Digital Economy Act Lurches On; Public Still Shut Out

Remember the Digital Economy Act, surely one of the most disgraceful episodes in recent British political history? It was "passed" back 2010 – I use inverted commas, since it was actually rammed through an almost empty House of Commons in the guttering hours of the previous government, with no scrutiny, riding roughshod over all those pointing out it was both unjust and unworkable.

But we have had our revenge since then: this Act is, indeed, so badly put together it is proving impossible to implement. It's still staggering through various stages, becoming more and more irrelevant with every passing day.

Here's the latest act in the Great Digital Economy Farce, or rather the actors' lines in the form of Minutes of the Online Infringement of Copyright Roundtable, 15 May 2013. Typically, the document is only available in Microsoft's OOXML format, showing the usual contempt for truly open standards that we have come to expect from the UK government.

The list of actors, er, participants is as follows:

Ed Vaizey – Minister for Culture, Communications and Creative Industries
Peter Szyszko – whiteBULLET
BPI – Ian Moss
FACT – Lavinia Carey
MPAA – Chris Marcich and Marianne Grant
Publishers Association – Richard Mollett
Premier League – Bill Bush
Internet Advertising Bureau – Nick Stringer
BT – Julian Ashworth
Sky – David Wheeldon
Virgin Media – Matt Rogerson
IPO – Philip Horswill
Facebook – Simon Milner
UKIE – Jo Twist
Google – Theo Bertram
Ofcom – Campbell Cowie
TalkTalk – Andrew Heaney
CMS – Adrian Brazier

So, let's see who's there. A minister, civil servants, telecoms, ISPs, giant US Internet companies, no less than nine representatives of the copyright industries, and the splendidly-named whiteBULLET. Here's what the latter says about itself:

whiteBULLET's IP Infringement Index ("IPI Index") is the first global online intellectual property risk rating solution, raising the standard for an open, free and safe Internet.

Our transparent and credible methodology created with the expertise of IP and digital media professionals assesses and scores websites by reference to their relative degree of IP infringement.

The standard we have created offers a benchmark for consistent and meaningful online compliance that can be adopted by numerous Internet stakeholders through customisable solutions.

This seems to be a kind of traffic light system, where green, amber and red are, respectively:

No infringements OR Low levels of incidental infringement due to business model

Medium levels of infringement due to business model AND/OR Medium levels of infringement due to failure to take effective preventive measures

High levels of infringement AND/OR Dedicated to IP infringement

There's a phrase in there that might ring a few bells – alarm bells:

due to failure to take effective preventive measures

That's very similar in spirit to this wording:

allegedly are taking or have taken steps to avoid confirming a high probability of infringement

That's from SOPA, the "Stop Online Piracy Act" that came close to breaking the Internet a year ago. One of the many big problems with it was precisely this section, which tried to turn ISPs and Web sites into a private police force for the copyright industry, when that's not their job.

SOPA was proposed US legislation, while whiteBULLET's IPI Index is just something put together by a company. To derive it, it must make judgments about whether sites are allegedly infringing or not. The Minutes of the Digital Economy Act meeting make clear why that is likely to be problematic:

The system will be tested over the summer, with a view to rolling out in the autumn. It will be funded by ad networks looking to protect their brands. WhiteBULLET regularly add to the 150,000 websites scored so far, plan to ensure a global reach and are talking to ISBA about awareness-raising amongst brands. PS explained that copyright owners could use the system as a tool to measure the extent of advertising on high risk sites and to take compliance action. LC was supportive of an independent automated system and noted that the mechanism could satisfy a range of demands for evidence.

A company can't really claim to know whether every piece of content on a site is or isn't infringing – that's hard enough for highly-skilled judges considering all the issues for days. And the idea of "an automated system" being used to provide "evidence" is fraught with danger. It's likely to lead to mere opinions about infringement, as encapsulated by the "IPI Index", being treated as if they were proof.

This will be a further step away from "innocent until proven guilty" to the reverse: sites may well be classed as infringing – because the whiteBULLET system deems them so, for whatever reason – until they "prove" their innocence, just as is the case with the "three strikes" approach itself, which somehow expects people to "prove" they didn't download something (how on earth can you do that?) That's a real perversion of the British system of justice, and shows the corrupting effect of copyright, which regards itself as so important that it a thinks nothing of overturning an entire ancient legal tradition – something no other industry would even contemplate.

In a way, it's no surprise that the minutes of the meeting show the UK government proceeding further down this path. I noted above who was present – including those nine representatives of the copyright industries. But the most striking feature of the list of participants is who is not there: the public. There is not a single representative of the 60 million people of the UK who will be most affected by the continuing joke that is the Digital Economy Act. Instead of trying to ameliorate the latter's risible ideas by engaging with citizens, the UK government arrogantly continues to exclude all civic groups that might present the other side's views. That is nothing short of a disgrace, and Ed Vaizey and his team should be ashamed of themselves.

However, there is some good news, as reported by James Firth in a fascinating blog post about what's really going on behind the scenes of the Digital Economy Act:

One source described the copyright provisions in the Digital Economy Act 2010 as "un-implementable".

The legislation rushed through parliament in 2010 – at the behest of copyright lobbyists asserting prompt action was essential to the survival of the creative industries – was bad.

Since then the UK music and film industries have grown despite the gloom in the rest of the economy and 2012 saw an 11% revenue growth for legitimate downloaded media content in the UK despite progress on the Digital Economy Act stalling.

In other words, despite the cosy meetings of the copyright maximalists planning to push through disproportionate approaches to alleged copyright infringement – even in the face of strong growth in the industries that insisted they were dying – the dire Digital Economy Act is still on track to crash and burn spectacularly. That day can't come soon enough.

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Copyright © 2013 IDG Communications, Inc.

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