Wednesday 7 April 2010

Digital Economy Debacle

This post started life as a stream of consciousness journal on  Apologies if it is even more rambling than usual...

So last night was the second reading of the Digital economy bill.  What a farce.  There must have only been a dozen MPs present for the full reading.  Can they truly pretend that MPs care about this bill with such an appalling attendance?

The UK has a knowledge based economy.  Technology, communications and creativity are all essential to our future as a country.  Yet our leaders are as tech-savvy as a bowl of figs.  There were a handful of responses last night that understood the issues.  Tom Watson, Fiona MacTaggart.  Even John Redwood FFS.  "The vulcan spoke logically" as I saw someone say on twitter.  The debate went on and on.  Some of the commenters seemed to only be there to score political points.  Adam Afriye spent an age recounting those that had gone before, generally taking the sting out of the arguments of those against while also disagreeing with the arguments for the bill and concluding with a scathing remark about it being a washed up bill made by a washed up government.  He seemed to have an awfully long time at the microphone yet added very little substance to the debate.

But at least he was there.  My local MP was not, and I would guess that most other people felt similarly unrepresented in this.  The general election has been announced so many MPs are already back on the campaign trail, leaving London behind, perhaps forever.  So one of the most important pieces of legislation being considered is being left to be settled by a handful of stragglers left in the house.

One of the arguments trotted out is that the bill got plenty of consideration in the Lords.  The point was made in the debate (but seemingly not acknowledged by those who heard it) that the fact that this took longer than expected to pass through the house of Lords and arrive at the Commons, was that it was contentious.  Was that it required proper scrutiny. Scrutiny that is not possible in the time left to this parliament.

Usually a bill of this magnitude will start in the commons before being passed to the Lords for scrutiny.  This time the bill started in the Lords (and if many people's suspicions are right actually started over lunch between Lord Mandelson and major record label execs).  The bill went through a couple of readings, a set of major revisions, and was being modified right up until it was passed to the commons.  There were even clauses being updated as it was passed over, so any argument that it had received sufficient scrutiny in the Lords to allow consensus to form is specious.  If time had been available I have no doubt that this would have taken even longer than it did to pass through the Lords.  And we would all have been better for it.

I do not really have a problem with this whole bill like some people seem to.  I have read this bill through.  In several of its incarnations.  I have been following its progress through both houses.  I agree with a lot of the sentiments in it.

Broadcast isn't my area so I am not really fit to comment on those aspects of the bill.  As a long term user of DAB radio I would probably not be quite as pro-changeover as the bill seems to be, even though I am close to having a vested interest in freeing analogue spectrum up for digital communications.  Analogue radio has an important place to fill.  Even in urban areas digital radio reception can be poor.  And the station quality is extremely diluted.  Pretty much the only stations worth listening to are the BBC stations.  But then that is my opinion on analogue radio too, so that's not really news.

The orphaned works clauses are important but have not yet reached the correct balance of creator rights versus access.  This needs to be sorted out; however it needs further debate to be sorted.  This issue alone probably requires more debate than the hour that has been allocated today for the third reading.
The ability for the government to step in and take control of Nominet via Offcom is just plain weird.  One of the members speaking last night (I forget which one and cannot find it in Hansard at the moment) was saying that comparisons to the Internet censorship used in China were patently ridiculous[edit: It was David Cairns MP for Inverclyde and the phrase he used was "Clearly bonkers"].  Given that one of the primary powers the Chinese use to enact this censorship is control of the country's DNS infrastructure I don't think the claim is a far fetched as he believes it to be.

And of course the copyright infringement.  This was the bulk of the debate, and rightly so.  I don't think any progress was made in the second reading debate.  Neither side gave any ground.  The same arguments were brought up again.

Why am I against the proposed actions?

Under the bill the accusation is the proof of guilt.  The accused has the burden of proving their innocence.  This is just plain scary and has wide ranging implications as a precedence if allowed through on the nod. The fact that current BIS recommendations included charging people to mount their appeals is also relevant here. 
Many arguments are made that it will be easy for ISPs to detect infringers.  That when infringers get more clever then deployment of DPI will solve everything.

Newsflash.  Vendors lie.  Not understanding that concept is a large part of why public IT projects constantly get delivered late and over budget.  The government and media industries faith in DPI is all based on vendor claims rather than the real world.

Mandating the use of DPI in service providers will slow down the growth of the net and will cause prices to rise.  There will be no incentive for vendors to lower prices - after all its not like the choice to not use their hardware is even available to people.  Does the government also plan on putting regulation in place on the DPI industry to stop price fixing?

I seriously oppose the way that this legislature will disincentivise people from providing free wifi access.  The risk will outweigh the benefits so people will stop.  Access will be reduced and innovation will be punished.
Note that I make no mention of the oft sported "downloaders spend more on digital content".  I fully agree that creators deserve to be paid for their works.  I am not one of the looney fringe that thinks that all copyright is theft.  I do not believe that this bill will do anything to stop serious infringes.

Disconnection is not a proportionate action.  The average infringer is not living alone in their dank basement, the sole user of their broadband connection.

Children may infringe on the end of the line that their parents rely on for their business.  Parents may infringe on the line their children use to research for their coursework.  An average user with no specialised security knowledge may unknowingly leave their access open to an infringer living in the neighbourhood downloading content on their connection.  In all of these cases the infringer is not the sole recipient of punishment.  How is this proportionate?

Another point often raised is: disconnection is a last resort.  If disconnected the user can just switch provider.  And it may be years before they are disconnected anyway.  So you are arguing that this is good law because it has no teeth? Really?

One last point before wrap up.  If rights owners block infringers they hope to increase their (already record) revenues.  If ISPs have to pay costs to disconnect their own revenue generating customers, where will these costs be reclaimed from? Other paying subscribers.  Innocent net users will be paying for the old media's old models.

Here's a thought about how it might happen: ISPs adopt the concept of no claims discount from the insurance industry.  All subscriptions rates are doubled and incremental discounts are available each year that passes without accusation.  After 5 years the discount rises to the cap of 50% (i.e. the original price). In order to allow transfers an independant body will maintain a subscriber database to track discount entitlements and accusations of infringement.  Maybe this could be yet another power for the beloved Offcom, mentioned so frequently already in the bill...

Just in case my opinion wasn't obvious from my tone in the previous paragraph: I do not think this would be a good way to do this.

I think that the Digital Economy Bill done right would be an important aid to our place as a leading knowledge economy.  I do not believe that bill currently before the house is done right.  I do not believe that this bill can be made right in the time available in this parliament.

In addition to the previous letter to my MP, posted here, I also agree wholeheartedly with the sentiments in this open letter.