Rights holders vs digital rights activists - who wins?
Last night I attended a debate about the Digital Economy Bill, held at Queen Mary law school. BPI public affairs chief Richard Mollet (smooth) and Open Rights Group boss Jim Killock (less smooth) were thrashing out issues such as suspension/disconnection, numbers of strikes, kids being cut off from their schoolwork, musicians losing millions, et cetera.
In case you don't get the flavour of the evening yet, here are a few representative quotes (the speakers took turns to give their presentations, so I've mashed up some choice bits without, I think, misrepresenting anyone):
Mollet: The aim of the Digital Economy Bill, as far as rights holders are concerned and I think government as well, is not to have a big stick.
Killock: Interfering with somebody's internet connection can be seen as an extremely harsh and disturbing thing to do.
Mollet: It isn't disconnection; it's suspension. It sounds like a semantic difference but, if you consider Hadopi, the French terminate [connections] for up to 12 months and don't allow subscribers to go to any ISP – that's disconnection. What is planned in the UK is suspension, [from] days into weeks into lots of months.
Killock: If you can't connect to the internet for a period of time, in what sense are you not disconnected?
Mollet: There is no human right to the internet.
Killock: Digital Economy Bill? More like the Analogue Preservation Bill.
Mollet: [There will be no] chilling effect on the web. It will have the opposite effect, an incredibly enervating effect on the web. It will lead to sort of services we want to see — bundled services with the ISP.
Hold up – let's examine this last suggestion. Mollet also said that bundled ISP music offerings don't exist yet because "there is the fear of piracy and copyright infringement in the background [and] we need the infringement measures to drive the new business models".
I asked him to clarify this a bit, because I failed to see the connection. He said: "The reason why there aren't those services is, the fear of rights holders and I think ISPs, is you are being invited to negotiate rights into a universe where you don't know how they're going to be used but you're pretty sure there is going to be some infringement of them."
Funny, then, that someone from a major ISP quietly told me at the event that the bundling argument was about money and, equally importantly, licensing — the music industry is trying to negotiate deals based on a label-per-label basis, and the ISPs know that consumers don't think in terms of Universal or Sony; they think in terms of 'music'.
Also speaking at the event was Graham Smith, partner at the law firm Bird and Bird. He pointed out something interesting...
You recall the whole fuss about Amendment 120a, which would add a new bit called 97b to the Copyright, Designs and Patents Act 1988? 97b would firm up 97a (itself an amendment introduced in 2003) so copyright holders could force ISPs to block infringing websites.
However, Smith pointed out, 97a already allows this. So, how many times have rights holders used their right to block copyright-infringing websites? Er, none. I asked Mollet why this was.
His response: "It isn't clear from a 97a action how costs are apportioned, but also not clear what injunctive relief you would get."
So why not bring a test case? Perhaps the industry was not sure it would win. Hence the tougher amendment to complement 97a and create an easy mechanism through which rights holders can force down sites.
But that could be about to change. Despite Mollet's certainty last night that Amendment 120a would stand, it now looks like it will fall, to be replaced by... something. We don't know what. All we know is that the government will, during 'wash-up' in the dying hours of the current Parliament, introduce and pass at high speed some new clause changing copyright law.
According to the BPI, this will lead to a rosy future of cheap, easy-to-use music services, where the artist and consumer are equally attended to. Let's see.