Don Foster on the Digital Economy Bill: carrot, pause and then stick

Yesterday Don Foster (Shadow Culture, Media and Sport Secretary) kindly gave over some time to talk about his views on the Digital Economy Bill and the line the party is taking. It’s a topic we’ve often covered on The Voice, particularly the question of the balance between carrot and stick in responding to internet piracy. Should the response be making it easier for people to buy legal content and a move to new business models (the carrot) or should it be a crackdown based on the existing copyright rules (the stick)?

Don’s answer was that the carrot should be tried first, the situation reviewed and then only if necessary the stick should be applied to – though he was clear that he was a strong supporter of also applying the stick if it proved necessary.

He was critical of the music industry and others for failing to keep up with the changing world they are operating in, talking of the “failure of the copyright owners” and “they must share a large part of the blame” for the situation they find themselves in. Don also said that basic legal principles such as innocent until proven guilty must be preserved, which is why the party has opposed many of the details of the initial Digital Economy Bill.

Don also stressed the importance of the review that has to take place before the “technical measures” in the Bill (i.e. throttling people’s internet connections or cutting them off) can be introduced, seeing it as a chance to review how the carrot of new business models and persuasion have worked.

Don Foster particularly praised business models such as that of Spotify and the experiments being made to let people have access to a catalogue of works in return for monthly subscription payments.

Only if these approaches don’t work would he then back the introduction of the technical measures, seeing them as then being essential to protecting the revenue which generates and sustains creative content.

Based on the many amendments accepted by the Government to their original proposals (especially over how the technical measures might work), he is now broadly happy with the filesharing part of the Bill with one important exception: Clause 17. Even after the amendments made to it, it still gives future Secretaries of State huge powers to shape important legislation.

Finally, as it’s back in the news I asked Don Foster about his views on an AV referendum. He prefers AV to first past the post as it allows people to cast their first preference for the person they most want and as it means people have to get the broad support of 50% + 1 of the voters to win. But, “AV is quite categorically not a proportional system” and is inferior to STV. So his first preference very much is for a referendum on STV but if forced to choose, he prefers AV to first past the post.

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  • Andrew Suffield 3rd Feb '10 - 10:31am

    I cannot support this position. We should not be saying “well, if a stern talking-to doesn’t work out, then we can try gratuitous violations of human rights and the rule of law”. We should not be doing these things under any circumstances.

    You cannot preserve “principles such as innocent until proven guilty” when your plan explicitly includes an intention to punish people that you know are innocent, which is what this comes down to. Everybody who lives at the same address as the offender is punished, and everybody except the offender has no right of appeal or due process. There is no way to pursue their “technical measures” agenda that does not have this problem. Internet service is fundamentally a shared resource.

  • I also cannot support this position. In addition to Andrew Suffield’s obvious point above, the very assumption that even if new business models fail, that draconian measures will then be “essential to protecting the revenue which generates and sustains creative content” seems to be wrong in the face of all independent research into filesharing.

    We should oppose this bill under all circumstances, review or no. It will do little to impede people determined to violate copyright (who are already switching to encrypted, trust-network-based p2p such as Waste), will do a lot to kill off “try before you buy” filesharing and hence harm profits, and criminialise a lot of innocent people by mistake without trial.

  • It ddoesn’t criminalise – it is a civil offence.

  • Andrew Suffield 4th Feb '10 - 5:42pm

    The “doesn’t criminalise” thing is a bit dodgy. A notable difference between civil and criminal law is that criminal law exists to punish and deter, while civil law exists to right things that are wrong – but this bill is all about punishment, and putting it under the heading of civil law is questionable (and indeed, questioned).

    Worse, “doesn’t criminalise” sounds like it’s not so bad, but that’s wrong. The reason why they’re putting it under civil law is not because they’re being soft or nice, it’s because they’re being really unfair and nasty. Civil offences have a much lower burden of proof than criminal ones – which is, again, because criminal law is about punishment and hence needs to take extra care. The government are trying to have it both ways, and punish people on the basis of very little evidence (many legal scholars, including those who support the bill, have expressed doubts that the “evidence” collected by the media companies would stand up in a criminal court, but think it might be good enough in a civil one). Under the constitutions of many countries that have them (including the US), this sort of civil-court criminal-penalty thing would not be legal; sadly, the UK Parliament does technically have the power to do it, and we can only try to convince them not to.

    We’re getting into contingency arguments here; if we can’t stop this travesty for the stronger reasons mentioned in earlier comments, then it should be a criminal offence rather than a civil one – that would be “less unjust”.

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