It appears the UK has got itself a shiny new Digital Economy Bill - thanks to a three line whip vote which saw a half empty parliament voting on major legislation which affects both our industry and all the individual and consumers which interact with it (I’d wager this is over 90% of the population).

I have to admit it: the amount of chatter, information and debate online about the Digital Economy Bill, particularly in the last 48 hours through my Twitter, has been overwhelming.  I struggle to work through macro issues through the micro lens of now, and the news has been told through the multiple lenses of those I follow online through their blogs, Twitter feeds and status updates.

What’s it all about?  This is my attempt to unravel it, from the perspective of someone who works in the digital content and technology space, and also for copyright holders.

Squaring up for a fight

In the red corner: we have ‘the man’ – major copyright owners like the BPI who have attempted to push through legislation that would see those who are suspected of breaking copyright laws through illegal downloads facing punitive measures like the ‘throttling’ (slow-down) or entire disconnection of their network in a ‘trial without jury’ approach that places peer-to-peer ‘freeloaders’ in a distinctly separate category to any other copyright infringer who faces a formal legal process.

Cory Doctorow from BoingBoing exposed a leaked memo from chief antagonists BPI showing that ISPs are already starting to censor their networks and MPs are resigned to accepting defeat.  Dirty deeds indeed.

In the blue corner: internet evangelists, web pioneers, creative commoners, citizen journalists, free thinkers and creators (the usual suspects). They are co-operatively led, use free internet tools as a mechanic for direction action and know how to shout out loud online. Trust me: know one wants to get on the wrong side of a pack of angry bloggers.

Debilitated, created by @stef, give a great overview of the flood of anti-Bill Twitter chatter online for the live streaming of the third reading, starkly contrasted with a near empty Parliament (only 40 turned up, and 10 stuck it out for the full debate).

Unintended consequences: arguments against the Digital Economy Bill

Why are they so angry?  Legislation that has a major impact on growing a sustainable digital economy has been passed with the least amount of scrutiny and time for debate, trying to push unpopular legislation in the ‘wash up’ before the election.   Because everything has been so rushed (or it appears that way) there’s an awful lot of ‘misinformation’ out there but some of the consequences of enforcing the Bill may (I emphasise may) be, according to The Next Web include:

• The ability for copyright holders to force ISPs to block access to websites they say are hosting illegally copied files.
• Owners of publicly accessible wi-fi hotspots will be liable for piracy committed on their connection.
• Compulsory internet disconnection for persistent internet pirates.
  Isn’t an internet connection close to becoming a basic human right in the UK? This directly contradicts the government Digital Inclusion Task Force, which aims to get more people online to reap the economic benefits of the web.

According to Tom Watson, one of the leading MPs taking an anti-Bill stance, there are ‘unintended consequences‘ for the bill, which could see innocent non-technical people prosecuted for failure to police their own network, and the potential for a rise of filesharing, as seen in recent Sweden legislation, through stronger encryption which has the potential to throttle already over saturated networks.

Power to the People

Overnight, the anti-Bill campaigners actively demonstrated the power of social media, springing up unique creative responses to the debate – from crowd-sourced fundraising for press adverts (how Web -1.0!), over 20,000 letters sent to MPs,  to campaign Tweets at www.whatdebill.org for the thousands who reject the Bill. Mash-ups and open source apps were created  like  @jaggeree’s Did My MP Show Up Or Not? which he “made late at night in a fit of fury”.

Digital, creative solutions made by the people who create, build and design the UK’s digital economy, ironically created from data sources from the government’s open data pledge.  An open letter, signed by thousands of web professionals was quickly delivered to the MPs which voted in favour of the Bill, and heroes were made of those who spoke against it.

Home taping is killing music

So it’s all ‘the people’ versus ‘the man’ like all the best social media love stories?  (echoing the Rage Against The Machine versus Simon Cowell Xmas No 1 I previously wrote about)

Well not quite.

There is a ‘third way’ here, and many voices are unheard in the clamour to quash the Bill.  Featured Artists Coalition chief executive Jeremy Silver said that the digital economy bill is of “tremendous importance”, with some “very valuable” measures. Rights owners welcome the move to take a tougher stance against safeguarding their rights, the ‘crown jewels’ of intangible digital content.

In essence, most non-media conglomerate producers think the potential to cut off our consumers internet is bad – no question.  My 2009 research into the effects of peer-to-peer distribution for independent music entrepreneurs showed a mixed picture with surveys on the effects of downloading hugely variable depending on the period, location and whether the research was conducted on behalf of rights holders or academics.

Ultimately home-taping, or home-videoing, didn’t kill the music or film industries but later on were seen to deliver new audiences and markets for creative works, as the essence of a digital product is you need to see, hear, share and enjoy it before it adds any value to you.  An interesting collaboration (and wicked tune) emerged in the form of genius anti-Bill rapper Dan Bull, getting together with ISP TalkTalk for a new video ‘Home Taping is Killing Music‘.

The devaluation of music (in the same way composer Sousa believed the gramophone ‘devalued’ live music) from file-sharing is an old argument – but actual a resonant one as many of the musicians I interviewed did indeed believe that faceless file-sharing had a net impact, perhaps not directly on their own work, but on the market where music was seen to be be a free, an on tap resource, echoing Gerd Leonard’s ‘free like water’ concept that has become de facto, not theory.

The fine detail of how the legal changes in the Bill will play out – and how they’ll be enforced by both major copyright holders and ISPs  remains to be seen.  ISP TalkTalk is already taking an anti-Bill stance by refusing to give over customer details unless instructed by a court.  If other ISPs follow suit it will prove to be costly for rights-holders to enforce this action.

Just as the widely protested Criminal Justice Act of 1994 may not have rigorously enforced the policy of breaking up a gathering of two or more people listening to ‘repetitive beats’, it did give the police the power to shutdown raves and with it destroying and sanitizing an exciting cultural movement.  People still listen to repetitive beats, they still take drugs, but in controlled environments – because unlicensed raves couldn’t be monetized.  Similarly the ‘information needs to be free’ thinking of web evangelists reflects a similar ethos to free-thinking ravers.  It is difficult for an ‘industry’ in a commercial sense to operate in parallel with these ideologies.

Implications for digital content producers

I am neither a ‘new media evangelist’ nor a commercial producer, but actually operate – like many people in the digital sector -  somewhere in between.  I have stood against this bill, primarily on the basis it needed more time to be developed and debated – particularly with view to the prosecution of ‘offenders’. The BPI et al certainly do not reflect either me or my clients’ interests.

The tagline for digital consultant is ’strategies for the digital economy‘.  The development of a sustainable digital strategy is imperative not only to my business, but how I live my life exploring commerce and culture through the availability of affordable content, service and resources.

The ‘free lunch’ of file-sharing has to stop, and my own research showed that even musicians on modest levels of income were finding it hard to sustain a living when the pervasiveness of ‘music should be free, right?’ meant giving up the modest living they had once enjoyed.  People are envious of ‘free living’ people, and musicians are the ultimate fall guys of envy – how dare they have that much fun and get paid for it? In Sweden, Bjorn from Abba lashed out at The Pirate Party, saying file-sharing only gave people the ‘freedom’ to be selfish and mean towards rights creators.

Andrew Orlowski, editor of The Register,  is one of the few to balance discussion about online economies and what he sees as the ulterior motives of Creative Commons lobbyists who seek to act in the interests of Silicon Valley technologists and want to render copyright invalid.  Orlowski wrote a retort to Music ThinkTank speaking out against The Open Rights Group: “This is a dogmatic movement, where any compromise with rights holders risks expulsion from the tribe.  That’s why the answer is always going to be ‘No’.”

As rights owners we need to protect our intellectual property, but equally we need to encourage and stimulate the market: cutting off the internet connection of an individual or household has ominous echoes of the RIAA prosecutions of 2003 when 12-year-old  Brianna Hara, living in social housing in New York, was sued for downloading TV theme tunes and nursery rhymes.  This overnight turned many music fans against the ‘music industry’ (I lose the term losely, the music industry is just a collection of people doing stuff involving music.  There is no ‘man’ at the heart) but on the other hand the prosecutions were thought to have played a crucial role in dampening the tide of bit-torrenting.

We need to educate the nascent digital content market by making paid content ‘better than free‘ – better quality, better user experience and more loyalty show to the artists and labels that nurture talent, a carrot not a stick approach.  ‘Piracy’ has throughout history shown to be a form of education, bringing new people into a market, e.g. in emerging economies where people aren’t yet in a position to pay.  Confused of Calcutta makes some well argued points on the digital economy bill in relation to music:

“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.”

For those of us who participated in the march against Tony Blair’s invasion of Iraq, it’s a chilling reminder that democracy as a form of people power really doesn’t work.  Ultimately, for democracy to fail, and for the minority interests of organisations like the gloating BPI to win, reflects badly on us all as content producers.

I don’t yet fully understand this complex legislation and the impact it will have on content producers and consumers of their works, but I do feel ashamed of the underhand way the views of consumers and the industry have been ridden rough-shod to create  far-reaching legislation that affects pretty much every computer user in the land. It’s a mixed emotion – between creating a stronger legislative environment to protect my industry (both music and digital), against the horrific methods with which that shift in behaviour is to be enforced, that gives me a heavy heart.