Digital Economy Bill – My interpretation

The Digital Economy Bill (DEB) has been suggested by a few sources on the Net. How accurate is this? Who knows, but IF the current government looses the general election how will that affect the bill? Many questions and is now to early to be second guessing?

Over the last few months Ive covered many topics on piracy.  Ive tried to suggest possible alternatives although from what Ive seen the argument falls into two distinct categories, those who wish to legislate with other the top and unnecessarily complex rules/operating polices/legislation and those on the other side of the argument who seem to want a file sharing free for all in the name of freedom of data.

I would ask that people keep with me on this article and ask for one person, just one to justify the file sharing stance (ideally more).  The last article on this subject had over 2000 UIP’s in the first hour of publication, so I know that people are reading it (I also see where the hits are comming from) and yet out of all the incoming hits from pro- p2p sites, not one person tried to put forward a counter.  This article is  yet another attempt by myself to get a better understanding about the pro-file sharing argument which I really can’t see where its coming from.

I have seen the rumoured legislation that is alleged to be passed with the Digital Economy Bill, I offer my interpretation of what is being proposed.

I would stress that none of the information I am quoting has been confirmed and would ask everyone until we get it from “the horses mouth” and its actually in place, to keep an open mind.  The main question I have about any of the proposals would be the upcoming general election and how that will affect this proposal.  That question IMO has yet to be answered.

Before I go any further I should clarify my stance (for those who don’t already know)  I am against the sharing of copyrighted material and believe it harmful to the industry.  I will make the point again later with examples but in the meantime its only fair that you understand I am writing from that viewpoint.  conversely though (which will also be covered later) it is my belief that file sharing has been met with knee-jerk policy, umbrella legislation and a complete ignorance of what is practicable in the “fight”/”campaign” against piracy/file sharing.  I am not for the criminalization of file sharers.  I am not for the three strikes policy nor the possible massive fines your kids could pick up if they downloaded the latest track from Lady Gaga.

The Proposal

So lets start with this link: http://www.boingboing.net/2009/11/19/breaking-leaked-uk-g.html and look at the pointed proposal this site offers in respect of the DEB (digital economy bill)

The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a “three-strikes” plan that costs entire families their internet access if any member stands accused of infringement)

This in my opinion is just  scare mongering on behalf of the site reporting.  The secretary of state COULD instigate the death penalty for file-sharers (with the support of parliament and the removal of a few other pieces of legislation) the secretary of state COULD make file-sharers dress like chickens and run through the streets.  The keyword is COULD, they COULD do a lot of things, lets wait and see what exactly they are.

The Secretary of State would get the power to create procedures to “confer rights” for the purposes of protecting rightsholders from online infringement. (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)

I am not quite sure which world the author of that article lives in, but under current legislation if a record label (for example) wanted to seek civil recompense in a UK court because you were sharing its material, it could simply apply for a court order demanding your ISP to hand over your details.  This is nothing new and certainly not something that is being brought in with the DEB.  If for example a school was allowing its students to share music, a possible suit which saw the school being held accountable would have the same effect and I would challenge you to find a school that would rather appear in court than simply block a URL.  It happens all the time anyway, usually a quick email to the school concerned will have the IT dept blocking that URL.

The Secretary of State would get the power to “impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement” (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright “militias” can be formed with the power to police copyright on the web)

Again, what world has this author been living in?  Read your contract/T&C of your ISP.  They also reserve the right to cut you off under current legislation and have “investigatory” powers already.  I am with O2 broadband, here is a quote from the current terms and conditions  (14.3):

You authorise us to use and disclose, in the UK and abroad, information about you and your use of the Services including, but not limited to, how you conduct your account for the purposes of operating your account and providing you with the Services, for credit control purposes; for fraud and crime detection and prevention and the investigation and prevention of civil offences; or as required for reasons of national security or under law to our associated companies, partners or agents, any telecommunications company, debt collection agency and fraud-prevention agency or governmental agency and other users of these agencies who may use this information for the same purpose as us.
Furthermore, it goes on to say in 14.4
From time to time, we may (without notice to you) review, record or check your use of the Services where we are required to do so to ensure compliance with any laws or regulations or where ordered to do so by any court or other body or authority with the power to require such monitoring, and for our own internal purposes to ensure compliance with the Terms
Correct me if Im wrong, but point 3 of the article linked here, is already covered.

Comments such as “its as bad as it gets” really don’t help any.   Comments such as “declaration of war against free speech” are, in my opinion rather weak.  Let me put this to you:  Recently T-Mobile’s customer data was copied and sold on (allegedly) presumably the detractors to their being copyright legislation, support the cloning of customers personal data?

The three strikes policy (IMO) is a pointless/toothless tiger since firstly ISP’s can already disconnect you (as per terms and conditions) and secondly because the whole implementation/investigation of such a policy would be a logistical nightmare (IMO).  How can you tell if an infringement has been made by little Peter, his friend or his mum and dad.  If an infringement is made by person X at a different venue, who gets cut off?  Who/what does the strike get recorded against? the person or the venue?

Putting that to one side though, the BBC reports a slightly less aggressive approach by policy (and until evidence to the contrary is given) then its just as valid for their view to be put forward: http://news.bbc.co.uk/1/hi/technology/8366255.stm

The plans for tackling illegal file-sharing, detailed earlier this year, will be a two-stage process. Initially the government will aim to educate consumers and, those identified as downloading illegal content, will be sent letters.

If this proves insufficient, technical measures which will include the powers to disconnect persistent pirates, will be introduced in the spring of 2011.

So until we hear the final word maybe its a little too early to second guess however exactly new legislation will manifest itself?

Looking on though, the Open Rights Group has a very detailed (and interesting) blog entry on this issue, this can be found here and it does shed a little more light on what exactly will be introduced.

They mention about a Henry VII clause which in a nutshell enables the creation of new legislation to counter or intercept new technologies.  In response to that point I would add that really that clause would be expected, since there are alternatives to the BT protocol already in development (and have been covered here before) the fact that they want to prevent having to play catchup again is no surprise.

The Open Rights Group refer to the ISP’s as being “piggy in the middle” with fines for non-compliance and they say “even those they gain nothing from the process”  Really?  Has the ORG completely forgotten that the ISP’s make money from the customers who use their service?  Nothing to gain?  How long have the ISP’s used fast speeds to promote sales, whilst not appearing to be overly concerned about file sharing?  I would cite Virgin Media as an exception, since it appeared on one hand to go out of its way to advertise fast speeds, yet on the other hand report/challenge file sharing.  Have the Open Rights Group already checked their own ISP terms and conditions? Might they have already digitally agreed to the same already?

The ORG makes reference to “copyright holders shouldn’t act as cops” to which I agree, although the majority of fines etc that have come about as a result of a user sharing are civil cases and theres an important distinction between civil and criminal.  I would certainly hope copyright holders do not act as cops in a criminal case, but in civil cases I think they are well within their right to police their own material.  Any fines enforced will have to undergo due process anyway since without being backed up by a court they are worthless IMHO.


All aboard me hearties! The penalties that COULD be brought in with regards to piracy are IMO over exaggerated....lets wait and see.

The law as it stands – Goblin’s interpretation

I have to say this before I continue.  This piece is relevant to UK law and is my opinion.  It is always best practice to seek your own independent legal advice if you should find yourself in breach or summoned for anything talked about below.  I would not suggest that my opinions are anything more than that and would welcome a challenge/correction to any of the interpretations I have made.

In my opinion there has been a mass mis-interpretation of the laws surrounding copyright, its civil consequences and/or criminal.  This misunderstanding I believe is on both sides.  Firstly on behalf of the government where they, IMO fail to consider the consequences tackling the issue at a customer level with such a heavy hand and also on behalf of the user, where they seem to read a piece of legislation and run screaming “war on freedom of speech” and such like.

I have repeatedly said (and apparently it hasn’t sunk in) that in respect of criminal law (forgoing any issues of indecent material etc) there is no remit within UK criminal law for the mere act of downloading copyrighted material.  The issues can arise when users share.  If you think about it for a minute, most of us engage in something similar to downloading copyrighted material every day, when you record coronation street, or Back to the Future 3 off TV to watch later.  Now correct me if Im wrong, you don’t own the IP rights to either, yet you are storing it on a medium for later use.  Just because the material is on TV makes it no more or less “copyright” than say Harry Potter 20 that hasn’t been released in the cinema yet.

Now applying a mere download to a civil case, if you haven’t shared material, its likely a case could only hold you accountable for the cost of that product (if at all) now tell me, is Warner Bros going to take you court for the price of one copy of Harry Potter?  I shouldn’t think so.

This is why I said before that the legislation as it stands is wholly inappropriate to tackle the downloading of copyrighted material.  Sure P2P could be “outlawed” or “policed” but when no sharing is involved what happens to the Newsgroup Binaries?  The original source may be held to task for putting it on the server, but what could be done about the downloaders?  I’d suggest nothing.  Same goes for IRC.  Since the “share” only occurs with the person sharing the data, all the downloaders would not be covered under legislation since they are not sharing anything.

Currently, unless Im mistaken Copyright “rights” include adapting, distributing (either electronically or via other means) selling, renting etc.  Where are the “rights” for a downloader from a .binaries?

Compulsory licensing of ISP’s

The “answer” that I have suggested previously, takes away the nightmare of investigation, takes away the criminality/restriction on the user and makes the ISP’s directly responsible.  I would like to see a system where ISP’s are licensed in a similar fashion to a public house/liquor license.  Ask yourself this, if a pub is repeatedly causing problems because of its customers, is it not the landlord/landlady who is ultimately looked to to provide a solution/resolution?  Things like the restriction of sale of alcohol (which by the way its an offense to sell liquor to a drunk person) upping of age limits, earlier closing time.  If a landlord/landlady cannot show they have taken reasonable steps to tackle the issue they can lose their license.

As anyone who has looked at a BT swarm, the harvesting of IP’s is rather simple.  But by holding the ISP, not the user responsible then it would be far easier for anyone with an interest in the material to solve the issue.

An ISP could easily block all the known BT sites (both private and public) and this would eliminate a massive amount of file sharing overnight, simply because I don’t think the vast majority of BT users would have the first clue in how to circumvent that (and maybe explains why IRC/NG’s never saw mainstream popularity as their operation is more complex than BT or similar)

This is where I see the problem occurring. Providing that legislation is not passed that either adds to or changes the copyright theft Act then I fail to see what could but done if these “remedies” cause a mass migration to IRC or NG binaries, this is the problem.  In my opinion the entertainment industry and the government have neglected the technological implications on the industry to a point where now they a desperately trying to play catchup with over the top legislation.

The answer to this needs to be kept simple.  ISP self regulation by licensing is, in my opinion far more of a simple solution that prevents the end user from being cut off the internet, the subject of an incomplete or incorrect investigation and maybe more importantly criminalization.

Counters/arguments/reasons?

Since a pro-file sharing opinion has never really been represented here by any reader, I will put some of the comments which I have seen used to justify file-sharing.

1. “A survey showed that file sharers spend more on music than those that don’t file share.” – Lets say for one minute that we believe a survey where the respondents that file share are actually telling the truth and not just saying it in order to further the pro-sharing cause, how can they answer for the people who they share material to?  This counter is, in my opinion unprovable since its like trying to measure the amount of crime a CCTV camera has prevented.  Its impossible.

2. “Data should be free for everyone, you cannot “steal” data”.  In respect of “steal” its maybe a bad choice of words.  Theft according to Sec(1) of the Theft act states – To dishonestly appropriate property belonging to the other with the intention of depriving the other of it. Since the data is not being “taken” more duplicated, I’d suggest that in respect of file sharing “theft” is a bad choice of words.  Maybe a “loss of revenue” type offence wording would be more relevant?  In respect of the free data for everyone, I ask file-sharers to comment on the duplication of personal data from the recent news report of T-Mobile.  Should that data be free too?  If all data should be free then surely it applies to ANY data?

3. Companies make enough money as it is, they shouldn’t complain”.  – In respect of titles such as Harry Potter, I don’t think it can be argued about the massive revenues it generates even with file sharing, but thats not really the point as you can’t put all file-sharing under the same umbrella.  What about the bedroom coder who releases software to make a little money for him/herself?  should their work be distributed?  I would like to cite an example here “Crayon Physics” is a game made by a chap who is not a mult-national company.  I don’t suppose he has a private jet or holds shareholders meetings, yet even though his work is sold for a small sum, it is still distributed on a massive scale on BT trackers.  Are file sharers saying “Its ok to file share that which we deem has made enough money”? – I’d suggest not, and if you want to justify file-sharing its either all or nothing.

4. “Blocking sites is an attack on free speech, its a breach of human rights!” – Unless I am grossly mistaken the Human Rights Act is secondary to the law of the land.  Like it or not blocking sites needs to happen and we cannot live in a society without censorship (IMO).  For those thinking that there should be no blocking/censorship I would ask your opinions on a site displaying indecent material.  Should users be allowed to see that under the umbrella of free speech?  What about sites promoting hate about faith/sexuality? should we really have those too?  I’d hope the majority of people would agree with me when I say that racism/sexism/homophobia should be removed as should anything which falls under the banner of indecent.

These are just some of the counters Ive read by people trying to justify their actions.  If you have any more, I’d really like to hear them.

Finally…

I sometimes wonder about the society we live in.  File sharing after all is the sharing of material such as games/music/film which really at the end of the day is not critical to our daily survival.  I would agree that the pricing can be high but then as an adult if I believe something is too expensive for what it is I either don’t buy it or wait until it is reduced.  A good example was a recent film.  When it was released on DVD I considered it far too much money, so I merely waited until Blockbuster offered it ex-rental and bought it for a significantly reduced price.  If people disagree with pricing, why can’t they simply wait?  Are movies/music/games that important in their lives that they must have it now and preferably for free?  I can understand this of a young person, but an adult (which apparently accounts for much of the file sharing community) really?

Sources of further information

http://www.boingboing.net/2009/11/20/britains-new-interne.html

http://news.bbc.co.uk/1/hi/technology/8366255.stm

http://www.boingboing.net/2009/11/19/breaking-leaked-uk-g.html

http://torrentfreak.com/european-commission-no-3-strikes-without-judicial-oversight-091124/

http://www.openrightsgroup.org/blog

Goblin – bytes4free@googlemail.com

8 Comments Add yours

  1. openbytes says:

    This was an automated article due to me being ill and spending most of the day in bed with manflu. If I don’t respond immediately, Im sorry….im still feeling sorry for myself.

  2. Chips B Malroy says:

    Hey, I hope you get well soon Goblin.

    Can’t really comment on your laws over there, but ACTA is worrisome. We have seen so much loss of freedom here in this country, and ACTA will be a mistake. My understanding of it, it will impose jail time and elevate penalties beyond what they already are.

    Now using windose without a valid license is wrong, so is infringing. There is enough “wrongness and greed” on both sides of the issue.

    What really concerns me is the numbers of people that are doing this. Not sure where I red it, but I think one article claimed that up to 30% of the populations was doing it. Although that seems like a high number to me, the question remains, is the gov going put all these people behind bars? Is the taxpayers back going be broken by paying for more prisons? In this country we have the highest percentage of our population already behind bars of any western industrialized country, with the possible exception of Russia, which I think we have finialy surpassed. The prison system here is commonly called the prison industry. Some states have sub out their prisons, or some of them, to private industries to run.

  3. Chips B Malroy says:

    A related, but unrelated news article today:
    Lawyers target thousands of ‘illegal’ file-sharers (in Britian)
    http://news.bbc.co.uk/2/hi/technology/8381097.stm

    1. openbytes says:

      Yeah I saw that link! Thanks! Are you on GoogleWave yet?

  4. Interesting enough says:

    interesting posts.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s