I’ve been concerned for a while about the Digital Economy bill. So concerned that with a little encouragement from the Open Rights Group, I’ve been writing to my MP, John Denham (JD from now on). He’s from Labour, and is currently Secretary of State for Communities and Local Government. While I may not agree with his party’s policies, I’d like to start this post by applauding him for doing a great job of representing his constituents. Without him, I wouldn’t have anything to write this post about.

So, this all began with me sending an email to JD about the Bill, outlining some of my concerns about it, mainly focused on the provision to disconnect users accused (not convicted) of file sharing, and the introduction of reserve powers allowing the Copyrights, Designs and Patents Act (CDPA) to be amended, in order to (in JD’s words) “allow the Government to tackle quickly any misuse of emerging technologies for copyright infringement and provide element [sic] of future proofing.”

I sent a reply to the initial response I received, and yesterday received a copy of a response to my queries from Stephen Timms. I’d like to look at some key points of that response here, as I think they make some things abundantly clear about the nature of this bill. I’ll take very good care not misquote or take any of this out of context. I’ve added some emphasis to make the key points stand out:

The first point I would like to make is to correct Mr. Johnson’s understanding of our aim. We do want to bring about a reduction in on-line copyright infringement, but do not want to mate it easier for copyright owners to prosecute alleged infringers.

Rather we want to bring about a shift in consumer behavior from the unlawful to the legal, and the deterrent to back up the educational message is a means by which the copyright owners can take targeted legal action against the most serious infringers.

I think that this pretty much covers the crux of the issue. The problem that the Government’s faced with is essentially a black market. There’s demand for a product (media available over the web, without DRM, at a reasonable price), but no supply. When you have demand but supply is illegal, you create a black market. Another example of this is the industry for recreational drugs.

The Government’s solution to this problem is to make people stop wanting the product. However, they don’t seem to have made any suggestion that they might do (in my view) the sensible thing, and encourage the entertainment industry to provide the product that’s being demanded. This would not only satisfy the consumers, but bring about a tidy profit for the industry from a sector who’s currently giving them nothing. I’m sure industry spokespeople would say that file sharers are costing the industry money, but can you seriously expect me to believe that every person who downloads a film would have paid £8 each to see it in the cinema if they couldn’t? I know people who downloaded Avatar, and yet it made $2 billion dollars in 7 weeks. Now, I bet I can find a fair few of those downloaders who’d happily pay a few quid to download the movie in decent quality, so they can watch it a couple of times on their TV. They might even buy the DVD later on so they could get the extra features. Am I missing something here?

Next, with regards to the “technical measures” (the power to disconnect or throttle bandwidth of those accused, not convicted, of filesharing):

We are all too aware of the issues surrounding wireless hi-jacking and indeed other measures such as use of proxy servers or the like to avoid detection. We have always accepted that there will be a hard core of infringers who will be hard to stop. We also realise that it is possible for these evasive activities to point towards the innocent neighbour, although in truth their is no indication that this will be anything other than the exception.

I wonder if there’s any indication that this won’t be anything other than the exception? I can’t believe that they interviewed filesharers, and when asked “Would you use someone else’s network to avoid detection so you can avoid our measures” they said no.

This paragraph sums up quite nicely that it’s pretty futile trying to stop people filesharing altogether, just like it’s futile trying to stop people in Iran speaking out against the election results online.

…we would accompany any technical measures with a two-stage robust appeals mechanism including an appear to a 1st Tier Tribunal, which is a judicial body. No measures will be applied without the appeals process having been exhausted.

This made me feel a bit better at first, but then I read a quote from the Open Rights Group, which I think counters that point very well:

Appeals are not the same thing as ‘due process’. They circumvent a priori requirements to test the evidence. Given that severe punishments are being suggested – and the evidence may be flawed – there is a fundamental obligation to presume innocence and test the case. Due process is more important when dealing with new fields of evidence and misdemeanour, not less.

Finally, regarding the CDPA:

The bill itself makes very clear in Clause 17 (7) that: “The power does not include the power to create or modify a criminal offense,” and is strictly limited in its scope. Furthermore, this power would only be used after consultation with stakeholders and the public, and with approval of both Houses of Parliament via the “super-affirmative” procedure which involves a very high level of scrutiny.

So, it can’t change any offenses, and it needs to go through both Houses, but it’s obviously preferable from the Government’s point of view to having to put a bill forward to amend the CDPA. I don’t know enough about the super-affirmative procedure to fully understand why, but it doesn’t help quell my fears.

In general, this letter makes it pretty clear to me that this bill is not in the public interest. It’s in the interest of an entertainment industry whose business model is stuck in the 1990s and who are very happy about it. An industry who won’t move with the times is bad for consumers, and shouldn’t be protected by legislation like this. If you think your MP will vote for this bill, let them know you wont be voting for them.