Flying in the face of reason, evidence, society, human rights, Europe and the conclusions of its own Digital Britain report, the Government yesterday announced legislation to disconnect from the Internet anyone accused of copyright infringement online.
No, that isn’t a typo, you read correctly: accused. Not guilty. Accused.
There’s more: today Cory Doctorow claimed on his blog that the Digital Economy bill, to be published tomorrow, will include measures to grant its sponsor Lord Mandelson (and his successors in future Governments) unlimited powers over the data that flows across the Internet and our access to the network:
What that means is that an unelected official would have the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright. Mandelson elaborates on this, giving three reasons for his proposal:
1. 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).
2. 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).
3. 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).
These proposals are wrong on so many levels it makes my head spin. I wrote to my MP, Richard Caborn, to express my anger and frustration when Lord Mandelson ripped up Lord Carter’s report back in August. Since then the Open Rights Group has been leading the campaign to put across to Lord Mandelson and MPs just how disproportionate, ineffective and morally bankrupt these policies are.
“Three strikes” – also known as the music-industry euphamism “graduated response” – won’t benefit artists and it won’t prevent copyright infringement. It’s a collective punishment that will deprive families and businesses of access to the most important and revolutionary invention since the printing press. It’s like cutting off your electricity supply for inviting your neighbour to come round and watch the match on your TV.
The way to support artists while disincentivising copyright infringement is to provide blanket licensing on non-discriminatory terms – just like the way radio stations license the music they play. Then businesses could build and sell access services, such as Spotify, on a competitive basis. These would be more attractive to fans than bittorrent and would mean artists and record labels would get their share. It’s within the power of record labels to do this – so why don’t they?
Here’s a copy of my letter, which was adapted from Glyn Moody’s letter, and which I hope will inspire you to write your own.
I am writing to express my frustration and disquiet at the Government’s policy U-turn on the issue of copyright infringement on the Internet.
Over the last fifteen years I have watched the Internet grow from academic curiosity, through being a geek toy, beyond commercial medium and into part of the critical infrastructure of nations. Vivian Reding, European commissioner for information society and media, said recently that Internet access is a fundamental human right in Europe.
The government is now proposing to deny this right to anyone accused of copyright infringement, flying in the face of reason, evidence and the art of the possible.
Lord Carter and his Digital Britain team recently spent many months assessing evidence from all sides of the copyright debate. This work concluded that denying Internet access on the basis of alledged copyright infringement would be disproportionate. My view is that it would be no more just than cutting off people’s electricity supply for watching television without a licence.
The Digital Britain report acknowledged the complexity of the issue by recommending a cautious approach to be introduced over a number of years in consultation with both the public and the various affected industries. Given that the report was initially accepted by the Government, why has it now abandoned this position in favour of one biased strongly in favour of a single stakeholder group: Hollywood and other major rightsholders?
Another issue that concerns me greatly is the fundamental disregard for due process that this policy represents. How can the Government justify denying people access to the most important communications medium of the 21st century without even giving them the chance to defend themselves in court? Why does the Government believe it’s right to facilitate the vigilante justice of multinational media corporations, who want to bend our legal system to their own commercial ends, and who have in the past succeeded in extracting (sometimes extorting) fines from individuals on only the most flimsy of circumstantial evidence?
Yet another issue is that the proposals won’t work from a technical viewpoint. Savvy infringers will start encrypting their traffic. They will write programs to circumvent the detection methods employed by ISPs and millions of others will download these programmes. Others will simply buy a few huge external hard discs – ones able to hold a quarter of a million songs cost around £50 these days – and swap files in person when they visit their friends.
Lastly the idea is at odds with European legislation. Amendment 138 of the Telecoms Package currently being finalised in Europe forbids the cutting off of users without judicial oversight. And that’s even before the ISPs start taking legal advice on other ways in which it breaks relevant laws. Moreover, the European Court of Human Rights would probably have something to say about legislation that allows a “fundamental human right” to be taken away so easily.
For all these reasons – assuming this is truly a consultation and not just another rubber-stamping exercise – I urge you to join your colleague Tom Watson in representing to Lord Mandelson and Stephen Timms my views and those of others who may write to you on this subject. I would also be interested to hear your thoughts on the matter.