Will the Digital Economy Bill Undermine our Basic Rights?
The Digital Economy Bill is about to be passed in the UK Parliament with almost no proper debate by MPs. This bill will allow a whole host of legal actions, including disconnection, to be taken against home and business internet users purely on the basis of an accusation. Should this bill, which was proposed by the BPI, a body representing commercial interests in the music and entertainment world, be allowed in a democracy?
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Punishment Without Trial is Immoral, Even Illegal
Since the bill will force internet service providers to disconnect customers accused of copyright infringement, or other unproven offences, even if they themselves have not committed an offence, the bill is basically circumventing the individual's right to face trial. This is a fundamental tenet of a modern democracy, and alone in itself should be enough to get the bill thrown out.
Drawing parallels with other crimes is not valid for several reasons. Firstly, other crimes are investigated by and acted upon by the police, not by service providers. An equivalent situation might be an ISP noting massive increases in illegal downloading on a particular account, then informing the police (or even perhaps other legislative body) who would then properly investigate, then finally upon discovering reasonable proof, charge the individual(s) concerned. Thereafter an individual has a right to stand trial. Remember the burden of proof, also remember that as it stands the bill would make the owner of the connection responsible. Imagine if owners of commercial spaces were made responsible for offences committed there, it would be chaos. Of course businesses make reasonable efforts to protect themselves and their customers in the physical world, but they won't be able to do that in the virtual world with their internet connections with this bill formulated as it is currently, since the risk of disconnection, or suspension as it is sometimes cynically termed would be too high.
Furthermore it should be noted that sharing files and collaborating on interactive music and creative media projects is NOT illegal. How exactly is an ISP going to be able to establish, in a nodeless p2p sharing network, whether what the connection owner was sharing was their own content? Answer: they won't - so the default action will be; accuse and disconnect, then spend months arguing about it, all of which costs money (cost passed onto innocent consumers in all probability), before finally giving it up, or worse obliging the innocent customer to pay a fine for a crime they haven't committed.
We live in the real world, not some fantasy world where we can magic up answers to very complex technological questions without proper long term investigation and parliamentary debate, simply because those with a vested interest in copyrighted media are happy to see our rights undermined. The revolutionary changes that are allowing billions around the world to share and collaborate legally are under threat because of the ignorance, self-interest and total lack of vision of a select few.
We have to have effective means to punish wrongdoers. We do arrest people whilst they are being accused, they then later have a trial where they have the opportunity to prove their innocence. The digital bill is enforcing nothing different other than the electronic version of this. People will have their internet usage curtailed upon accusation just like people have their freedom curtailed upon accusation. Later these people will have the opportunity to reconnect to the internet should they prove their innocence.
The Bill Will Not be Debated Properly by MPs in Parliament
You would think that a bill which is going to threaten the right of an individual to go to trial before being punished would be one which MPs would closely scrutinise. Not so, according to a memo leaked by the BPI, a group who represent the media and entertainment industry (who also, incidentally, lobbied for the bill to be made law in the first place);
"[MPs] will have minimum input … from this point on. … John Whittingdate MP [DCMS committee] … has said this week it [the Bill] could be lost if enough MPs protest at not having the opportunity to scrutinise it. Whist true in constitutional terms, the hard politics of the situation makes it seem unlikely … Come the week of 29th March the main political focus is likely to be on the … Budget"
The bill was created by an industry lobby group and they have essentially said that it should (and will) be rushed through Parliament without debate.
The Bill WON'T Protect Artist Copyright
Due to the fact that it is actually extremely easy to prevent an internet service provider from knowing what you are doing on the internet, by using either a secure VPN (virtual private network), anonymous proxies and/or nodeless p2p sharing, the bill will not actually help to protect artist copyright.
These are only a few of the current obfuscation methods available, and there will be more in the future, so it is highly unlikely that demanding that internet service providers (ISPs) disconnect customers without trial will prevent their customers from illegally sharing files since the ISPs won't be able to decipher the encrypted data of their customers in order to establish what they are up to.
It is also a very important matter of debate as to whether an ISP should even be allowed by law to analyse the open (unencrypted traffic) of individuals who they have no particular reason to suspect of a crime. They aren't police, so why are they being asked to do the job of the police?
Regardless of what your stance on copyright is, a bill which removes the basic right to trial of the individual definitely should not be made law, especially when what it seeks to achieve is technologically nearly impossible anyway.
It's not being suggested here that the law protecting copyright is wrong, rather that the law forcing, (amongst many other things), ISPs to act as law enforcers, is wrong.
To continue the 'other crimes' analogy - in the context of this bill, it would be like making supermarket chains responsible for monitoring the sale of bolt cutters because they might be used by burglars, then hitting them with a fine or worse if it could be shown that x number of bolt cutters were bought in their store, and that they'd done nothing about it - and it would be far, far easier to monitor the sale of bolt cutters than monitor encrypted data in a world wide network of 2.25 billion users!
Aside from all the above which only deals with one aspect of this bill there remains the whole question of provisions contained in Clause 43 (previously known as Clause 42) which will greatly affect many small rights holders and in particular anyone who takes a photo, whether casual, enthusias,t amateur or professional by licencing commercial use without their consent:
Until now, if someone found one of your photographs and wanted to use it commercially, they couldn't without first asking you. Clause 43 changes all that by allowing the use of “Orphan Works” - photographs, illustrations and other artworks whose owners cannot be found.
Clause 43 says that if someone finds your photograph, wants to use it and decides that they can’t trace you, they can do whatever they like with it after paying an arbitrary fee to a UK Government-appointed “licensing body”. You’ll never know unless you happen to find it being used in this way, in which case you might be able to claim some money.
There’s more. Clause 43 also introduces “Extended Collective Licensing”.
This means that if someone finds your photograph and can trace you, they still don’t have to contact you for permission to use it. They can go to a UK Government-appointed “collecting society” and ask them instead. They’ll pay an arbitrary fee and be able to do whatever they like with the photograph. Your photograph. Again, without asking you first or paying what you would have charged.
THE PROBLEMS IN DETAIL
• removes the right of each individual creator and copyright owner to market their work to the clients they choose, for the uses they choose, at the price they have set
• In so doing it destroys any guarantee of exclusive use, and
• It breaks the contractual ties between models, their agencies, property rights holders, photographers and clients, because
• images will be used in ways that rights holders would have forbidden, had they known beforehand
• It says that images can be declared orphan after a "diligent search" for the owner without recognising the practical impossibility of such a search
• It proposes that images should be licensed at "the market rate" while ignoring the impossibility of determining such a rate for any specific image
• It proposes a scheme for managing orphan works that is not limited to orphan works
• Extended Collective Licensing tries to solve an imaginary problem. Current licensing practice for copyright works is not over-complicated and does not require simplifying. Except in the most exceptional circumstances it is not true that users of copyright material cannot be required to clear rights individually. Mandatory moral rights assertion would facilitate picture licensing as it does in Germany
• It makes no distinction between "cultural" and other exploitation of works
• It breaches UK commitments under international copyright and trade laws
• It entirely fails to recognise that the owners of "orphan" works may not be UK-based, but based in places such as the USA which have a strongly litigious culture, and therefore
• It exposes licensees of works declared as orphans in the UK to litigation from their foreign owners
• It contains no mechanism to irrevocably establish copyright in a work via mandatory attribution; or to prevent deliberate orphaning, and no effective sanctions against those who so do
• No consideration has been given to the necessary practicalities to underpin the legislation
• It could have a strong chilling effect on the UK ad industry as multinationals shun UK agencies, photographers and shoots because we will no longer be able to guarantee exclusivity (our work can be orphaned and used by others beyond our control) and those multinationals seek to avoid their campaign assets becoming orphaned
• ITS REGULATIONS ARE TO BE ENACTED IN SECONDARY LEGISLATION WITHOUT PROPER SCRUTINY OF THESE PROBLEMS BY MPs.
The fact that some people will be able to obviate the law by using encrypted networks is not a reason to not enforce such a law. The same argument would not be made with other crimes. We should not abandon tax laws because some people are able to swindle their way through loopholes. This is a defeatist attitude. We should do what we can to make illegal downloading as hard as possible. Once this simple law is in place, we can then look in to how to access the encrypted networks used for illegal downloading.
The Bill Would Sound the Death Knell For Open WiFi
If you enjoy being able to enter a cafe or public space and use an internet connection, then you should be very worried about the implications of this bill. Both sides of the debate have agreed that under the terms of this bill no person or business could run the risk of sharing an internet connection with other people, and that obviously applies most pertinently to providers of open/public wifi networks.
This is because they, not the individual committing the offence, would be legally liable for any crime committed on their network.
Sound ridiculous and unfair? - that's because it is.
So could owners of open networks prevent this sort of abuse? Maybe, but in reality probably not. The cost of software and monitoring would be prohibitive in many cases, and in addition, restricting the activities of users on a network is a full time job for administrators in a corporate network where they do it full time and are paid well for it - it would be impractical for cafes and restaurants, airports and other public spaces to attempt to create a user friendly network that could properly monitor their users traffic.
And that's the rub, it isn't realistic for small businesses to spend money and time on a network which could still get them into a lot of trouble - so it would be easier to just get rid of it and force everyone to use their own private 3G connection.
"So not only will this Bill help the dying music industry, it will help societies social skills." (right) - you really are missing the point. People won't stop using the internet, but they will stop using cafes and restaurants as much to surf the internet; presumably you're happy for small businesses to struggle even more than they already are? As for the music industry, which music industry is dying exactly? I don't see myspace.com struggling. The internet has been and is now more than ever, the place for artists to promote and distribute their work on an unprecedented scale. What you are referring to, I think, is those who would buy their votes in parliament with profits made by taking advantage of musicians and others.
Perhaps this is the direction we need to go in! We have become far to reliant on the internet. We have become a faceless society. We hide behind our laptops, or phones, behind the guise of the internet. If we take away the internet from the public domain, then maybe we will begin talking to each other once again. We will stop working in our lunch break. We will stop talking over the internet and start talking face to face. So not only will this Bill help the dying music industry, it will help societies social skills.
a telephone company is not responsible for the conversations transmitted
the government is attempting to make a private utility responsible for monitoring, policing, and enforcing. This is to be done with only a suspicion of activity, considered by many as normal. This change is to happen without any parliamentary debate, or public discussion.
Most Cases Won't Require a Trial and Disconnection is an Extreme Case
Repeat offenders may be disconnected, but they will be able to defend themselves in court if they wish to. Most cases will be resolved with a fine or temporary suspension.
Can it really be the case that you are arguing for a law on the basis that it probably won't be used that much? The point of a democratic society based on the rule of law is to ensure that people are protected whoever is temporarily occupying elected offices and whatever the passing concerns of the majority. No law should ever be passed unless it can be shown that it would not damage basic rights and liberties - EVEN if a government were elected that would seek to do such damage.
If we have learned anything from centuries of human experience, it is that you cannot give someone a power without expecting them to use it.
ISPs Should be Made responsible For Their Customers
Other businesses are legally required to ensure that their systems protect copyright so why shouldn't ISPs?
It's not in the same football pitch, not even in the same solar system. The logistical challenges are practically insurmountable for most, if not all, ISPs. Other businesses are only expected to do what they can reasonably be expected to. ISPs are very different because their business or service IS the medium by which content is transmitted, whereas other (considerably smaller) business networks are simply a means of facilitating some other business function that may have a reason, from time to time, to transmit copyrighted data. You can't provide a broadband transmission service, then first narrow to a tiny diameter and finally disconnect completely, that same transmission service - by doing that you're not providing a service, which means you don't have a business! And this all assumes it's actually possible for ISPs to monitor users effectively, which it probably isn't.
What is even more important here is that the bill seeks to make ISPs the active enforcers of the law, by requiring them to actively monitor and investigate all users (including the innocent therefore), then punish those they 'think' are guilty first and ask questions later.
The Bill Will Protect Hard Working Musicians and Creative Artists
Many industry surveys have shown a massive reduction in music and media sales in recent years. This can be attributed to the enormous increase in file sharing on the internet. If we don't address the issue now, millions more pounds of revenue will be lost and hard working artists and musicians will find themselves without any way of getting paid for what they do.
It can be attributed to the increase in filesharing on the internet, but only erroneously. Surveys have also shown that those who fileshare spend more on music than those who don't. The real problem in the music industry is its failure to recognise the changing economic landscape.
The collapsing costs of creating, distributing and promoting music have led to an explosion in supply (lots and lots of music is available) and no corresponding increase in demand. It is just basic economics that the actual price point of a 45 minute album should, therefore drop dramatically. By attempting to make profits from a business model based on the sale of music at the old price (£8-£12 per 45 minutes), the music industry has completely missed the opportunity to embrace the internet and the opportunities it offers.
Equally, artists were always paid a pitifully small share of the revenue generated from sales - the vast, vast majority of those who have ventured into music have never seen a return on their time. Filesharing and the internet have levelled the playing field allowing artists to build careers themselves without record companies - it will be up to them to monetize their endeavours in innovative ways.
Furthermore, the ease with which any savvy net user will be able to circumnavigate the risks of prosecution created by the Digital Economy Bill will ensure that filesharing will continue regardless - leaving only the innocent, open wi-fi providers, the computer illiterate and the parents of filesharing children susceptible to its draconian measures while solving nothing for anyone.
Access to the internet is not a basic human right
While having a private internet connection is valuable it does not count as a human right let alone a basic one. This means that there is no threat to human rights merely a denial of opportunities that can be found elsewhere and accessed through resources such as libraries or internet cafe.
The courts have never interpreted Human Rights restrictively. They give the rights laid down in the Human Rights Act 1997 a very broad meaning. Whilst internet usage is not a Human Right, the right to a fair trial before punishment is and this point is argued above.
A case could also be made that the disconnection interferes with a person’s right to a private life. To actively disconnect and restrict a person’s internet access is a direct violation of a person’s freedom without a trial to justify such action.
Inability to communicate using existing works or parts thereof will force everyone to be creative and original.
Copyright owners will argue that even the smallest particle of their work must be taken down. Fighting over the right o use a few notes, a quotation from a lyric or text, etc. will not be worth it. A system with no checks and balances will be abused. Ask the Pope, if you don't believe me.
All trace of copyright works in other works, or alone, will be gone, even for legal purposes. The reason copyright exists will be gone with it, of course, that being the encouragement of the dissemination of ideas and the inspiration to create new ideas.
But that is a small price to pay. Now we will all have to speak for ourselves in our own words, draw our own art, and write our own songs. Freedom of expression will have increased, in fact, it will have become compulsory.
What do you think?