Musing about downloads in the UK

Some of you may have noticed that I like my cricket. And one of the things I like about cricket is the cricket story; the history of cricket is festooned with anecdotes and tales and apocrypha, filling a very large number of books. As with most other stories, over time, these stories gain a life of their own, with a series of embellishments and accoutrements; this is particularly noticeable when the story is about  larger-than-life characters, something that cricket’s cup runneth over with.

One such story involves one of the largest of the larger-than-life characters: Freddie Trueman.

The story goes like this:

Trueman bowls. Batsman is trapped plumb LBW. Trueman appeals. Not out.

Next ball. Trueman ever-so-slightly irritated. Trueman bowls. Audible snick, ball deflects and sails upward, caught behind. Trueman appeals. Not out.

Third ball. Trueman a little more irritated now. Trueman bowls. Through the gate, stumps spreadeagled, middle stump uprooted and cartwheeling. Trueman turns to the umpire and says with a wry smile “We nearly had him that time, didn’t we?”

We nearly had him that time, didn’t we?

Actually that’s the way I feel about recent discussions to do with downloads and filesharing in the UK.

First we had the Digital Britain Report. Lots of hard work, lots of interviews, lots of people given a chance to express their views and opinions.

The report had an entire chapter on Creative Industries in the Digital World. The chapter headings were Towards a New Framework for Content; Protecting and Rewarding Creativity; The Legislative Proposals; Legislation to Reduce Unlawful Peer-to-Peer Filesharing; Other Rights Issues: Fair Use; Modernising Licensing; Intellectual Property Office’s Copyright Strategy; Orphan Works;  Matched Penalties for Physical and Online Copyright Infringement; A Role for Rights-Based Funding Mechanisms; Interactive Content: Converting Creativity into Value; Digital Test Beds to Trial New Products and Business Models; Extending Existing Interventions to Interactive Content; Virtual Worlds; Digital Britain: Film, Cinema and Literature; Literature; Case Study: Retirees.

From that line-up, you would think that serious consideration had been given to most aspects of what is essentially a complex subject. The fact that we’re entering a new world, with new products, services and business models. The case for change. The legislative implications of that change, needing to reward creators while protecting the principle of fair use. And so on and so forth.

When it comes to legislation to reduce unlawful peer-to-peer filesharing, the report had this to say:

The key elements of what we are proposing to do are:

• Ofcom will be placed under a duty to take steps aimed at reducing online copyright infringement. Specifically they will be required to place obligations on ISPs to require them:
• to notify alleged infringers of rights (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful; and
• to collect anonymised information on serious repeat infringers (derived from their notification activities), to be made available to rights-holders together with personal details on receipt of a court order.

Ofcom will also be given the power to specify, by Statutory Instrument, other conditions to be imposed on ISPs aimed at preventing, deterring or reducing online copyright infringement, such as:

• Blocking (Site, IP, URL);
• Protocol blocking;
• Port blocking;
• Bandwidth capping (capping the speed of a subscriber’s Internet connection and/or capping the volume of data traffic which a subscriber can access);
• Bandwidth shaping (limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to selected protocols/services); and
• Content identification and filtering.

This power would be triggered if the notification process has not been successful after a year in reducing infringement by 70% of the number of people notified.

Remember, this was the outcome of a long period of formal consultation with people from all parts of the industries involved. Seemed a decent piece of work. And then what happened?

Then, the Secretary of State for Business, Inn0vation and Skills, announced plans to discard the proposals in the Report, and rather than go through a year-long trial period with non-technical measures, accelerate the move towards technical measures. Measures that ISPs have been united in opposing, for a plethora of reasons: rationale, lack of fairness, affordability and effectiveness being the main ones.

I thought to myself, when I read the Digital Britain Report, the hawks were plumb leg-before-wicket. They were out.

But no, the Secretary of State decided “Not Out”.

A little while later, I read another official document. This time it was the All-Party Parliamentary Communications Group, reporting on an Inquiry called “Can we keep our hands off the Net?”

This was another duly appointed committee going through its orderly business, seeking to answer five questions:

#1 Can we distinguish circumstances when ISPs should be forced to act to deal with some type of bad traffic? When should we insist that ISPs should not be forced into dealing with a problem, and that the solution must be found elsewhere?

#2 Should the Government be intervening over behavioural advertising services, either to encourage or discourage their deployment; or is this entirely a matter for individual users, ISPs and websites?

#3 Is there a need for new initiatives to deal with online privacy, and if so, what should be done?

#4 Is the current global approach to dealing with child sexual abuse images working effectively? If not, then how should it be improved?

#5 Who should be paying for the transmission of Internet traffic? Would it be appropriate to enshrine any of the various notions of Network Neutrality in statute?

There were ten conclusions regarding Question 1. Conclusions of an All-Party Committee duly set up to look at this issue. And what did they say? Here are some extracts:

We believe that voluntary arrangements would be the best way of tackling this issue and
note with approval the initiative which is already under way in Australia. Accordingly,
we recommend that UK ISPs, through Ofcom, ISPA or another appropriate
organisation, immediately start the process of agreeing a voluntary code for
detection of, and effective dealing with, malware infected machines in the UK.

2. If this voluntary approach fails to yield results in a timely manner, then we further
recommend that Ofcom unilaterally create such a code, and impose it upon the UK
ISP industry on a statutory basis.

We conclude that much of the problem with illegal sharing of copyrighted material
has been caused by the rightsholders, and the music industry in particular, being
far too slow in getting their act together and making popular legal alternatives
available.

We do not believe that disconnecting end users is in the slightest bit consistent with
policies that attempt to promote eGovernment, and we recommend that this
approach to dealing with illegal file-sharing should not be further considered.

We think that it is inappropriate to make policy choices in the UK when policy
options are still to be agreed by the EU Commission and EU Parliament in their
negotiations over the “Telecoms Package”. We recommend that the Government
terminate their current policy-making process, and restart it with a new
consultation once the EU has made its decisions.

Let me repeat one of those conclusions. ” We conclude that much of the problem with illegal sharing of copyrighted material has been caused by the rightsholders, and the music industry in particular, being far too slow in getting their act together and making popular legal alternatives available.

So this time I thought to myself, definitely caught behind. But the Secretary of State for Business, Innovation and Skills had other ideas.

He’s announced that formal three-strikes legislation will be in place for April 2010.

Not out.

But it isn’t time for us to give up hope as yet, despite the presidentially non-consultative hide-head-in-sand approaches in evidence. Very recently, I saw the possibility of help from a most unlikely quarter: Disney.

Here’s a quote from the CEO of Disney:

The business model that underpins the movie business is changing,” Bob Iger told the Financial Times in an interview published on Monday. “If we don’t adapt to the change there won’t be a business — that’s my exhortation to my team.”

The newspaper said Iger advocated a fundamental rethink of the costs associated with movie production and marketing.

And I thought to myself. What a shame. Britain could have led, should have led, the world in a complete rethink of the principles, practices and legislation required for a thriving digital world. Instead, we’re about to take ten steps back while Disney, of all people, move forward.

Good for Bob Iger. Good for Disney. Someone has to change.

And, as I saw the wicket spreadeagling, I turned to the Secretary of State and said, wryly, “Nearly had him that time”.

Credits: Trueman photo hanoiswans; leg-before-wicket photo Wikimedia Commons; caught behind photo cricketweb.net; wicket spreadeagled story tribuneindia.com.