The view from someone else's yacht: Mandelson defends new filesharing hunt

Is that the sound of deckshoes I hear approaching? Why, yes, it's Peter Mandelson writing about the new proposals for treating filesharers illegally in today's Times. Even the headline is flawed:

Taking something for nothing is wrong . . .
. . . that’s why we must stop illegal file sharing and give the creative industries a breathing space

Taking something for nothing is wrong? Really? Harvesting blackberries at a roadside is wrong, is it? Helping yourself to apples from a bowl which says "help yourself" is wrong, is it? Having a lovely, lovely evening on a creative industry executive's yacht and not dipping your hand in your pocket is wrong, is it, Mandelson? Taking large payments from Bernie Ecclestone for nothing in return would have been wrong?

It used to the Tories who we worried would try and find a way of charging for the air that we breathe, enraged that it come for free. It looks like it still is; they're just sat on the other benches.

But, my Lord, we're running ahead of ourselves. Do explain your argument:

It was said this week by a former colleague of mine (anonymously, of course) that I do not “get the internet”. While I am still something of a novice when it comes to streaming and downloads, I have been around long enough to know that piracy is wrong.

To be fair to Peter, he's not the only person who gets this so wrong, and thinks that he's taking part in a battle against "pirates" rather than being used to try and artificially inflate the price of audio and video files online. The schoolteacher tone more than demonstrates that, no, he really doesn't get the internet, or basic economics, at all.

It's that lack of understanding of economics - that where supply is unlimited and production costs near to zero, there's no business in charging for that product however much we might wish there was - that is perhaps worrying. It'd be worrying in any grown-up, but in a senior member of a government, it's a bit like discovering that your pilot is suffering from glued-shut eyes.

Of course, Mandelson didn't get where he is today by being so dull, so it's more than possible he's just pretending that what he's proposing is nothing to do with stopping pirates and everything to do with trying to artificially inflate prices. He wouldn't say that in public, though, would he?

That is why my department decided to consider strengthening proposals to tackle illegal file sharing and downloading.

But if - by your own admission - you don't really understand what you're talking about when you say "downloading", how can you hope to regulate wisely and fairly? It's like putting someone who lives in a shack with no electricity in charge of Ofcom - how can you make subtle decisions if you don't have experience of the market you're regulating? It's no wonder you'd fall back on nursery half-witticisms like "pirates are bad" if you're an amateur in the field in which you're dabbling.

And if the file-sharing of which you speak is illegal, then why not use the laws that make it illegal to stop it? You'd not stand up and announce self-satisified proposals to outlaw illegal murdering, as you know it would make you look like a bit of a tit, right?

The thinking behind this is clear and has nothing to do with dinners in Corfu.

This is Mandelson's only reference to his recent jolly with Geffen and Speilberg - as I've observed before, if his department was really considering these proposals before he took their largess, he is guilty of a terrible error of judgement and should be considering his third ignominious resignation.

The Government decided to reopen the issue of suspending internet connections as a sanction of last resort against the most egregious offenders for two simple reasons.

Geffen's most excellent port and Speilberg's delicious cheeseboard?

First, taking something for nothing, without permission, and with no compensation for the person who created and owns it, is wrong.

Well, he's clarified the headline, at least. That "and" is fascinating - not "or". Mandelson is actually suggesting that if someone is happy for you to help themselves to their apples, it's wrong.

It sounds, though, like a fair point. If you can shake the image of that time Faith was in Buffy's body mouthing "you can't do that... it's wrong... I'm gonna kick your ass", you might find yourself nodding and saying "well, that's inarguable."

But equally, charging for something that is in abundance is impossible. It's like dropping a ten pound note on the street - yes, morally, the finder should seek out the lawful owner and return the ten pound note. But nobody does, and - frankly - you wouldn't expect someone who slips the tenner in his pocket to then be banned from walking down the street for three years as a result.

Mandelson doesn't get the internet. He doesn't get the philosophical difference between the song, and the file. It would be wrong, certainly, to force Noel Gallagher to record an album at gun point and not reward him for that. But is sharing an mp3 really the same as that? If it is, would sitting outside a window listening to someone play guitar also stealing if you don't pay them for their time?

This is not a conversation about things, it's a conversation about ideas. It's abstract, and trying to slap on the simple morality of what would happen in a shop doesn't work. The trouble is that if you attempt to discuss this, the copyright industry just barks that you're trying to rationalize wrong-doing, rather than offering an answer to the questions.

Mandelson has a second point, though:

Second, our creative businesses drive much of our economy. They provide not only tax revenues and jobs but also ensure that Britain punches above its weight on the global cultural stage. We are a creative people and we do these things well. These businesses will get no favours from government, but we should create a regulatory environment where they can operate without having to deal with illegal competition.

Britain "punching above its weight on the global cultural stage" means, I think, that we're still the number one supplier of evil villains to Hollywood movies, and The Rolling Stones still jaunt around every so often raising money which, erm, doesn't supply tax revenues as they organise their affairs to avoid that happening as far as they possibly can.

It's funny that they're not getting any favours from government, though, while one part of the government is ripping out a large chunk of the Digital Britain report and rewriting it in terms that could have been dictated by the creative industries. You wonder what a favour would look like.

It is true, though, that creative industries do raise a lot of money and keep people in jobs. The asbestos and tobacco industries also threw a lot of cash into the pot - as did the children-up-chimney industry. Do we calibrate our rules according to how much cash there is to throw around from an industry these days?

And is simply protecting a small number of large, mostly-foreign based corporations really the best way to ensure we have a healthy number of people making things? Isn't it at least as possible that locking most of the inventiveness into exploiting things already made is the best way to spark the imaginations of the next generation?

Mandelson then rambles on for a bit about how it would lovely if ISPs and copyright holders could work together to create ways of fleecing the public - sorry, exploiting the copyright:

It’s that which will effect the sea change that we are looking for.

Well, no, Peter. iTunes has managed to scramble out and turn a profit without the need for anyone to throw people off the internet first; the suggestion that the non-winnable battle against piracy must be won at all costs before there's room for a market is just ridiculous.

To those who have raised their voices about the proposed changes this week, let me say that I hear their concerns. I have read their blogs and can live with the abuse (I’ve had worse).

Of course you have - you're a devious, dishonest politician who does favours for his mates. Of course you've had worse abuse.

I made clear to the content industry that we would consider legislation that includes temporary account suspension only if it was seen as the sanction of last resort.

That doesn't really make it right, does it? "We'll only shoot the prisoners if all else fails" isn't exactly a stance against capital punishment.

It would only follow a well-established series of warnings and clear evidence that they were taking action to defend their own rights. This will not turn your ISP into Big Brother. The process is driven by rights holders reporting activity on public file-sharing websites rather than service providers monitoring individuals’ internet traffic.

Mandelson, you'll notice, is not worried at all about the idea of a private company snooping on people's online activities, just so long as it isn't the ISPs.

I want to know more from digital rights groups and consumers about other steps that should be taken to protect people who may feel that they are at risk of being accused without good cause.

That's big of you. Perhaps you should have spoken to them before issuing a press release? Or does the EFF not have a yacht?

This could perhaps be because of legitimate file sharing, or because of others hijacking their connection. Having a fair, fast and effective appeals process will obviously be essential.

No, Peter. What would be essential would be for there to be a proper, due process - not the rushed job you're supporting with an equally rushed appeals panel. You're talking about cutting people off from their banks, their education, their jobs. You need to be bloody sure you're right before doing that - and right in the eyes of the law, not some chap from EMI.

We are fast approaching the tenth anniversary of the trial in which Napster.com, the site that enabled the first real boom in file sharing, was shut down after legal action by record labels. This legal action was hugely expensive, time-consuming and ultimately did little for consumers. Why? Because it failed to encourage rights holders to develop new business models and did nothing to seek to change consumer behaviour. A decade on, we have another opportunity, and for some in the content industries, perhaps the last.

Pete doesn't get the internet. He doesn't see that Napster did an awful lot for consumers - there wouldn't have been any impulse to take music online, into an environment where it can't be controlled, and the unit cost has shrunk, without Napster. The trial, he's right, was long and expensive. And closing Napster did nothing for consumers. But it wasn't consumers who had the problem with Napster in the first place. It worked well for us.

Mandelson's final flourish, though, sounds like it comes from a different article:

The age of flogging a CD in HMV for £20 is well and truly over. Ask me what I think will finish off piracy as a real threat to our creators and creative businesses and the answer is obvious — it is the market.

Provide customers with a good quality, cheap, safe and efficient experience, and they will ditch illegal downloading. If the threat of temporary account suspension and its implementation in a small number of cases helps to build a market to make this happen, then I believe it is worth our serious consideration.

... well, apart from that last sentence. But you almost want to grab him by the lapels and say "yes, my noble Lord... if you build a better mousetrap, people won't waste their time hanging out by the skirting board with hammers. Even though they could do that for free, they'll gladly pay you a fair price for that ease and simplicity."

What has driven the labels to come to their sometimes grudging agreements with Apple and YouTube and others is the sort of activity that Mandelson is targeting. The inspiration is the disruption and the disruption is the inspiration. Why, then, Mandy, why are you trying to build a system in which the creative industries don't need to be creative, and can use draconian measures to try and protect a market of selling back catalogue at inflated markets through the same old system?