The Digital Economy Bill: Thinking further about copyright

Image courtesy of Drew Douglas duly attributed here

The photograph above was taken at a rugby league game in Port Moresby, Papua New Guinea, in September 2008. In it you can see young children and older youths watching the game from rooftops adjacent to the stadium.

Tho photograph below, nearly a hundred years earlier, shows fans watching a 1914 World Series game in Shibe Park. My thanks to explorePAhistory for sharing the photo.

Two photographs.  Nearly a century apart. Of people watching a sports game without paying.

The question is, were they stealing? Would you call it stealing? I wouldn’t. But I know some people who would.

People involved in the distribution of published material have tried their best to call such actions “stealing” since the beginnings of copyright. If you really want to understand what copyright is about, what its origins were, then please go and read this excellent piece. It tells you why copyright had everything to do with distributors, distribution and central control and very little to do with authors, musicians and artists. Why it had everything to do with censorship and exclusivity and very little to do with creativity and free expression. In fact, if you get the chance, spend time at; there’s some very useful material there, including this video, Copying is Not Theft.

After 9/11, there were people who tried very hard to conflate “Muslims” with “terrorists”. I have many Muslim friends, and none of them is a terrorist.

During Katrina, there were people who tried very hard to conflate “citizen” with “refugee”. Citizens have rights; refugees rely on the generosity of others. The rights of New Orleans citizens were sought to be weakened by the conflation, a technique that  George Lakoff wrote about quite eloquently.

So it is with copying in a digital world. People are trying to make you believe it is stealing. To understand what’s happening, let’s look at the ticketless folk watching the rugby and the baseball from the rooftops.

What are they stealing?

In the same photograph, you can see folks who paid for the tickets watching the game. They’ve paid for the right, and they’re watching the game. The people who sold the tickets make their money, related to the seating capacity of the stadium and the number of tickets sold.

Economists call such “goods” nonrival, to the extent that one person enjoying the good does not detract from the ability of others to enjoy the same good. The people who promoted the games did not incur any costs related to the people on the rooftops. If you can make a copy of something without in any way affecting the ability of others to enjoy that something, economists call such goods extreme nonrival goods. Sunsets and panoramas and views are examples of extreme nonrival goods, as are openair concerts and street theatre.

All these openair events share something in common. They’re in the open. Repeat that. They’re in the open.

People who promote sports events and street entertainment and openair concerts understand this. They know that as a direct result of their actions, others will be able to enjoy what’s happening. For free.

They can stop this. Very easily. By not using open spaces to do this. If they moved openair concerts to closed venues, the possibility of others freeloading diminishes. This open-to-closed spectrum is a continuum rather than a set of discrete outcomes. So, for example, you can build walls around openair venues, as happens with Kenwood. I have paid for, and enjoyed, many concerts at Kenwood, in the wet and in the dry. This summer my children will be going to concerts in Reading, and they will have paid for the tickets. Passers-by will be able to hear the music, but nowhere near as well as people sitting in the roped-off areas.

Shibe Park, in Philadelphia, decided to do something about the onlookers. So they built a bloody great wall around the stadium. Shame, but that is how some people think.

This summer, there are a few concerts taking place around Hyde Park, with tickets and with reserved areas. Can you imagine how it would be if the promoters managed to convince the Crown that a 16ft wall should be erected all around the park, just so passers-by won’t be able to catch glimpses of the concerts?

In a way, that’s what music and film distributors want to do with the internet. Like Hyde Park, the internet is a commons, something that has been designed with openness and sharing in mind, something that can be enjoyed by people without detracting from the enjoyment of others.

But only if we stop people from erecting hideous walls around the commons.

The Digital Economy Bill seeks to do this. And it’s worse than that. Because it seeks to protect and enhance distributor rights while actually damaging the rights of consumers and creators in many walks of life. Photographers, for example, are heavily affected. Just read Kevin Marks here and Simon Phipps here, or go to Open Rights Group to find out more about what you’re about to lose.

Think about this. If internet copying was really stealing, then there would be an active disincentive to produce digital works. Yet, in the apparent heyday of internet copying, every form of digital publishing is on the rise. There are more books being written and published, more films made, more albums released. Why would this be? Looking for that answer, I spent some time with Paulo Coelho some years ago:

I wanted to talk to Paulo for one simple reason: I’d heard rumours that the biggest pirate site for Paulo Coelho books, Pirate Coelho, was actually paid for by Paulo Coelho. In fact that has since changed: Paulo now hosts them in a subdirectory of his own blog, here. An author who pays others to rip him off? I needed to talk to him.

His answer is best understood in this statement from Wikipedia: In total, Coelho has sold more than 100 million books in over 150 countries worldwide, and his works have been translated into 67 languages. As an author, he wanted to reach as many people as possible, particularly in different cultures and geographies. His publishers had their way of doing this. His fans had a better way.

The internet, with its extremely low cost of copying and distributing things digital, transforms the access and distribution landscape for many industries. Its effect is felt most painfully in the publishing industries: music, film, journalism, books. The pain is at its most intense for those whose function with the industry was centralised control of distribution.

I work for a telco. Before that, I worked for an investment bank. Some time before that, I worked for hardware manufacturers with proprietary operating systems. All my life I’ve been working in industries where the core monopoly rights of the industry have been taken away by technological advance, often aided and abetted by regulation.

Regulation is first and foremost meant to protect customers, to protect the consumer. It does this in many ways, at least one of which is in preventing monopolies and reducing any significant market power.

When it comes to music, film, books and journalism, things become very complex. It’s like having a fire in the fire alarm system. The very people charged with telling you the truth about what’s happening are themselves affected by what’s happening. Which means that with a few exceptions, mainstream media have not woken up to the wholesale damage being planned by the Digital Economy Bill.

Let me end with this. Copying per se is not stealing. After Michael Jackson did his moonwalk, children the world over copied him. They were not stealing. Digital forms of music, film, book and newspapers are cheap to copy and to distribute, because of the internet. The internet is a commons, specifically designed for doing this. For copying and distributing. Throwing that away just to protect the “rightsholders” is questionable in the extreme. Digital assets are nonrival goods, shareable without affecting the rights of anyone else to enjoy the same thing.

  • Distributors of digital content are feeling the pressure, and some are using questionable techniques to lobby Government into acting.
  • The data on illegal downloaders is suspect, as is the claimed revenue losses. Price elasticity of demand is not adequately allowed for. It’s like saying kids on the rooftop would otherwise have paid for tickets to watch the rugby. Just not true.
  • The people involved in the process are suspect, largely unelected, and with clear bias supporting the very industries under threat. [This is a bit like placing an investment banker at the head of Treasury and asking him to solve the woes of financial markets. Oops.].
  • The democratic process itself is being subverted, lobbyists are seeking to ensure that the Bill is not properly debated in Parliament before being passed. To me this is more criminal than anything the Bill seeks to prevent.
  • The punishments suggested are technically complex, expensive, time-consuming and guaranteed to fail. They will waste a lot of time and expense, your time, your expense. Our time, our expense.

We have very little time to act. So please please get going, write to your MP, call her up, meet him, do something. Start off with reading this, make sure your voice is heard.

The Digital Economy Bill: Be Careful What You Wish For

Do you find it easy to be moderate about things? It’s taken me a long time to learn about moderation, about knowing how to leaven and temper my passion with patience. For most of my life I’ve been an extremist, either full-on about something or not at all engaged. As a result, particularly of late, I’ve had to take time to learn one thing: If you feel really passionate about something, take the time to step back and look at things from the opposite perspective.

Now the Digital Economy Bill is something I feel passionate about, which is why, as we approach Tuesday 6th April 2010,  I’ve been writing a post a day on the subject for the past few days. The Bill covers a litany of subjects; the particular bit that bothers me is to do with the treatment of downloaders, the what, the why, the who, the how, the whole shooting match. As far as I’m concerned, I feel that the premise is wrong (illegal downloading does not take place at the levels claimed); the people are wrong (the Bill is being pushed through by unelected people who have clear bias in favour of “rightsholders”); the process is wrong (such an important Bill should not be finagled through parliament without proper debate) and the punishment is wrong (as BT CEO Ian Livingston pointed out recently, a fine is more appropriate for the crime, it’s easier to administer and it does not affect others in the household).

Notwithstanding all that, let me try and look at this issue from the perspective of the “rightsholder”. In fact let me go further, let me look at it from the viewpoint of the rightsholder after the Bill, in its current state, has become law. Ostensibly as happy as a creature of the porcine persuasion in an environ of excrement.

What could possibly go wrong? Let me count the ways:

1. People stop downloading all digital music, not just “illegal” music

Retaliation: The music industry, particularly through organisations like BPI and IFPI ,has spent a long time telling its customers what rotten people they are. In the latest report issued by Ofcom, the country had around 17.3 consumer and small business broadband lines; which suggests that a very high proportion of digital music customers acted illegally. Irritated by the change in law and by being treated like criminals, people may just give up and stop downloading music altogether, legal as well as illegal.

Fraud: Given the level of internet fraud going around, people may not want to take the risk of losing their broadband connection by buying music in good faith from a pretend-legal site. When they buy anything else, they tend to get their money back from the credit card company. When buying music, even in good faith, they run the risk of losing their broadband connections. So they stop buying music online altogether.

Streaming: Man’s ability to record and replay music is itself less than 150 years old. Newer than the postage stamp, newer than the locomotive, newer than the Grand National, newer than the FA Cup. By British standards, recorded music is a mere stripling, a callow youth. Man’s ability to own the recorded music and retain it for personal enjoyment is even newer, it hasn’t been there that long. And it may not be in vogue for long either: there is a growing body of evidence that the Millenials prefer streamed music to owned music. My own habits have changed. I still buy vinyl, but in dribs and drabs. I still buy CDs, but also in dribs and drabs. For the most part, I use services like Spotify.

So whether it’s frustration or fear or a change of habit, people may use this opportunity to stop downloading altogether. Since digital music sales are reported to be booming, the industry runs the risk of killing the baby goose before it really has a chance to lay any golden eggs.

2. People stop downloading music illegally, but there is no materially positive impact on revenues

Download levels estimated wrongly: The Mandelson 7 million figure turns out to be hogwash. [And, like Churchill, I shall resist the temptation to say I told you so]. So even though everyone behaves legally when it comes to downloads, the market uplift just isn’t there. [ I am so tempted to ask that, in the event of the law being passed unchanged, the music industry is asked to put down 15% of the loss figures it has claimed into escrow in advance,  to pay ISPs for the cost of implementing the technical solutions].

High price elasticity of demand: The pirated downloads might have been real, but there is greater price elasticity of demand than was anticipated by the industry. Rolex watches sell for thousands of pounds. Rolex ripoffs sell for tens of pounds. No one in Rolex honestly believes that the customer who paid a tenner for a ripoff was a real contender for paying five hundred times that for the real thing.

The end of try-before-you-buy dampens sales: There is evidence that people who download music are also the ones who buy digital music. After all, they must have the connections, the access and the equipment in the first place. By being denied the chance to try the music out, they may not buy at the levels they used to. So any uplift in digital revenues via the change in law is compensated and balanced by a drop in the revenues that used to be there.

It is one thing to lay out a whole series of “facts” in order to browbeat busy politicians to do something; it is another altogether to expect that those “facts” become real in the process. In this respect, the Digital Economy Bill may turn out to be a case of shutting the stable door after the piglet has bolted.

3. People stop buying from established labels and channels and move to new, independent channels that offer them what they want

In a fascinating study entitled The State of Music Online: Ten Years After Napster, the Pew Research Center makes the following, telling,  observation:

While the music industry has been on the front lines of the battle to convert freeloaders into paying customers, their efforts have been watched closely by other digitized industries — newspapers, book publishing and Hollywood among them — who are hoping to staunch their own bleeding before it’s too late. And if the music market is any indication of how consumer expectations will evolve elsewhere, the demands for free content will extend far beyond the mere cost of the product.

In the decade since Napster’s launch, digital music consumers have demonstrated their interest in five kinds of “free” selling points:

  1. Cost (zero or approaching zero).
  2. Portability (to any device).
  3. Mobility (wireless access to music).
  4. Choice (access to any song ever recorded).
  5. Remixability (freedom to remix and mashup music).

All of this makes for a tall order, but if history is any guide, music consumers usually get what they want. And as researchers look back on the first decade of the 21st century, many will no doubt point to the formative impact of file-sharing and peer-to-peer exchange of music on the internet. Napster and other peer-to-peer services “schooled” users in the social practice of downloading, uploading, and sharing digital content, which, in turn, has contributed to increased demand for broadband, greater processing power and mobile media devices. Further, the Napsterization effect extends to non-media areas such as sharing health information, oversight of politicians, access to government data and online dating via free social networking sites.

Remember this is about digital music consumers, not “dirty rotten illegal downloaders and filesharers”.  The people who crafted the current version of the Digital Economy Bill appear to have thrown away all the input and consultation to do with the consumer side of the music business and concentrated on the “rightsholders”. [I suppose this should have been expected, since that is the precise problem with a lot of modern copyright law, too one-sided to be useful or progressive]. Consumers want the five things stated above. If they don’t get it from the established digital music industry, they will go somewhere else to get it. Which gives independent labels and new entrants the chance they’re waiting for, to drive a bus through the barndoor of opportunity that’s opening up for them. Artists have the opportunity to set up their own label and distribution capability, like the Grateful Dead did nearly fifty years ago. There are many who are watching and learning from the Dead, from Radiohead, from Nine Inch Nails, and so on.

4. Content is not king: simplicity and convenience rule

There was a very interesting article published by Andrew Savikas in the middle of last year, talking about content being a service business. In it he quotes from Trent Reznor of Nine Inch Nails:

[W]hat you NEED to do is this – give your music away as high-quality DRM-free MP3s. Collect people’s email info in exchange (which means having the infrastructure to do so) and start building your database of potential customers. Then, offer a variety of premium packages for sale and make them limited editions / scarce goods. Base the price and amount available on what you think you can sell. Make the packages special – make them by hand, sign them, make them unique, make them something YOU would want to have as a fan. Make a premium download available that includes high-resolution versions (for sale at a reasonable price) and include the download as something immediately available with any physical purchase. Sell T-shirts. Sell buttons, posters… whatever. [emphasis added]

Reading through what Reznor had to say in his original post, I found another extract telling in the extreme:

The database you are amassing should not be abused, but used to inform people that are interested in what you do when you have something going on – like a few shows, or a tour, or a new record, or a webcast, etc.
Have your MySpace page, but get a site outside MySpace – it’s dying and reads as cheap / generic. Remove all Flash from your website. Remove all stupid intros and load-times. MAKE IT SIMPLE TO NAVIGATE AND EASY TO FIND AND HEAR MUSIC (but don’t autoplay). Constantly update your site with content – pictures, blogs, whatever. Give people a reason to return to your site all the time. Put up a bulletin board and start a community. Engage your fans (with caution!) Make cheap videos. Film yourself talking. Play shows. Make interesting things. Get a Twitter account. Be interesting. Be real. Submit your music to blogs that may be interested. NEVER CHASE TRENDS. Utilize the multitude of tools available to you for very little cost of any – Flickr / YouTube / Vimeo / SoundCloud / Twitter etc.

The key phrase for me is this one: make it simple to navigate and easy to find and hear music.

When I read the Savikas article, one of the points I understood was this: the success of iTunes lay in the quality of the service they offered, the simplicity and convenience, rather than in premium content. In fact, the pricing of digital goods tends to reflect this: prices for songs, albums, films and books tend to be very similar for a given class of digital good, suggesting that the content behaves like a commodity, that the perceived value is in service simplicity. When you take into account recent developments such as Ofcom’s stance on Sky’s exclusive premium content, there is every possibility that there’s going to be downward pressure on the prices of premium digital content.

So let me summarise. I don’t know much about  how the world is changing as a result of the internet and the web, as a result of digitisation. What I do know is this: these changes are putting real structural pressure on a number of industries, particularly on the “publishing” industries of music, film, journalism and books. Every participant in the supply chains of those industries is feeling that pressure.

During such a time of flux, the customer becomes even more of a scarcity, even more of an asset. Any action you take which alienates customers, you take at your peril.

In this context, the actions of the music industry at this time, particularly in the context of the Digital Economy Bill, seem foolhardy in the extreme. Foolhardy enough for shareholders and activists to look at the consequences very carefully, and to take legal action against the decision makers.

You know something? If I was one of those people who’d lobbied to put all the garbage in the Digital Economy Bill, I would start praying. Now.

And I would write to my MP and ask that the Bill be withdrawn. Even if I worked for the BPI. Particularly if I worked for the BPI.

Sometimes it pays to Be Careful What You Wish For.

The Digital Economy Bill: Fred Figglehorn, won’t you please come home?

Do you know who Fred Figglehorn is?

He’s is a fictional 6-year old with his own TV channel. Not any old TV channel. It’s modern, it’s 21st century. And yes, it’s on YouTube. I quote from Wikipedia:

Fred Figglehorn is a fictional character created and portrayed by American actor Lucas Cruikshank (born August 29, 1993). Cruikshank, a teenager from Columbus, Nebraska, created the character for his channel on the video-sharing website YouTube.[1] The videos are centered around Fred Figglehorn, a fictional 6-year-old who has a dysfunctional home life and “anger management issues”.[2]

Cruikshank introduced the Fred Figglehorn character in videos on the JKL Productions channel he started on YouTube with his cousins, Jon and Katie Smet. He set up the Fred channel in October 2005. By April 2009, the channel had over 1,000,000 subscribers, making it the first YouTube channel to hit one million subscribers and the most subscribed channel at the time.

Over a million subscribers. And creator Lucas Cruikshank is 16 years old. He calls his channel “programming for kids by kids”. By kids. Let’s remember that.

Now fast forward to IMDb, let’s find out a little more about this Lucas Cruikshank. Here’s an excerpt:

Lucas Cruikshank is a teenage director and actor who got his start by making videos with his cousins John and Katie, and posting them on YouTube. Together, the trio is known as JKL Productions. Recently, Lucas decided to make videos by himself and came up with the character Fred, who is an annoying 6-year-old with an uncaring mother and is most noted for his sped-up voice. Lucas said that he created the first Fred video to poke fun at video bloggers who talk about every single thing that they’re doing in the video. The first video received tons of positive feedback, and Lucas continued to post videos in the Fred series, which he edits, directs, and acts in by himself. When not making videos, Lucas auditions for movie and TV roles, and also pitches ideas to television channels. He is also a dancer and takes jazz, tap, and hip-hop classes. Lucas resides in Columbus, Nebraska, with his two brothers and five sisters. He is the middle child.

  • Uses a Zip It instant messaging and e-mailing device in the Fred videos as part of a deal with its manufacturers.
  • His Fred videos receive between 1 and 9 million views per video.
  • JKL Productions, the video-making trio of his two cousins and him, made a grand total of US$14,000 from their videos and merchandising during one year.
  • Is very appreciative of his fans.

IMDb Mini Biography By: Secretherapy

…receive between 1 and 9 million views per video. Let’s remember that.

Is very appreciative of his fans. Let’s remember that.

Now let’s move on to another Lucas. George Lucas. Here’s an abstract from his wikipedia entry:

Lucas was born in Modesto, California, the son of Dorothy Lucas (née Bomberger) and George Lucas Sr. (1913–1991), who owned a stationery store.[2]

Lucas’ experiences growing up in the sleepy Central Valley town of Modesto and his early passion for cars and motor racing would eventually serve as inspiration for his Oscar-nominated low-budget phenomenon, American Graffiti. Long before Lucas became obsessed with film making, he wanted to be a race-car driver, and he spent most of his high school years racing on the underground circuit at fairgrounds and hanging out at garages. However, a near-fatal accident in his souped-up Autobianchi Bianchina on June 12, 1962, just days before his high school graduation, quickly changed his mind. Instead of racing, he attended community college and later got accepted into a junior college to study anthropology. While taking liberal arts courses, he developed a passion for cinematography and camera tricks.

During this time, an experimental filmmaker named Bruce Baillie tacked up a bedsheet in his backyard in 1960 to screen the work of underground, avant-garde 16 mm filmmakers like Jordan Belson, Stan Brakhage and Bruce Conner. For the next few years, Baillie’s series, dubbed Canyon Cinema, toured local coffeehouses. These events became a magnet for the teenage Lucas and his boyhood friend John Plummer. The 19-year-olds began slipping away to San Francisco to hang out in jazz clubs and find news of Canyon Cinema screenings in flyers at the City Lights bookstore. Already a promising photographer, Lucas became infatuated with these abstract films.

[Incidentally, I just want to say thank you, publicly, to Jimmy Wales and all the people at Wikipedia. It is such a privilege to be able to annotate my posts using Wikipedia. Thank you.]

Souped-up cars. Bedsheets in backyards. You see a trend here? Fast forward to 2006. On August 2, 2006, the following post was made on Star Wars Blogs:

We would like the fan film community to know that this was not done at our request. Let’s remember that.

Fast forward to a week ago. Take a look at this story from techdirt:

Official channel blocked due to a copyright infringement issue. Let’s remember that.

Many of you will be aware of the Lenz v Universal case, where Universal Music Publishing Group asked Youtube to remove a 29-second clip of a child bopping up and down to a Prince song:

Mere allegations. Let’s remember that. These are the sort of abuses that happen when the law is so badly crafted that “mere allegations” have this kind of effect. Note that the music company involved in the 29-second fiasco is none other than Universal, whose Group CEO Lucian Grainge is a “known associate” of the Dark Lord.

Where is all this leading?


  1. The kids of today are adept at making stuff out of digital raw material. People like me are of an older generation, less adept at these things. We know this. We were adept at making stuff with physical tools working on physical things.
  2. When it comes to digital culture, the barriers to entry have been sharply reduced, so much so that 16 year olds can make home videos regularly enough to run a channel that has a million subscribers and gets nine million views. The world of “content creation” is learning to adapt to this, with people like George Lucas leading the way.
  3. What George Lucas and these kids have in common is also simple: they know how to treat their fans.
  4. Many of the organisations that are being made irrelevant by the digital youth of today, in contrast, don’t know how to treat their fans. Instead, they go to court to attack 29 second videos of very active children.
  5. Attempts to mutate the laws of yesteryear to cope with the challenges of tomorrow are riddled with failure.

Human beings like to make things. They also like to unmake things, to take things apart. They like to get under the hood of things, dismantle stuff, unscrew stuff, put them back together in ways that no one had dreamed of before. Recently I had the opportunity to ask Alex Deschamps-Sonsino and team at to come and work with the leadership group at BT Innovate and Design. A splendid time was guaranteed for all. And a splendid time was had by all. Smiles everywhere, as people built stuff and unbuilt stuff. Serious play.

This maker instinct is in all of us, and has been captured brilliantly by Cory Doctorow in Makers and by Larry Lessig in Remix, something I’ve written about before.

As the maker instinct begins to manifest itself in the digital generation, strange things are beginning to happen. Things I cannot conceive of, but things I hear and see. Things that fill me with glee and with sadness, things that teach me, things that I can learn from.

Things like Line Rider. Things like stop-motion video of Monkeys and Engineers, which I wrote about here. Things like this Hips Don’t Lie Parody. Things like the Team Hoyt “My Redeemer Lives” video.

Stray off the beaten track a bit. Watch RIP: A Remix Manifesto.

This is an extract from a blog called Copyright in the Digital Age, in a post headlined Brazilian Dance Party: In it, a journalist called Barry Hertz is quoted as saying:

“After marvelling at the artistry occurring within the shantytowns, the director stupefyingly proposes that the future of art and commerce lies not with the over-branded environs of New York or L.A., but within the copyright-free slums of Rio, oblivious to the fact that he is standing hip-deep in abject poverty.”

The copyright-free slums. Incidentally, thanks to a comment by Martin Budden, I’ve had the opportunity to read James Boyle’s The Public Domain, and then order the hardback. Excellent book. Well worth a read.

Copyright is in a mess. Takedown notices that shouldn’t have been sent. takedown notices that were claimed not to be takedown notices, takedown notices that hadn’t been asked for. Official channels shut down, official material no longer available.

  • Folks, there is a new generation out there. They do things we couldn’t. They make magic in ways we don’t begin to understand.
  • We cannot allow them to be criminalised via the Digital Economy Bill.
  • We cannot constrain their maker culture just because we don’t understand them.
  • We cannot allow others to constrain their maker cultures just because they feel threatened.

There’s enough bad law out there already, particularly in this space. Even as I write, I think it’s still illegal to copy songs from a CD purchased by me on to an iPod purchased by me via iTunes on a computer purchased by me.

Every time the maker culture meets the digital generation, wondrous things happen.

We have to make sure they continue to happen. So contact your MP, push back against this Bill, make sure your voice is heard.

The Digital Economy Bill: Thinking about Banana Ice Cream

My thanks to Victoria Bernal for Larry’s Ice Cream,, itself a riff on Picasso’s Guernica.

Imagine there was a little tinpot dictatorship somewhere. Let’s call it a Banana Ice-Cream Republic. You know the kind I mean. Colourful stamps, country and capital going through ritual name-change on a regular basis, no rule of law, no civil liberties, a bunch of officials wandering around with grand titles and grander uniforms, with “President-For-Life” just the table stakes, and Grand Panjandrums 2-a-penny (not to mention Chief Scientists!).

Imagine you lived there.

Imagine you lived in a town where a lot of people ate banana ice-cream. Imagine that this ice-cream was available a number of ways: you could go to the shop and buy the ice-cream; you could go to a restaurant and order some; you could send off for ice-cream via phone or mail or suchlike; you could even make some yourself, or, if you’re very lucky, have others make the ice cream for you.

Imagine some people stood in front of the shops and restaurants asking you to try their wares, and they gave the ice cream away for free. So that you would be tempted to come in and spend a lot more money on a lot more things.

Imagine you could also buy ice cream from vans that passed by your house. [Have you ever bought ice cream from a passing van? I have. Many times. And I hope to do so again, many times.]

Now imagine that some people held up the vans and stole the ice cream and gave it away for free to everyone. This would be wrong, wouldn’t it? Of course. No one would argue that stealing is right. Even in a country without rule of law, this is usually understood.

So let’s imagine a little more. Imagine that some of the ice cream distributors got upset about all this stealing, and started trying to convince the local council that Something Has to Be Done About It. [An important point to remember; the distributors were the ones getting upset, because they were the ones making the money, not the guys who created the delicacies]. Imagine that some of the ice cream distributor big cheeses got together with some of the local council big cheeses, and they went for a boat ride on the town lake. And imagine that when they all came back, the councillor announced, completely coincidentally, that he was going to introduce a law to Stop This Stealing.

Imagine he came up with such a law. Imagine a law that went like this:

1. All people living in houses in any area where ice cream stealing was even suspected would be banned from using the roads. Any roads. No proof was needed.

2. All people living in houses in any area capable of storing stolen ice cream would also be banned from using the roads. Any roads. No proof needed. The house itself would be cordoned off.

3. If people were suspected of having bought the ice cream and then having used it to make an ice cream based dessert, this would also qualify for a ban on road use. No proof needed.

4. The people looking after the roads had to make sure that anyone in any house suspected of stealing ice cream, or harbouring stolen ice cream, were prevented from using the roads. Again, no proof needed. Failure to do this would mean the road-looker-afterers would also be fined.

5. If asked, the people looking after the roads would also have to report on the movements of the people who lived in the houses. Which roads they used. When. To do what.

6. Anyone providing maps or similar tools that could be used to find houses that may be suspected of harbouring people who steal ice cream, or of storing stolen ice cream,  would also be prevented from making those maps available to anyone. Again without proof.

7. Axe murderers were to be allowed to use the roads. Child molesters were also to be allowed to use the roads. The only people banned were those suspected of stealing ice cream or handling stolen ice cream.

8. The councillors had the president-for-life power to amend and extend this Ice Cream Law at will.

If it happened where you live, that would be horrible, wouldn’t it? People use roads for so much more than banana ice cream. There are so many ways to get banana ice cream. Some people even give it away for free, they make their money selling the spoons and cups and napkins. Some banana ice cream makers have lost faith with the distributors; so they now make and sell the ice cream themselves, telling passers-by to pay whatever they like, only if they like it. And people pay.

People use the roads to learn and to teach. People use the roads to take children to school. People use the roads to take the elderly to hospital. People use the roads to go shopping. The town is an open town, many people use the roads just to get from A to B. People use the roads to keep the town clean, to make sure that everyone gets what they need. Some people even use the roads to walk to council meetings.

In fact people use the roads for many many things besides banana ice cream.

Which is why the change in the law made so many of the townspeople very angry. They didn’t believe that banana ice cream stealing was going on at the levels that are claimed. They didn’t believe that the banana ice cream industry was losing as much revenue to stealing as the industry claimed. They didn’t believe that ice cream vans had much of a future, they thought that there are better ways to make and deliver ice cream. Some of them didn’t think that ice cream distribution was all that important anyway.

Aren’t you glad you don’t live in a Banana Ice Cream Republic?

Was he free? Was he happy? The question is absurd:
Had anything been wrong, we should certainly have heard.

WH Auden, The Unknown Citizen.

The Digital Economy Bill: The Power of Not Being Elected

Gordon Brown, the UK PM, will be calling for a general election very soon; he may even become the first to make that call in the Commons.

This is happening at a time when trust in the parliamentary process is low, perhaps even at an all-time low; my perspective is clouded by reports about expenses and second homes and cash-for-questions, cash-for-honours, cash-for-lobbying, cash-to-protect-oil, cash-for-something-or-the-other.

Against this backdrop, it would seem prudent to surmise that one of the issues this election is likely to be fought on is that of trust.

Trust. I’ve always seen trust in the way I see beards. It takes a long time to grow a decent beard. And minutes to lose the beard. So it is with trust.

Which is why I find the behaviour of our elected officials bizarre in the extreme when it comes to the treatment and passage of the Digital Economy Bill. If you want to know more, read Cory Doctorow here.

Did I say “elected officials”?

My mistake. I shouldn’t have said “elected officials”. Because when it comes down to it, many of the players in the Digital Economy Bill are anything but elected officials. Let’s take a look at who’s pushing the Bill and some of the key people involved in the debate.

Lord Mandelson. Unelected. Appointed. Powerful friend of  the Powerful. Friends include Lucian Grainge (Universal) and David Geffen (Asylum, Warner, Dreamworks SKG). Lord Birt. Unelected. Appointed. On the Supervisory Board of EMI. Lord Triesman. Unelected. Appointed. Chairman of the FA.  Lord Clement Jones. Unelected. Appointed. On the board of a company that makes its money on intellectual property law, and publicly showing himself to be of the opinion that civil breaches are similar to criminal offences.

A bunch of unelected officials. With clear ties to vested interests in music, film and intellectual property rights.

I’m used to bias. We all have bias. I think it was Einstein who said that common sense is the collection of prejudices we build by the time we’re eighteen. We all have masks and anchors that frame what we think and say.

But this is not about bias alone. Because, besides being unelected officials, we need to look at the way the Bill is being bums-rushed through Parliament. With no time for a proper debate. With a complete disregard for all the debate that has taken place earlier, proper or not.

Major amendments being put through in the days before Easter, in the days before the calling of a general election. Major amendments that would give presidential powers to ministers with scant regard for law or for human rights. Major amendments that would not stand the close scrutiny and heated debate that would normally take place. Major amendments being relegated to the horse-trading of wash-up, at a time when many of our elected officials are too busy thinking of a precious break away from it all, at a time when many of our elected officials are preparing to fight to be re-elected.

So we have unelected officials. With clear and present bias. Driving a process that is as far removed from trust as it is from democracy. Hoping people won’t notice.

People are noticing. And people will notice. There are many people who will make sure that people will notice.

The Digital Economy Bill now represents a wonderful opportunity for would-be next-Parliament MPs. Show us why we should trust you. Show us that you will stand in the gap and uphold democratic rights and due process. And think before you alienate a good slice of your electorate.

I guess dinosaurs have to be allowed their ritual dances as they exit the evolutionary stage. And this Bill, flawed as it is, may still become law. Because of clever timing, apathy. And the Power Of Not Being Elected.

But there will be consequences. You cannot tax salt.