Opinion: Why I’m supporting creators but opposing the Digital Economy Act

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Kevin (not his real name) drives his son Danny to the shops. Danny pops in and emerges with various items in a bag, for which he has paid. In his pocket there is a packet of biscuits which he trousered while collecting the other items. CCTV spots the fact that he has done it and he is prosecuted for shoplifting.

A few weeks later, Kevin’s garage makes contact and says that the Government has issued an order that he take his car into the garage to be adjusted so that it can do no more than 30 miles per hour. He is warned that if the car is associated with any future shoplifting it will be confiscated.

Absurd? Of course it is. Danny has, of course, committed a crime and should face the due penalty. The biscuit manufacturer has every right to expect payment from those who consume its product. But to penalise the whole household by first damaging the usability of the vehicle and then confiscating it is a disproportionate remedy.

No sensible country would do this. Or would it?

The Digital Economy Act 2010 prescribes precisely this sort of penalty for illegal file-sharing. If it is not appropriate for biscuits, it is not appropriate for other assets.

Option A of motion F28 (dealing with the Digital Economy), debated on Monday, offers representatives an opportunity to oppose this quintessentially illiberal piece of legislation. It calls for the repeal of sections 3-18 of the Digital Economy Act, which enshrine internet disconnections as a remedy for illegal file-sharing.

It also calls for an independent review of the true impact of file-sharing. We are told that the damage to the creative industry is immense and that producers’ and artists’ revenues are suffering as a result. But is that really the case?

Is not most file-sharing – apart from the mass copyright breaches which rightly deserve the full weight of the criminal law – at worst marginal and at best a means of advertising? Many of us remember tapes being made of LPs when we were teenagers. Those that we came to love have long since been replaced by legitimate CD purchases or ITunes downloads.

And surely the barriers to the growth of creative industries lie elsewhere – the lack of opportunities for young people to use musical and recording equipment, the attitude of banks and the lack of studios and tax breaks?

Option B also looks at this question, but merely calls for the offending sections not to be implemented while the facts are ascertained. This essentially misses the point: even if there were real damage from file sharing the criminal penalty must be proportionate and liberal. Bad law is bad law even if the offence it tackles is particularly offensive.

Nor does it actually work: similar legislation in Sweden and France has not produced a measurable reduction in piracy.

Clearly those of us who will be voting for option A support creators, and want them to benefit from their work. But the answer is not to use illiberal, mistargeted measures that don’t work.

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10 Comments

  • It’s a shame that this post has been buried amongst so many other conference related posts. It is one of the best posts I have seen on this site.

  • It is an interesting post and one well worth highlighting.

    There are other reasons people download illegitimate copies than simply free-loading. In many ways the “free” stuff is just a superior product, or actually the free product is available, while the official product isn’t.

    “Illegal” MP3 downloads have gone down significantly since Amazon and Apple have made them available cheaply and above all without digital rights management. Finally consumers can get what they want, easily, at a reasonable price and unencumbered by cripleware that leaves them seething with fury that the £200 media gadget they bought can’t play the music they just bought. Steps forward.

    TV programs and Films should be next. It’s sort of happening in the US already with HULU and Netflix, but Europeans are banned from those sites.

    Which brings me to the blatant cartel behaviour. What if the music/tv/whatever you want to PAY for just isn’t available, and shops are not even allowed to provide if they know you are in a different country? This is true even in the EU where free trade of goods and services is enshrined. Once you delve into the realm of digital media the whole thing turns out simply to be a lie. Go to amazon.de and try to buy something physical and they’ll happily ship it. Try to buy something digital and no go. You won’t even be able to add it to your shopping basket. The message is, “we don’t want your money,” and consequently people will find others ways of getting what they want. The industry is actively encouraging that form of “piracy”.

    And with all things like this, once you’ve lost a customer you’re unlikely to get them back.

    If the music album I want is cheaper on amazon.de then I should be able to buy it there, just as I could the MP3 player I’d listen to it on. But I cannot and until this ridiculous situation is changed free then trade in the EU is very much being made a mockery off by the entertainment industry.

    Instead of punishing consumers of digital media, the industry should be encouraged to get it’s house in order (and punished where it infringes other existing laws, not given exemptions) and provide the media people want in an easy and accessible way.

  • @Phil

    No, A1 is nothing to do with the DEA. It’s about the policy, as outlined in the policy paper, of establishing a new government department for IT.
    A2 affects only option A (the one that rejects the DEA), and strengthens the language about supporting creators’ rights.
    A3 is about protection of internet hosts from libel action.
    A4 upholds the right not to be forced to use the Internet.

    There were then two options, A and B. A rejects all the controversial parts of the DEA (web-blocking and disconnection). Option B would only have called for repeal of the web blocking, and only suspending the disconnection. Option A (as amended by A1) was passed.

    However, only the votes on options A and B affected the policy that was passed in the policy paper (Plain text link). All other votes were symbolic.

  • David Claughton 21st Sep '11 - 2:00am

    You make a good analogy with Kevin, Danny and the biscuits – but you’re understating the case. This isn’t just a matter of the car being restricted on Danny’s successful conviction – this is the shop owner spotting a packet of biscuits missing from the shelf, accusing Danny without the need for troublesome things like providing any actual evidence, and the government meting out the punishment anyway. Then Kevin and Danny not only needing to prove their innocence to get the car put right, but having to pay for the privilege.

    It’s not just illiberal, but the blatant disregard of the principles of due process is a truly breathtaking example of a law which tramples all over everyone’s basic freedoms.

    And don’t get me started on the whole “copyright infringement is not theft” angle – imagine if Danny walked into the shop and instead of taking the biscuits, used a futuristic portable baking machine to make an exact copy of the biscuits and left the shop with just the copies? Who is harmed by this and why should it be illegal? Last time I checked it wasn’t illegal for a shopkeeper to not make a sale because his customers have found another way to make biscuits!

  • Martin Gill 21st Sep '11 - 9:11am

    @David,

    while I agree with your sentiment, your analogy isn’t entirely accurate.

    It’s like Danny going into the shop with a “future gizmo” analysing the biscuits in the shop and determining their exact composition and the recipe to create them, then walking out without the biscuits and baking his own. It’s never been about the shop, it’s about the people who spent the time and effort to create a popular recipe not being paid for their efforts. The shop is simply incidental.

    Biscuits are a bad analogy in their own right. It’s like walking into a bookshop, making a photocopy of a book and walking out with the photocopy. The reason no one does it with books is because it’s more expensive than just buying the book. The issue with digital copies is that it costs nothing to create them.

  • David Claughton 21st Sep '11 - 11:10pm

    @Martin Gill,

    I wouldn’t argue with you that people who put time and effort in creative endeavours should have an opportunity to make money. However, shouldn’t they have to do this through the free market like everyone else?

    In order to even start to justify policies like the DEA, we have to believe that there is no effective way for entertainers to recoup their investment through the free market and that charging for copies is the only viable business model such that the government needs to step in and enforce it. However there is ample evidence that this is far from being the case.

    A growing number of musicians and other creators are currently experimenting with alternative business models and many are making good money from their efforts. It looks very much like a transition in the market place is in progress, albeit still in the early stages. This is the kind of thing the government should be encouraging – wading in with ham-fisted legislation with the goal of propping up the legacy entertainment industry is exactly the opposite of what it should be doing.

  • @David, I’m fully on your side in this.

    I’d rather though we used appropriate analogies. Poor analogies only harm our arguments.

    Since I never leave out an opportunity to plug them… I’ll point you at http://www.baen.com If you look at the “Free Library” there you will see masses of free books from award winning & best-selling authors. No DRM.. no strings attached. You’ll also see some essays by those same Authors showing how their sales of physical books actually improved when they made books available for free online.

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