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Unintended Consequences.

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Outside of a few politicians and those lobbying for the Digital Economy Bill, it is hard to find anyone that has fully considered the consequences and can still argue for it.

Mike Butcher at the Torygraph provides an informed view of this piece of hasty legislation:

“… Likewise, the Digital Economy Bill, in trying to support artists’ copyright and tackle illegal file-sharing, is about to produce a new culture – in which ISPs and bewildered householders are deluged with threatening legal letters from the entertainment industry.

These innocents will have no idea their teenage children, neighbours, or even someone parked outside their house, has been slurping their WiFi and downloading the latest Hollywood movies and Top 40 albums. In the past the lawyers had to go after the infringers, with actual proof. Remember being innocent until proven guilty? That’s out now. Now, the holder of the internet account (Mum, Dad, Granny and the small business that can’t afford the legal fees) will be held to account for what happens over their connection.

A new way for lawyers to create another ambulance-chasing industry? How’s that for unintended consequences?

A further impact will be on the UK’s technology innovators. How would you like to start a go-ahead new internet company if you felt your legal bills might end up being bigger than you actual Internet access bill?

Over 20,000 people have written to their MP arguing that the Digital Economy Bill was so complex it needed more time for scrutiny. Less complex Bills to do with the NHS have been debated for longer.

In theory the Bill, which now goes back to the Lords for its final stage before Royal Assent, could be sent back to the Commons in a game of political ping pong, but this is unlikely. The whips are expected to push the Bill through.

And the last unintended consequence is this. In April last year, Sweden’s internet traffic took a dramatic 30 per cent dip as the country’s new anti-file sharing law came into effect. Before this, Sweden, the home of the Pirate Bay, had been a hotbed of illegal trade in movies and music.

But several months later traffic levels started to surpass the old levels. Consultancy firm Mediavision found that the accessing of illegally shared movies, TV shows and music simply recovered. But there was one crucial difference. Much of the internet traffic was now encrypted.

Update 1: I never gave this Bill much thought as it seemed unlikely to pass into legislation, how wrong could I be? Nevertheless Flesh is Grass has covered it before The enormous collateral damage of the Digital Economy Bill.

Update 2: Google and Clause 8:

“Google has hit out at the Digital Economy Bill, with specific criticism for the controversial Clause 8 which gives governmental powers to block websites that are ‘likely to be used’ for infringing copyright.

Clause 8 was criticised in the House of Commons as the bill was passed on for a third reading in the House of Lords before it is rubber-stamped as law.

The Liberal Democrats and Labour MP Tom Watson – who fiercely opposed the bill’s shortcomings – argued against the clause which allows the secretary of state for business to block “a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright”.

Update 3: Even Sky News sees the issues:

“The Digital Economy Bill is aimed at stopping people illegally downloading copyrighted material from the internet.
However, critics of the Bill argue that it could have far greater powers and be used to censor and block free speech by whichever political party is in power.

The Bill was rushed through during the “washout” period before Parliament is dissolved.

It was passed by 189 votes to 47 after concessions were agreed that saw the Government dropping a clause which could have allowed it sweeping powers to block sites.

But the amendment to another clause means that it could still be possible to block a site, if court approval were given first.

MPs who opposed the Bill agreed it was right to do something about illegal downloads – where the copyright is owned by someone else – but said new powers were too far-reaching.

One suggested a search engine even as huge as Google could potentially be blocked.
Technology blogs say the law will be way off the mark.”

Update 4: Gary Marshall at TechRadar is scathing of politicians:

“You’ve got to admire the Digital Economy Bill. It made thousands of people pay attention to politics.
It encouraged thousands of so-called Digital Natives to watch live streams from the House of Commons.

It brought together writers and readers, bands and fans, designers and developers and creatives of every kind. And then, slowly and deliberately, it dropped its digital trousers and waved its digital arse at the lot of them.

If we’ve learnt one thing from the Digital Economy Bill fiasco, it’s that you should never underestimate the idiocy and venality of politicians. With a few honourable exceptions our MPs ignored tens of thousands of letters from thousands of constituents and didn’t bother to turn up for the debates.

In the run-up to the so-called Digital Election the parties all talk about crowdsourcing, about online engagement, about bringing politics closer to the people, but that’s all window dressing.

Behind the iPhone apps, the Twitter feeds, the YouTube channels and the Build Your Own Poster sites it’s business as usual: empty heads, vested interests and utter contempt for the electorate.

Update 5: James Graham at the Guardian has a similar message:

“You would be hard pressed to find a better example of how broken our current political system is than the passage of the digital economy bill through parliament. A vast sprawling bill made to order on behalf of the so-called creative industries in the face of opposition from pretty much everyone else, it has all the hallmarks of legislation carved up between Sir Humphrey and a minister with an ego of monstrous proportions (only Lord Mandelson would consider Henry VIII-style powers as something to aspire to in the 21st century)”

Update 6: The Bill got thru because of Tory support as politics.co.uk points out:

“The bill got through because of Tory support, a fact Peter Mandelson avoided this morning when he attacked the party for watering it down. “The digital economy legislation has survived but the Tories have made changes that will make the task of building our digital economy in this country somewhat harder. It just shows they do not get it about business, about industry and what we need to do in this country to invest in infrastructure, new technology strengths if we’re going to make them pay our way in the global economy in coming decades. The blow they have tried to strike against the digital economy legislation shows they just do not get it on what we need to do to build up the industries of the future.”

Whichever way you look at it, last night did not paint a reassuring picture of democracy. MPs were hurried into the Commons by the whips to vote on a bill in which they had not actually sat to listen to the debate, which anyway took place in double-quick time so the law could be secured by the time of the election. Many internet users won’t be happy about that. But when it comes to avoiding the consequences of the bill, the path ahead may be easier than they expected.”

Update 7: Doug Richard, Founder of School for Startups:

“Perhaps key among them is that it contains a provision which allows “Copyright Holders” to identify any IP as being responsible for the distribution of their content illegally. Once this happens, the business or individual associated with that IP address can be penalized without the tiresome necessity of turning up in a court to present evidence.”

Update 8: Invested interests ?

“The digital economy bill had substantial backing from the content industries, including record labels and film-makers and distributors, which claim that they are losing £400m a year through online piracy and file-sharing. It emerged when the bill passed through the Lords that a key amendment had been drafted by the BPI, which represents UK major record labels.

The Open Rights Group, which is opposing the measures against file-sharing on the basis that they assume guilt on the part of those who operate internet connections, and that they will discourage hotels, libraries and shops from offering free wireless internet, called the passage of the bill “an utter disgrace”.

Jim Killock, its executive director, said: “This is an attack on everyone’s right to communicate, work and gain an education. Politicians have shown themselves to be incompetent and completely out of touch with an entire generation’s values. There are thousands of activists working with ORG planning to show up at hustings, demand answers from candidates, and who are willing to punish those who voted for this at the ballot box.” “

Update 9: Jim at the Daily (Maybe) has two good pieces on it:

“The bill, which brings in legislation to further control the internet, has a number of problems. There are certainly concerns that there may be freedom of speech issues and has a hammer to crack a nut approach, but its main problem is that it assumes guilt and then forces people to prove their innocence – reversing centuries of the legal system.

It means that if your ISP address is one that is thought to be involved in illegal file sharing then your net access could be completely removed. Well, goodbye internet cafes then. Goodbye university web access. Farewell to natural justice as families get cut off because one individual has downloaded a few files. What utter idiocy.

This is a very dangerous piece of legislation which is, of course, their starting point on this issue. Who knows where the next government will take us because both likely contenders for largest party supported the bill.”

And Jim’s Update: Digital Economy Bill – who did what?

Update 10: Quick Guide To All 45 Measures:

“…
#2: Ofcom must produce reports on the state of network infrastructure and internet domain name registration.

#3: In those reports, Ofcom must also report on how TV, radio, on-demand and other editorialised websites contribute to public service objectives.

Illegal downloads

#4: After apparent copyright abuse, copyright holders can send a “copyright infringement report” to ISPs with evidence of the downloading, within one month of the alleged incident. The ISP must notify its subscriber within a month, providing education about legal alternatives, evidence and information about appeals and legal advice.

#5: ISPs, if requested, must provide copyright holders with a “copyright infringement list”, listing each infringement by an individual, anonymised user.

#6: Sets out conditions for approval of “initial obligations” code under which Ofcom can deliver the above two copyright clauses.

#7: If no such code exists, Ofcom can make its own.

#8: Populates the content of the “initial obligations” code, which would see that ISPs must not notify subscribers of alleged infringements more than a year old.

#9: Ofcom must report, every three and 12 months, on the extent of online copyright infringement, whether copyright owners are making content legally available, how the education drive is progressing and the volume of “copyright infringement reports”.

#10: The govt. can tell Ofcom whether it should order ISPs to sanction speed blocks, bandwidth shaping, site blocking, account suspension or other limits against an ISP customer. First, Ofcom must do consultation and consider whether these measures would work.

#11: If the measures pass Ofcom’s muster, the govt. can then level the measures against ISPs, but only if approved by both houses of parliament.

#12: Ofcom must make its own code regulating how these measures can be sanctioned…

#13: The code must cover enforcement procedures, subscriber appeals, costs are taken care of and that Ofcom would arbitrate owner-ISP disputes.

#14: Subscribers can appeal to an independent person named in Ofcom’s code and, later, to a first-tier tribunal. Costs would be met by the ISP, copyright holder and subscriber.

#15: ISPs that fail to apply technical measures against subscribers can be fined up to £250,000, as Ofcom determines.

#16: Copyright owners must pay Ofcom’s costs; both copyright owners and ISPs must pay costs of implementing technical measures; accused subscribers must also share appeal costs.

#17: Defines terms.

Domain names

#19: The govt can notify domain name registry if it thinks they are seriously failing, after reading Ofcom’s report (#2).

#20: The govt can install its own manager at a failing domain name registry.

#21: The govt can apply for a court order altering the constitution of failing domain name registry.

Channel 4

#22: Adds film production and distribution to Channel 4’s remit. C4 must support people “making innovative content” (ie. 4iP?) and must produce news and content for children and teens.

#23: Channel 4 must produce an annual report stating its goals and monitoring its performance. Ofcom must also review C4 and can bring sanctions if it fails.

Commercial TV

#24: Allows for single franchise areas for both Scotland and England.

#25: Sets December 2014 expiry date for Channel 3 and Channel 5 public teletext license terms

#26: Provides for expiry of those licenses themselves.

#27: Ofcom must report on the public teletext licenses and “whether (they) can be provided at a cost to the licence holder that is commercially sustainable”, but it “must take account of alternative uses for the capacity that would be available if the public teletext service were not provided”.

#28: Can remove public teletext services from Ofcom oversight.

#30: Removes Gaelic programming regulation from Ofcom’s auspice.

Radio spectrum

#31: The govt. can specify digital switchover dates.

#32: Ofcom can renew national radio licenses at seven-year terms.

#33: Governs how Ofcom can vary local digital radio licenses.

#34: Sets out how Ofcom can vary local radio licenses after they have been renewed.

#35: Defines areas in which local radio programming must be made.

#36: Ofcom can decide whether to vary national digital radio multiplex license areas and analogue frequency areas if applied to by the license holder.

#37: The govt. allows Ofcom to decide on national digital radio multiplex license renewal.

#38: Generally allows the govt. to include or exclude new measures for broadcast regulation regimes.

#39: Sets out how spectrum holders must pay for the license.

#40: Sets out how Ofcom can penalise license holders which breach their terms.

Video games

#41: Extends game regulation under Video Recordings Act 1984 to games that include violence to humans or animals, encouragement of criminality, drug use, encouragement of alcohol or tobacco use, sexual messages, swearing, offence.

#42: But allows for video game’ regulatory responsibility to be separate from video works.

#44: Raises maximum penalty for criminally making copyright-infringing works to £50,000.

#45: Absolves libraries of copyright infringement if they lend out non-traditional “books”, ie e-books and audiobooks.”

Update 11: The Costs:

“Internet service providers (ISPs) face a host of extra costs that could add up to £15m a year if provisions in the Digital Economy Bill become law.

This emerged from a consultation document published by the Department of Business, Innovation and Skills on how best to split the costs to fight online pirates.

The cost estimate depends on the number of CIRs or notices sent to customers who allegedly infringe copyright by downloading files illegally. The government expected this to reach “several million” a year.

ISPs will also have to keep anonymised records of how often an individual subscriber has been accused of copyright violations, to keep a list of the worst alleged offenders, and provide copyright owners with the lists on request.”

Update 12: MI5’s views from October 2009:

“The police and intelligence services are calling on the Government to drop plans to disconnect persistent internet pirates because they fear that this would make it harder to track criminals online.

Lord Mandelson, the Business Secretary, has vowed to use the Government’s forthcoming Digital Economy Bill to introduce new measures to fight illegal file-sharing of music and films. He has also proposed that persistent pirates should have their internet connections suspended temporarily.

But The Times understands that both the security services and police are concerned about the plans, believing that threatening to cut off pirates will increase the likelihood that they will escape detection by turning to encryption.

Law enforcement groups, which include the Serious and Organised Crime Agency (Soca) and the Metropolitan Police’s e-crime unit, believe that more encryption will increase the costs and workload for those attempting to monitor internet traffic. One official said: “It will make prosecution harder because it increases the workload significantly.”

A source involved in drafting the Bill said that the intelligence agencies, MI5 and MI6, had also voiced concerns about disconnection. “The spooks hate it,” the source said. “They think it is only going to make monitoring more difficult.” “

Update 13: Open Rights Group view.

Update 14: The 38 degrees advert that was ignored.

Update 15: A breakdown of Who voted NO?

Written by modernityblog

09/04/2010 at 00:26

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