Debating the Digital Economy Bill: Exercise in futility?

The House of Lords debated yesterday the Digital Economy Bill, and I use the phrase “debate” in the loosest possible sense. What we got was a depressingly one-sided affair replete with misrepresentation, misunderstanding of the core issues, swallowing the industry’s figures without question, and corroboration that the House of Lords is an anachronistic, anti-democratic institution replete with sickening back-slapping, old-boy cronyism and undeserved deference. It was sort of sad to see Lords mentioning each other’s past acquaintances and current past-times in policy discussion: “M’lohrd Wheelbarrow of Borington knows full well everything there is to know about telecommunications as he was chairman of the Big Whig Association of Teleprompters. He also has extensive contacts in the industry, wink-wink-nudge-nudge, hur, hur, hur”.

The first thing one must note from this debate is how some of the country’s legislators cannot tell the difference between theft and infringement. It was also infuriating to hear Lord Fowler act as nothing more than an industry spokesperson, repeating old and tired one-sided statistics that have no bearing in reality. In one telling paragraph in his speech, he quoted James Clayton, an investor for the film industry:

“One of the films we co-financed recently was ‘Wolverine’, a spin-off of the ‘X Men’ series, released at the start of May. Shortly before release in April, a partially completed version of the film found its way onto the web. It was downloaded four million times and Fox, who are our partners on the film, estimate that it probably knocked $20 million to $30 million off the box office”.

The only reason why Wolverine had an atrocious drop at the box office has nothing to do with the fact that it was made available online, and everything to do with the small and insignificant detail that it was a steaming pile of post-digestive refuse. When is the industry going to stop blaming piracy for its own lack of quality?

Lord Razzall continued the trend by erecting a monumental straw-man and then proceeding to knock it down. He said:

“[…] to use copyrighted material without the appropriate payment is actually theft, and we have no sympathy for the suggestion coming from certain quarters that all information on the internet should be free, irrespective of the copyright position. Although many 18 year-olds-or even 17 year-olds-would take that position, we do not think that that is the correct position to take. […] we think that education in this area is very important. There is a whole universe of people out there who genuinely believe that everything on the internet is free. They do not realise that they are in breach of copyright when they download music or a film, so the industry and the Government need to work together to ensure that there is proper education on that.”

I do not know anyone who thinks that information online is free. Lord Razzall seems to misunderstand the phrase “information wants to be free”, which has entirely different connotations to what he means. This paragraph also falls into the blatantly silly assumption that file-sharing is done by pimply teenagers, and that education will somehow knock it out of them. The reality of course is more nuanced, and until we have clear recognition that the demographics are more varied, we will continue getting regulatory solutions that are drafted towards teenagers and lonely students.

The low point of the proceedings came when the Bishop of Manchester mentioned that piracy breaks the Lords commandment “Thou shall not steal”. Better argument in favour of secularism I have never heard.

I am a glass half-full kind of person, so I must recognise that there were some positive things in the debate. Lord Razzall at least mentioned proportionality and the principle of “innocent until proven guilty”. He also seemed very reluctant to give excessive power to the government to amend substantive copyright law through statutory instrument. Lord Razzall also was the only one to mention format-shifting, and hopefully we might get some change to the patently absurd status quo in the UK on that respect.

In another positive note, Lord Lucas was surprisingly clear-headed, and I felt that he was perhaps the only one who tried to imbue a bit of balance to the debate. He said:

“Lastly, I want to speak about copyright. I should declare my interest as my main activity outside this House is in producing copyrighted material and selling it in book form and very substantially on the internet, so the basic protections that copyright law offers are extremely important to me. However, I think that the Bill has to be careful to ensure that it looks after the proper interests of citizens. We have always allowed citizens leeway under copyright law. You can lend books to friends and, as has been said, you can even copy your music and put it on to different kit. It is well known that newspapers are read by many more people than buy them, and certainly I am happy to borrow them when they are left behind on buses. I think it is entirely reasonable that people have got used to a reasonable level of sharing of copyrighted material between friends and within small communities, so that it does not have to be purchased again for every instance that it is used. The figures produced to show the losses incurred by the creative industries through illegal downloads do not represent those losses, but reflect infringement of copyright. It is not at all certain how many songs or films would actually have been purchased if people had had to pay for them. Many of the people who are downloading in this way are not in a position to pay for more than they do already, so one must be careful about the terminology one uses.”

This brings me to the point of this post. The blogosphere, the Twittersphere, and pretty much anyone with an interest in digital copyright has already been making their opinions felt (see here and here). It is disheartening to see industry propaganda being wheeled out time and time again, and all of the informed and eloquent discussion seems to go unnoticed. I remember watching Lord Mandelson’s presentation of the Digital Economy Bill, where he clearly dismissed ORG and any other activists as a small digital minority of cyber-obsessives. The same thing happened during yesterday’s debate, where Lord Fowler made the following statement:

“The internet has achieved many good things, but it is equally clear that it has made that kind of abuse possible. It is clear that public interest heavily argues for action to be taken to prevent such abuse taking place. I understand that there are other views. We have all been inundated with advice on this matter. If you go to a recent BBC blog, you will see that three pages of what was intended as an objective discussion of the position was followed by 23 pages of comment, mostly from people who were passionately opposed to action being taken.”

So, 23 entire comment pages were filled with dissenting views, yet His Lordship did not believe that such vigorous display of democratic engagement was worth more mention than to demonstrate how the public’s opinion is to be summarily dismissed in order to serve the public interest, which seems to be suspiciously aligned to the interest of the big copyright industry. “Yes little people, you may tweet, blog and comment all you like, but we know better, and we will not deign to address any of your arguments”.

How do you counter such level of arrogance? Is it worth making more noise, if we will be continuously ignored?