  • Regulations on domain name registration
  • Regulation of content, in particular making the European PEGI model the standard for video game classification
  • Switchover to digital TV and radio (all analogue transmission in Britain is being phased out, to free the spectrum for other uses)

Where were the controversies?
Controversy centred on four areas, but in this article I’m going to concentrate on the downloading/copyright issue, which is probably the one of most interest to Swedish readers, whether or not Pirate Party supporters! Briefly, there were also heated debates about video games classification (there was a British-only system run by the TV censorship body and they fought an unsuccessful rearguard action to block PEGI), the speed of abolition of analogue transmission and the way in which photographic copyright is maintained. There was a proposal to create a class of ‘orphan’ photographs for which the copyright owner could not be easily identified: opponents said this would enable commercial bodies to rip off the work of individual photographer, and the clause was dropped before the Bill was finalised.

Downloading and copyright
It is generally agreed in Britain that file-sharing that infringes copyright is a problem:  Britain has large creative industries and it’s not thought realistic to be completely relaxed about large-scale copying and distribution of creative work within hours of its appearance.  Official ‘pirate’ sites attract little sympathy in British political circles. At the same time, nearly everyone knows teenagers who routinely download music or games that they haven’t bought, and nobody wants to see them all locked up in prison. The Bill tried (in my view unsuccessfully) to find a way to get the issue under some sort of control without becoming excessively burdensome.

The basic concept is this:

  • ISPs will be responsible for spotting customers who appear to be using the ISP for repeated illegal downloading (shown, for instance, by regular large downloads from sites known to offer pirated material)
  • Where there is convincing evidence that the user is doing this, the ISP should warn him.
  • If the customer continues in the same way, the ISP may restrict his usage and is required to report it. Court action may follow.
  • If the customer ignores repeated letters and emails asking him to stop illegal downloading, his internet access may be temporarily suspended altogether.

Objections

The two main objections are that this won’t work and that it’d be a bad thing if it did. First, it’s not at all clear that it’s practical. An experienced user can switch between ISPs for illegal activity with great rapidity, while keeping an innocuous “regular” email account for uncontroversial mail. Many ISPs are based outside Britain, and the ability of Britain to enforce its regulations on them is limited. The position or internet cafes and the huge variety of locations offering wifi hotspots is also worrying: would a train operator, for instance, be required to check whether any passengers were downloading copyright material?

Second, the punishment seems disproportionate to the crime. If I knowingly obtain an illegal copy of a movie on a DVD and have it posted to me, it might be appropriate to confiscate it or maybe fine me for receiving stolen goods. But it’s not reasonable to forbid me from getting any post on any subject, even the heating bill or a birthday card from my aunt. In the same way, a suspension of internet accounts directly contradicts the overall direction of the DEB to increase internet access. So I was one of the MPs who voted against these clauses, and we did manage to remove one, which had proposed to give the power to block copyright-infringing websites altogether. (I can see a case for this, but the law was loosely-phrased and could have been used for websites of public interest like Wikileaks.)

However, organised opposition to the measure is weak, as it’s primarily come from young people unused to channelling their views through political parties. Before the recent British election, the Liberal Democrats did oppose the legislation, claiming that they would replace it with something (unspecified) better, but this commitment was quietly dropped when they formed a coalition with the Conservatives.

What happens now?

The regulator (Ofcom) is consulting on how to implement the law, and will publish details by the end of the year. They will be required to report quarterly to the government on progress. The obvious question is how they will expect ISPs to spot frequent offenders, and there is software on the market which potentially can be used by ISPs – see for example the discussion here:

http://www.eweekeurope.co.uk/news/ofcom-prepares-draft-of-copyright-infringement-code-for-isps-6398

Action against individuals is likely to require a court order, making it unlikely that the typical teenager with casual usage is going to be the main target. However, people who deal with illegal copies as part of a business can be fined up to £50,000.

Will any of this make a major difference? Directly, probably not. Enforcement will be too difficult to influence the behaviour of individual users and the serious pirates will continue to find ways around the rules. However, it is a shot across the bows of the most aggressive pirates, showing a willingness to tighten regulation in response to the growth of piracy as a serious business rather than freewheeling internet fun.  It’s unlikely that this will be the last legislation on the subject.

Nick Palmer
Nick Palmer was a Labour Member of Parliament from 1997 to 2010. He grew up in Scandinavia, reads Swedish and has spoken on trends in video gaming and the internet at a recent Stockholm conference.

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  1. Scary Devil Monastery

    ”The two main objections are that this won’t work and that it’d be a bad thing if it did.”

    Very true. We keep saying this. But even when it’s been demonstrated, there seems to be this desperate urge to implement draconic and dangerous interpretations of hastily cobbled-together ”lynching laws”…as soon as it’s the internet we’re talking about.

    On a side note, when a politician actually sits down and learn how IT works, he often becomes a Pirate Party affiliate in action and speech if not in actual membership. The problem, from my point of view, is that nearly everyone who has influence in these matters lacks the ability to predict the consequences of their hair-raising schemes.

    As a little random trivia, in computing, a ”Christmas Packet” is a formatted unit of data with all conceivable options set – usually sent as a way to probe a computer system for weaknesses and information as direct precursor to (or part of) an attack. Can’t help but appreciate the irony in the nomenclature similarities.

  2. Scary Devil Monastery

    On a side note, most of the provisions given in the list above are completely useless or even dangerously misleading. There is no way without actually compromising a user’s data stream (opening the mail without a warrant, as it were) to determine whether said user is contributing to the open source-movement by distributing freeware (Linux/FreeBSD OS, Software packages, etc) which will generate a harder bandwidth toll than even the most hardy downloader…or whether he has a hard drive full of movies which he shares across the net.

    This raises an interesting question.
    Should we go from a paradigm where it is a serious offense to tap the communications of ordinary citizens to one where it is mandated by law that every electronic communication must be tapped and listened to? That, after all, is the only way an ISP can determine what is being sent.

    Particularly so since ”sites known to offer pirated material” do not, by and large, exist anymore. The Pirate Bay and other torrent sites, for instance, only contains hash sums and a forum. The amount of which is such that if you were to download every torrent file on TPB, the amount of data would be containable within a single USB memory. The actual distribution of copyrighted material takes place exclusively between individual users.

    And so, the only possible way to actually implement the law is to turn every ISP into a surveillance agency and monitoring the citizenry in a way the old DDR could not even dream of. It’s fairly obvious that any law which cannot be implemented in a meaningful manner is a very bad law.

    I’ll make use of the common bittorrent-protocol as an example here:
    A user starts his client application (commonly uTorrent, Vuze, BitComet, Transmission, etc) and loads the hash sum he wants to find. The client establishes connections to other users of that client, and an impromptu network is established. Five other ip adresses notify that they have material matching the hash sum, and the bittorrent clients start exchanging data to complete the set of each user.

    In order to ascertain who has down/uploaded what, the common approach is for a copyright holder to enter this network himself, adding a torrent file and participating in the down/uploading process. Thus he gains access to the current ip adresses held by the participants.

    However, an ip adress is not as determinate as a given set of physical coordinates. The best way to describe it is as a postal code issued on an ad-hoc interim basis. A study performed by the University of Washington in 2008 determined that the error rate of using an ip adress to track uploaders was 13%. This error rate goes up sharply if or when a participant ”spoofs” his ip adress – alters it to something else.

    As a result of this uncertainty we have the thousands of cases where in the UK and the US completely innocent people were mailed what amounted to extortion letters – ”Pay 500$ now and avoid a costly trial, or go to court where thanks to current law, you as defendant now have to prove your innocense, as you have no technical means to gainsay our estimates”.

    In the UK the most stunning example was when a pair of old pensioners without any form of computer knowledge received such a notice sent on behalf of the Atari software company.

    Add to this that it has also been estimated that 40% of ”secured” wireless router connections in the western world can be broken into in minutes by way of extremely simple procedures, and you end up with a legal nightmare – there is, quite bluntly, no way to tell if an individual user has been performing the up/downloading, whether his ip-adress has been falsely tossed into the pot, whether someone has piggybacked onto his personal router, or whether his computer has been compromised and is acting on behalf of a third party. Not without a lengthy and costly examination of his personal PC.

    Although the average filesharer will therefore be able to avoid any and all legal unpleasantness simply by being well versed in IT (or in a pinch, being able to follow simple instructions), the average non-filesharer with no IT knowledge at all will be the big loser – the ones to whom the main part of the extortion letters will be adressed.

    File sharing is here to stay, and what we are looking at from a legal standpoint is nothing less than a debacle of the same magnitude as the american prohibition era gone global.

    I’m not saying that every politician swings around to this view. They will more or less automatically do so anyway out of sheer necessity once they study the rudiments of how computers exchange and store information, and how the internet was designed to operate.

  3. Thanks for the comments, Scary. I think the analogy with prohibition is pretty accurate – what killed prohibtion was not that everyone suddenly thought that booze was OK but that they realised it wasn’t working, and was giving opportunities to criminals. We have the same debate on drugs today, of course.

    Note, though, that there is a difference between thinking that file-sharing in unrestricted form is great (which I think is the pirate position) and thinking it’s unfortunately difficult or impossible to prevent (which is my position and that of most interested politicians).

    In principle, of course, file-sharing *is* great – a wonderful way of distributing good stuff to people who’ll appreciate it. But it’s clearly not ideal that if you create anything good, you won’t get paid for it because it’ll instantly get copied. Back in the 80s, I had a computer game published (Their Finest Hour). It got great reviews, and within days there were pirate copies on sale (this was in pre-internet days). I never made much money out of it, and wasn’t tempted to design another. As a way of encouraging creative work, that sucks.

    So to avoid constant hassle from the political sphere, we really need an evolving consensus on a workable alternative. An effective micropayment system with a business model based on playing games, DVDs, and music resident on the cloud could be one way forward, perhaps – but pirates need to get beyond just saying ”ha, ha, that won’t work” if they want to stop polliticians trying to think up new ways that would work.

    Anyway, thanks for the dialogue!

  4. […] more: Torsdagskrönikan: The Digital Economy Christmas Tree « Netopia posted by Editor in Economia, Economia Digital and have No Comments Tags: british, campaign, […]

  5. Scary Devil Monastery

    Thank you likewise for the dialogue. There are a few paragraphs I’d like to however.

    ”…though, that there is a difference between thinking that file-sharing in unrestricted form is great (which I think is the pirate position) and thinking it’s unfortunately difficult or impossible to prevent (which is my position and that of most interested politicians). ”

    You should talk to more pirates. Really, when it comes to ensuring that there is a convenient, expedient, fast and manageable way for consumers to purchase (or offer encouragement/remuneration via micropayments) then you will find that the entire idea first emerged from the dreaded ”Pirates” themselves. It’s why we’re such heavy proponents of Creative Commons and GPL/GNU.

    It’s simply that just like your definition of ”politician” we accept as fact that there just really is no reasonable way or option to reduce file-sharing. That being the case, we embrace it and try to find the ways in which as many as possible in society can benefit. As for the industry which keeps clinging to an outdated model of distribution and commerce which has as much of a place in todays market as a blacksmith does…that will not change voluntarily, or adapt to changing conditions if it is in any way possible to avoid it. Which is we you now have a plethora of legislation awaiting tabling which puts the providers of electronic communication in the professions of DDR’s old STASI.

    A simple strenuous defense of the civil rights of every citizen should suffice for that. The industries who choose to adapt will find new models – and the entrepreneurs who, like Valve Games, Spotify, Piriform, Jaspersoft, et cetera, find a convenient and capable way of running their business will have no problem.

    In a market where millions of people are willing to pay for bottled water at a £ a bottle, and people can make a good living from simply being good blog writers, there is no shortage of paying customers for any commodity. And filesharers in general do tend to spend far more money to support their hobbies and collections than anyone else. So there is a will to pay, and there is also money to pay with.

    An ”evolving concensus” is indeed evolving, but it is not a winning situation for media giants whose ability to make 1000% profit margins from distributing foil-coated plastic coasters, any deviation or opportunity for such a business model is much like introducing the ”Spinning Jenny” to the french weaver’s guild, or offering to translate the Bible into King’s English to the 16th century Catholic Church, enabling even the common man to read it.

    Speaking at last about your personal experience I would like to point out that from the perspective of most organized ”Pirates”, the idea is that file-sharing for noncommercial use is ok. In cases where a product is pirated and sold for monetary gain we suddenly have the option to track and persecute the beneficiary without destroying the civil liberties of bystanders to do so. Money, unlike freely distributed information, is eminently traceable.
    This is at the core of GNU/GPL as well. You can’t enforce limitations on free information. Sales & Support can be enforced, and thus plays on a different field altogether. Micropayments and direct distribution aside, a successful writer of indie games today has the option of reaching audiences he could only dream of in the 80’s.

    We are very far from going ”Ha, ha, that won’t work”. Much of what you’ve been saying in your original adress and your appended commentary we’ve been saying for over ten years already. What we are saying is that it is lunacy to dismantle everyone’s civil rights because a certain type of distributor industry has been renderd obsolete. Which is in the end what this storm in a waterglass in the end amounts to.

  6. Scary Devil Monastery

    …Apologies for the lack of cohesion in certain passages. That argument was cobbled together in five-minute breaks over the working day…

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