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Tuesday, 20 September 2011

Notes from Ed Vaizey Digital Economy Act meeting, 20th Sep 2011

Ed Vaizey at the IPv6 party this spring
The prize won from writing a blog post criticising a government Minister was a seat at a meeting with said minister. We're already in uncharted territory - far from the closed-door policy meetings I originally blogged about.

Far also from many people's view of government and its relationship with the public. I opened submissions, mentioning the blog post in my second sentence. "Don't make a habit of it," the minister responded. 

Of course as a strong advocate of free speech I'm not going to pander to a government minister just because he offered me - together with a diverse range of critics - a platform.

But in reality three points follow. (1) Ed should be congratulated for merely agreeing to the meeting - and providing a proper platform for a frank exchange of views. (2) I am going to write differently about a politician after meeting him [properly] for the first time (Ed, we had met briefly at IPv6, I asked you for an interview for the Pod Delusion)... 

... and (3) I sincerely felt the meeting was useful. 

Of course everything is relative. I don't for a minute anticipate government policy towards file sharers under the Digital Economy Act will change direction overnight. 

But I didn't approach today's meeting expecting a shift in policy as a likely outcome. I was already aware that a second series of meetings between The Big Boys (multi-national ISPs and rights holder groups) was separately taking place, the most recent of which was held yesterday. 

Attendees of yesterday's meeting had given me a heads up as to what was discussed. Essentially, demands for a court process which results in a website blocking order for sites accused of copyright infringment - with a turnaround time of ONE HOUR. Two words to this: due process!

I was fired up to raise my dissatisfaction that our meeting today was nothing but a side show to the main event, held yesterday, but in truth it wasn't; it was an opportunity for groups and individuals to present their cases first hand to the Minister. 

It was a chance to short-circuit the negative image those lobbying for the Digital Economy Act had carefully crafted around myself and others opposing the Act. Few - if any - were standing for the right to copy music for free. 

Civil liberties arguments aren't chiefly about the freedom to copy, but the right to due process under law, and the dangers inherent in any system of censorship. Many of these points have been airbrushed by the pro-control lobbying campaign. 

Moreover people like myself, Jeff Lynn from COADEC, Tref of ISP Timico and Malcolm Hutty of ISP interchange LInX are chiefly focussed on the business impact.  The Open Rights Group is famously moderate in many of its campaigns - and widely representative in many of its campaigns, striving for balance. Loz Kaye, representing the Pirate Party UK, had a chance to dispel the myth that the party wanted all forms of copyright abolished, and show support for their agenda by highlighting recent election wins in Germany.

I set out to show I was, contrary to opinion in certain quarters, not [just?!] a conspiracy theorist making unfounded claims the internet will collapse if the current policy direction wasn't altered. 

Chatting afterwards the general consensus was positive - there is a real possibility  of a follow-up meeting. Whether or not rights holders will come to the table with opponents is a different story! 

I failed to take decent notes, focussing primarily on the debate, but here's a not-so-brief summary of the points I raised:

* There is a very real likelihood that open WiFi internet access points will be forced to close once the Digital Economy Act comes into force. This follows from Section 13(6)(b) of the Act, which essentially means ISP subscribers lose their defence if their internet is not secured. Ed Vaizey seemed geniuinely concerned about this, and the obvious implications for business and internet users. 

* Innovative small UK businesses with a handful of employees would struggle to meet any obligations under a rapid notice-and-takedown (NTD) regime of the type now being requested by rights holders. E.g. when running any web service featuring user generated content, if a user should post copyright-infringing content, say, over the weekend, the small business would need weekend cover to handle NTD demands. Failing that, they risk having their internet connection axed by their "upstream" ISP. Clearly a concern for any nascent business struggling to get through a delicate funding stage, effectively raising the barriers to entry. 

* Contrary to claims by rights holders, they are not being asked to compete with "free". Bandwidth and hosting isn't free. The ecosystem facilitating commercial-grade infringement comprises three key actors: hobbyists, chancers (who profit through e.g. advertising on essentially legal link farms) and criminals (who profit through clear criminality). I believe more can be done tackling those who profit from infringement (e.g. through membership fees and advertising) by chasing the money, and this - if courts are fully-involved in the process - will be far less illiberal than web censorship. 

Chasing the monetary reward from the delicate ecosystem could see the collapse of some sites clearly set up for the sole reason of facilitating copyright infringement. The process could also be applied to search engines, who benefit from advertising when people search for infringing content.

* There is a paradox between the need to protect intellectual property (IP) in a knowledge economy and the best environment for creation and innovation. Trading IP is vital to bringing complex technology to the market, ensuring all innovators get rewarded; yet the process of creation is stimulated by the freedom to share, adapt and build on other people's works. 

Innovation and creation can be hampered by the massive complexity in licensing all components. This balance in the Knowledge Economy Paradox is often overlooked when rights holders lobby on a simple message to governments: the fundamental economic importance of IP. This assertion should be questioned. 

* The effective monopoly afforded by the current rights model risks encouraging lazy, inefficient business models that will increasingly be at risk from leaner low-margin models emerging in developing economies. I encouraged the minister to have his team look into the SSRC report Media Piracy in Emerging Economies, which highlights the potential threat to UK creative industries from new models emerging in developing countries, where creative industries are forced to operate given the reality of weak IP enforcement and corresponding low unit prices that can be charged. 

* Some studies put the value of the online ad sector at £4bn last year. According to my own rough estimate, only 1/12 of this currently feeds down to web publishers. As the sector matures a higher percentage of ad revenue should be available to fund web-based content, free at the point of access. If this plays out, it will further render the measures currently being demanded by rights-holder lobbyists an even bigger white elephant, as creative industries shift towards ad-funded free at the point of access models akin to today's broadcast ITV and radio. 

* The educational campaign enacted through 3-strikes is based on changing attitudes to accessing creative content for free. Some MPs such as Mike Wetherley - on the record as favouring strong IP protection -  was pressing the line at a FAST session in parliament last week that good stuff doesn't come for free. This argument is upset by (a) emerging artists wanting to promote their work through free releases and, potentially, (b) emergence of many new ad-funded entertainment services free at the point of access (if the ad revenue becomes available to publishers and the rights-holders finally adopt this model and give up on the high unit price/artificial scarcity model currently favoured).

Essentially the consumer is understandably confused on the moral position of downloading e.g. music tracks for free. 

Briefly (as I didn't take very good notes) other attendees mentioned: 

Jeremy Silver of the Featured Artists Coalition gave a fascinating insight into the soul-searching within the music industry. Many artists are now generally aware of the conflict between 'network neutrality', the clear benefits of free and open networks, and how these worth aims are generally not compatible with the need to control and manage protected content. 

The logical extension of what rights holders want is a closed, compartmentalised internet, where all content can be controlled. Some artists see a good approach to focus on search engines as a starting point, as the collateral damage on civil rights might be less and many consumers use them as the sole means of hunting-out content.  

- I chipped in with an aside about the power of search engine advertising and the laziness of some consumers with the Sainsbury's Customer Service Line Con

Tref, of Timico, discussed how easy it was to circumvent blocks. School children already swap tips on bypassing school firewalls, and Newzbin2 - a website against which a blocking order was recently granted - was only this week bragging about a new encrypted client which would bypass the block once enacted. 

Essentially an argument developed by Dr Richard Clayton of the University of Cambridge Computer Labs, that blocking didn't work if consumers were aware that content existed. Technically competent people will not only find ways around the blocks, but they will then package the knowledge in a way that made it easy for other less competent people to bypass the blocks

Jim Killock of the Open Rights Group noted that the Newzbin2 encrypted client essentially brought a tool to market that could be useful to those wanting to access the same blocking mechanism to access child pornography - an unintended consequence of bringing copyrighted content into the existing blocking system (known as "Cleenfeed") was that a mainstream audience was now motivated to circumvent the blocks. 

Jim also touched on the serious civil liberties implications of circumventing legal due process e.g. when rushing-through blocks on a given website - would there be time to prove to the court the site was essentially set up to infringe copyright?  More on ORG's contribution here.

Malcolm Hutty of LInX questioned the mammoth tast of creating a new subsection of the criminal justice system in order to control copyright; policing, penalties, appeals, etc; with all the necessary safeguards to ensure fairness and proportionality. 

A common theme from all attendees was the importance of justice and due process in any blocking or disconnection regime.

Many thanks to Ed Vaizey for the meeting, and to Dominique Lazanski of the Tax Payers Alliance, who organised the meeting.


  1. Hi James

    Anything on libraries? I note that you mentioned open wifi access points but I'd be interested if anything was mentioned about public access intermediaries. Still waiting to find out if we will be subscribers/ISPs/exempt.


    Stuart (IFLA)

  2. Hi Stuart,

    Funny you should mention this as I was just processing some information passed to me indicating that libraries would not receive special treatment when the Initial Obligations Code is released. See my post here: http://ejf.me/kA


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