Government dumps plans to cut internet from file sharers

Almost as if every single vote counted, the government has announced that it won't be bringing forward plans to disconnect filesharers found to be using unlicensed files:

In a response to a petition on the Number 10 website that petitioned Gordon Brown "to abandon Lord Mandelson's plans to ban individuals from the internet based on their use of 'peer to peer' file sharing", the government says: "We will not terminate the accounts of infringers – it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases."

It's not totally withdrawn the threat, though:

"We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed."

So they're saying they won't buy the big dog, but might still visit the kennel if Ofcom says they should.

It's not like Brown wants to come off like some sort of bully.

Stacking the cards in the labels' favour

As the Digital Economy Bill makes its way through parliament, it attracts amendments and its shape clarifies itself.

For example: if you get accused of listening to music without a licence, and your internet connection hangs in the balance, you have a right of appeal, yes?

Well... sort of. Only if you can afford it:

People wrongly accused of illegal downloading would be able to appeal the disconnection before it happened and could be charged by Ofcom, the media regulator, to cover the administrative costs of the appeals process run by the Tribunals Service.

So, to clarify what Mandelson's bill is proposing: if you're unjustly accused of sharing material without the correct licence, you're still going to have to pay a levy to a government body to keep your internet connection.

The whole concept of copyright has gone so far from being about fairness, it's perhaps not surprising that those innocent of all charges will end up out of pocket just to keep access to their blameless connection. The record labels want this; they should fund this.

Government scuppers own initiative

It's a brilliant idea: the government is going to subsidise computers for the poorest families in Britain, acknowledging that access to the internet is a vital part of modern education and citizenship.

What a pity that Mandelson is busily undermining this initiative from the other end, colluding with the music industry in pretending that internet access is a luxury and promotes a plan which will make it impossible for the families receiving the computers to afford to be online.

Mandelson plots whim-based copyright legislation

Some really disturbing news from Boing Boing about what it claims Milord Mandelson is cooking up to drop into the Digital Economy Bill:

These changes will give the Secretary of State (Mandelson -- or his successor in the next government) the power to make "secondary legislation" (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).

This is good news for any rich man who can offer Mandelson canapes on a yacht - no more pesky having to wait for parliament to do their bidding; he can have their new rules in place before the second glass of wine is poured.

There's more:

Mandelson is also gunning for sites like YouSendIt and other services that allow you to easily transfer large files back and forth privately[...]. Like Viacom, he's hoping to force them to turn off any feature that allows users to keep their uploads private, since privacy flags can be used to keep infringing files out of sight of copyright enforcers.

Well, yes. It also allows you to keep things that are private private. For legitimate reasons. Effectively, since YouSendIt is an FTP replacement, you could argue that Mandelson is arguing that anything online would have to be made open - who knows what's going on on behind those sign-in boxes, eh?

It's a ridiculous idea, which almost certainly wouldn't stand up to the passage of legislation in the Com... oh, hang on: under the new rules, it wouldn't have to.

As principles to fight for go 'British law shouldn't be made on David Geffen's yacht' is a pretty strong one.

Bookmarks: Some stuff to read on the internet - Cory Doctrow

Cory Doctrow takes to The Times to patiently explain to Peter Mandelson why it won't work:

Fifteen years of draconian copyright regimes show that when you create powerful enforcement tools without any consequence for misuse, they get misused. And half a century’s worth of evidence on digital technology shows that no amount of enforcement will make computers and the internet worse at copying. Hard drives won’t get magically bulkier and more expensive. Networks won’t get less accessible, slower and harder to use. General technological literacy won’t decline. If you want copying to stop, physics is not on your side.

Mandy plans the cut-off

Speaking at C&binet, Peter Mandelson has announced his intention to press on with plans to let media companies have people thrown off the internet. In an act of craven cowardice, though, it won't happen until Labour are likely to be out of power:

The effectiveness of the warning letters to persistent illegal filesharers will be monitored for the first 12 months. If illegal filesharing has not dropped by 70% by April 2011, then cutting off people's internet connections could be introduced three months later, from the summer of that year.

Enough to have Dick Geffen invite him back to the yacht, but without the nasty having-to-face-the-European-Court-ruling attached.

Mandy, of course, is convinced he's being reasonable:

"If we reach the point of suspension for an individual, they will be informed in advance, having previously received two notifications – and will have the opportunity to appeal," Mandelson added. "The British government's view is that taking people's work without due payment is wrong and that, as an economy based on creativity, we cannot sit back and do nothing as this happens."

Does the British Government have a view on using unfair legislation in order to artificially inflate the price of online sales?

Self-selecting subset of musicians propose pointless fudge, congratulate selves

It's important to remember that - even although members of the FAC, Lily Allen and Sandie Shaw turned up and had a lovely vote last night, to talk of this as somehow representing the views of musicians is confusing "a few acts on major labels" with "musicians", and so should be read as another subset of interested parties rather than a representative approach.

But what did they decide last night?

After a three-hour meeting in London, the Featured Artists Coalition, which emerged as a breakaway lobby group in the summer, backed the government's proposed introduction of "technical measures" to combat the rising tide of copyright theft. If they ignore two warning letters, persistent illegal filesharers should have their broadband connections throttled "to a level which would render filesharing of media files impractical while leaving basic email and web access", according to a statement after the meeting.

Well, that's just a pointless, meaningless fudge, isn't it? Either you throttle the connection to the point where it has an effect - which will mean it'll stop anything worthwhile happening online, which is the same as removing web connection altogether - or you'll just leave those accused by the music industry able to use the web in a meaningful way, which makes it an empty threat.

There doesn't seem to be any point in this suggestion. Either you believe that the right to participate in society and access to communications is a basic human right, or you don't. It's like proposing a punishment for drunk-drivers which would see them still able to drive, but with a speed limiter that stops them going above ten miles an hour.

Meanwhile, UK Music have sent a letter to Lord Mandelson which, once again, proves they don't actually understand the technology in which they profess to be expert:

"We support government proposals which would see internet service providers (ISPs) send notifications and apply technical measures to impede and discourage the use of unlicensed peer-to-peer networks and to encourage the use of legitimate services.

"We agree that a clear distinction should be made between how technical measures are applied to the casual infringer, compared to how they are applied to the persistent infringer, with temporary suspension of broadband accounts being applicable only as a last resort."

"The use of unlicensed peer-to-peer networks"? Do UK Music not really understand the difference between the peer-to-peer network (which may or may not be licensed) and the sharing of files without copyright owner's permission? Do they really not understand the problem they're trying to "solve"? Are they suggesting that the networks themselves need to be licensed, rather than the files?

It's insulting to call Sharkey and his chums Luddites. At least Ned Ludd understood the technology he was attacking.

Mandelson enjoys record industry day out; sings record industry song

How lovely for Lord Mandelson to have a day trip out to the music industry PR establishment, The Brits School. Once again, he's taken the opportunity to try and normalise the idea that private companies should have the power to demand people are thrown off the internet:

“Downloading somebody’s work without paying for it – whether it be music, film or computer games – is not a victimless act. It poses a genuine threat to our creative industries and to the livelihoods of talented, hard-working people striving to get a foothold in them. It’s essential that the voice of young artists is also heard,” he said.

“In the end this problem will be solved not simply by new laws but by new approaches to doing business. We believe that temporary account suspension as a last resort, in the most serious cases, is worth considering to allow these new business models to develop.”

The mention of new approaches to doing business is welcome - because, when your business has changed beyond recognition and the market price of your basic product has fallen to almost zero, that's what you have to do. The banging the drum of the "temporary" suspension - and will we ever get to see a suggestion of what 'temporary' might mean? - suggests that the message hasn't really got through.

Do I need to run through again the arguments why downloading a file might actually be victimless act? (Mainly, because there's no direct correlation between an unpaid download and a lost sale.) Do I need to run through again why it's just possible that upholding a four-company cartel throttling the access to the marketplace might not be the best way to give artists a chance to be heard? Why filesharing can offset some of the skewing of the market in favour of the Big Four?

It's forgiveable that Lily Allen waffles and pops when talking about filesharing - as I've said before, however wrong she might be, she's at least engaged with the process. But Mandelson is supposed to understand this sort of thing, and he's making the policy - and yet he gives no indication he's thought about this any further than reading through a discussion paper, funded by the intellectual property industry, over a good lunch, also funded by the intellectual property industry.

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?

UK Music: "We don't want to get our hands dirty"

Music Week's coverage of Mandelson's yacht rules includes an unnamed UK Music spokesperson. In the middle of the clapping and giggling, there's this:

More than that, [the] trigger mechanisms [that had originally been proposed by Digital Britian] would have required our members to take legal action against individuals – a move the UK music industry has consistently resisted.

Yes, consistently resisted the idea that, erm, the copyright industry should pay to police its own copyright. Given that these businesses mainly exist to exploit intellectual property, isn't refusing to pay the cost of protecting the property a bit like a builder wanting somebody else to pay for his hod and cement mixer?

[Thanks to Peter D for the link]

Is Mandy on the yacht? Government issues file-sharing proposals

The new, stricter proposed rules for filesharing that were dictated to Peter Mandelson during his time on Geffen's yacht - sorry, I mean "totally coincidentally being drafted while Mandelson just happened to be hanging out with Geffen and Spielberg"; I think must be something wrong with my keyboard - have been published today.

The reason for throwing away the more carefully-considered approach developed in the Digital Britain report is being given as "Steven Spielberg asked us to, while passing the port to Lord Mandelson".

Sorry, that should read:

previous plans would take too long to implement "given the pressure put on the creative industries by piracy".

Ah, so in other words: instead of a measured approach, let's just hit people with bottles.

"We've been listening carefully to responses to the consultation this far, and it's become clear there are widespread concerns that the plans as they stand could delay action, impacting unfairly upon rights holders," said Treasury minister Stephen Timms, who is responsible for implementation of Digital Britain.

"... so we've decided to pass all the unfairness on to the public, instead."

Under the tougher proposals, internet service providers would be obliged to block access to download sites, throttle broadband connections or even temporarily cut off access for repeat offenders.

Communications regulator Ofcom would report regularly to the business secretary, Lord Mandelson, providing evidence of whether such action is required against illegal filesharers.

Ah, blocking access to "download sites". Thereby making their legitimate uses fail, while simply encouraging unlicensed filesharers to migrate to another download service.

And surely even Timms understands that you can't throw people off the internet. Especially not at the whim of EMI. You can make a law which removes people's ability to participate in society, and it's childish and wasteful of this government to pretend you can. And offensive that they think they should.

Maybe Timms hasn't read the Digital Britain report, but one of the key themes is removing digital exclusion. How can it be that one part of government is trying to get everyone hooked up, while another part is running round trying to pull people off.

Broadband throttling is a bit of a hoot in its own right - the way Thatcher, Major, Blair and Brown governments have allowed the communications industry to limp along in the UK, it's unlikely that many people even have an internet connection good enough to notice if their connection got throttled. Or perhaps they've just introduced throttling for all?

Welcoming the move, the chief executive of music industry trade body the BPI, Geoff Taylor, said that digital piracy posed "a real threat to the UK's creative industries". "Today is a step forward that should help the legal digital market to grow for consumers," he said.

Geoff, bless him, can't really explain why blocking access to Rapidshare would "help the legal market grow", because he knows in his heart that there's precious little linkage between reducing unlicensed filesharing (even if such a thing were possible) and persuading people to pay seven quid for the Dolly Rockers album.

Indeed, for the RIAA and the BPI, the war on piracy has long since borne any real connection to the industry the bodies purport to represent, and has instead become a religious crusade. If they want to continue to pour the millions their member companies have borrowed from the banks into a black hole, that's fine. But should an elected government really be enabling their fantasies to go further?

Lord Mandelson: What a charming guest he is

There is nothing, nothing at all, profoundly undemocratic about Peter Mandelson having a delicious dinner paid for by David Geffen and Steven Spielberg and then suddenly demanding that something must be done about internet filesharing.

After all, any one of us could buy Mandelson lunch and have him change the emphasis of government policy as a result, right? I hear that for a Pret A Manger sandwich and a soup, you can get the positioning of letter boxes in Slough changed; throw in a Krispy Kreme donut for desert and Mandelson will look in to having planning law changed to let you put a dormer window in your greenhouse.

Mandelson is denying that there is any link between his having a gorgeous, slap-up meal on the copyright lobby and the sudden ordering of officials to draw up what The Sunday Times call "draconian" plans:

A Whitehall source said: “Until the past week Mandelson had shown little personal interest in the Digital Britain agenda. Suddenly Peter returned from holiday and effectively issued this edict that the regulation needs to be tougher.”

A spokesman for Mandelson refused to comment on the planned internet clampdown. “Work has been ongoing on these issues for a matter of weeks,” he said. “Lord Mandelson does not believe Digital Britain is even on David Geffen's radar. There was no discussion on this with Geffen.”

Of course, it might all be a wonderful, magical coincidence - on a par with finding the face of Herbert Morrison on a slice of toast - but the denial doesn't actually give much confidence, as a response to 'did you allow Geffen and ET-boy to make Her Majesty's Government policy' which says 'I don't think David Geffen has even heard of the Digital Britain report' isn't really a denial, is it?

But let's take Mandelson's spokesteam at their forked-tongue word for a moment, and assume that Mandelson's department had been working "for weeks" on policy relating to copyright. What would that make Mandelson's decision to go off and have an evening being wined and dined by two people with a direct interest in those policies? If he had come back and started the process, that would make him look easily bought; if he had already been working on it when nipping off to eat Geffen's goat's cheese terrine, that makes him guilty of a terrible misjudgment.