Peter Mandelson Defends His Sudden Conversion To Kicking People Off The Internet

from the let's-take-a-look... dept

You may recall a few weeks back that stories in the UK noted that (non-elected) UK Business Secretary Peter Mandelson had a sudden conversion to caring about copyright issues after dining with David Geffen while on vacation. And, despite months of careful study that went into the Digital Britain report, where it was declared that a policy of kicking people off the internet was not on the table, Mandelson suddenly demanded that his department change that plan. And... just like that, the "three strikes" rules are back on the table.

After being widely ridiculed for his suddenly interest in this issue, it looks like Mandelson has decided to defend himself with a guest column in the Times Online, where he runs through the arguments in favor of his position -- all of which read like someone who's been fed lines by some lobbyists -- and then claims that he's open to hearing other ideas and that he understands why people are upset. Of course, if that's the case, why did he propose such a preposterous idea right after the Digital Britain report had rejected it? Either way, let's go through some of his thinking:

First, taking something for nothing, without permission, and with no compensation for the person who created and owns it, is wrong. Simple as that.

Right. Well, other than fair use. Or, what if it's for promotional purposes? And, how do you define "owns it" in that sentence? After all, if I bought a CD, don't I own it? Or maybe not. Wait... this isn't so "simple" after all, is it, Lord Mandleson? Perhaps that's why so many people have spent so many years digging through the problems of copyright law, and recognize how problematic it is when you try to compare it to real property, such as by claiming someone "owns it" even after they've "sold it." So, no, while it may look simple at first, it's not that simple. And that's rather important.

I was shocked to hear that as much as half of all internet traffic in the UK is for the carriage of unlawful content.

As you should be, because those numbers are bogus and supplied by the industry. But, why let that stop you.

If technical solutions can discourage piracy, then as a Government we are obliged to consider them.

So here's a question: which is more important: discouraging "piracy," or having a thriving and robust creative industry? Because that's pretty important. I would assume that the latter is a lot more important, and a lot of what you seem to be saying suggests that if the industry stamped out unauthorized file sharing, people would magically go back to spending their money on that same industry. Yet, there's no proof to support this at all. The industry has been all about the stick, and never seems to put out a carrot. Go ahead and get your three strikes plan, but don't be surprised when the creative industries still fail, because they've pissed off so many people who choose not to do business with them.

Second, our creative businesses drive much of our economy.

Indeed. And to my last point, then, the goal should be on doing things to encourage "creative businesses" to update their business models, rather than relying on false models of artificial scarcity. You do realize that a UK-based music organization (PRS) recently released a report noting that the music industry in the UK is actually growing? Right? These are the sort of facts the Secretary of Business knows, right? And if the industry is growing, despite complaining about file sharing, isn't it possible that the real issue is just focusing on business model improvement, rather than the hand of gov't stepping in and slapping people around?

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.

Indeed. Good to know they're doing well by adapting new business models. Why interfere with that process?

These businesses will get no favours from government

Well... you mean other than a massive subsidy in the form of a gov't granted monopoly that lasts longer than all of our lifetimes? That, at least, must count as a little favor, doesn't it?

but we should create a regulatory environment where they can operate without having to deal with illegal competition.

"Illegal" competition is a funny thing. See, since you're the gov't and you get to define what is and what is not illegal, it leaves you open to a bit of regulatory capture (the sort that gets tongues wagging about fancy dinners with industry execs in far-away vacation retreats) whereby anything that a legacy industry doesn't like and doesn't want to deal with is suddenly called "illegal."

And yet, despite this "illegal" competition, we see many creative ventures and creative artists learning to embrace this "illegal competition" in the form of file sharing to create much more effective business models. We see artists and new up-and-coming operations that encourage people to file share, and put in place other reasons to buy, such that file sharing isn't "illegal competition" at all. It's free promotion from your biggest fans.

Crucially, if these changes can give the creative businesses and their partners the space to develop new business models that support more new artists, acts and films, then surely we are duty bound to consider them.

I recognize that you are the Business Secretary, but in the history of business, it is not the government "giving room" to legacy industries that leads to them developing new business models. It is the force of true competition, that requires them to be innovative. Welcome to the world of "creative destruction." Holding off the creative destruction does not encourage the new business models. The whole reason the industry is wining and dining you is because they want to hang onto whatever scraps of their dying business model for as long as they can.

Let me emphasise that nothing has been predetermined. And I understand why internet service providers (ISPs), consumer groups and digital rights activists are disappointed that we have decided to consider a range of tougher and faster measures. But let me try, if I can, to reassure them.

Then why were there so many reports that you suddenly (after showing no interest in the subject previously) returned from vacation hellbent on adding "three strikes" to the plan?

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. It would only follow a well-established series of warnings and clear evidence that they were taking action to defend their own rights.

Ah, but you seem to have ignored the other part of the equation: users' rights. The EU has declared that cutting people off from the internet is a civil rights violation. Doing so without true due process is a huge violation of their rights. Why would you support that? If the "clear evidence" is only that they were defending their rights, rather than that someone had violated the law, isn't that a pretty massive due process problem?

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. 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.

Wait. Shouldn't the bigger concern be why they have to go through such a process in the first place? Especially when the industry is growing and adapting new business models (see above) and have no need for the gov't to put in place such draconian measures? Why are you already jumping to a situation where some people need to be "protected" rather than removing the threat of erroneous shut-offs entirely?

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.

Yes, the lawsuit strategy failed. But three strikes is a continuation of those same failed policies. The industry has had those ten years to develop and support innovative new business models -- but the major players have failed, time and time again. They sued Napster. They sued Kazaa. They sued The Pirate Bay. They sued Grooveshark. They sued MP3tunes. They sued iMeem. They sued MP3.com. They sued Launchcast. They sued Hi5. They sued VideoEgg. They sued Seeqpod. They sued Favtape. The list goes on and on and on and on.

They've had these ten years to develop new business models. And they failed. Instead, the new business models have been developed outside of the legacy industry -- and they're working. Let them be. Don't give this tool to the legacy players, who failed to innovate. Let them go out of business, and let a new, and much more creative "creative business" industry take over.

You're being played for as a fool by a legacy industry that wants to squeeze every bit of money it can from a dying business model. Putting up three strikes isn't giving them space to develop a new business model. It gives them time to squeeze more out of a corpse.

Ultimately the answer to combating digital piracy lies in the hands of those who own content and those who control access to the internet.

Ah, see there's you're problem. You keep going back and forth between "saving the creative industries" and "combating digital piracy" as if they were one and the same. They're not. There are many successful creative businesses now embracing digital piracy to their advantage by being smart. You should talk to some of them. And, note the party you left out of the equation: the users. The folks who consume and interact and share and promote and buy. If you want to know what the answer is for a thriving creative industry, you should be talking to them -- not the folks still trying to sell plastic discs.

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.

Then why are you favoring one set of players and one business model? That's not the market at work. It's the opposite.

Mandelson's entire argument seems to be built off of a very faulty premise: stop file sharing and the industry succeeds. That's wrong on a variety of points. First, as much as you want to, you won't stop file sharing. You'll just drive people further underground, and that helps no one. Second, the creative industry is thriving today, even with file sharing, and many who are doing great are doing so by embracing it, and using it to their own advantage. Getting rid of file sharing is not the same thing as "succeeding" in the industry. Third, even if you did magically make file sharing disappear, that's got nothing to do with actually giving people a reason to buy. Pissing people off by cutting them off the internet actually gives them fewer reasons to buy.

Filed Under: peter mandelson, three strikes, uk

UK Gov't Now Supporting 3 Strikes: Lobbyists Win Again

from the the-will-of-the-people? dept

Ah, those pesky lobbyists. It seems that the UK gov't really has a way with doing a detailed report on what should be done on the music industry, which gets some of the important points right... and then it all gets tossed out the window once the recording industry lobbyists jump into things. Remember a few years back when the gov't commissioned the Gowers Report, which said copyright terms should not be extended (and Gowers himself later admitted that all of the evidence actually suggests it should be shortened)? Yup, well, then the lobbyists took over, and suddenly the government's Cultural Secretary Andy Burnham is singing the praises of copyright extension. These days, it looks like extension is almost certainly going to happen in the UK despite all the evidence as to why it shouldn't.

Looks like the same thing is happening again. Earlier this year, the UK gov't "Digital Britain" report clearly said that a three strikes regime, whereby ISPs would be responsible for kicking file sharers offline, didn't make sense. While there were other problems with the report, at least it knew better than to drag ISPs into things as copyright cops.

But... then the lobbyists took over. Entertainment industry lobbyists have been working overtime in the UK (the stories we've been hearing are pretty nuts...), and a few weeks ago the British press was noting that UK Business Secretary Peter Mandelson had vacationed with David Geffen (who has ties to both the recording and the movie industries) and suddenly showed an immense interest that hadn't been there before, on changing Digital Britain to make the rules tougher.

So, surprise, surprise... suddenly ISPs are finding out that three strikes is back on the table even after being promised it wouldn't be. The original report had given regulators until 2012 to consider what technical measures ISPs should take -- if any. But Mandelson's department has suddenly declared that timeframe is "too long." The minister for Digital Britain, Stephen Timms, practically comes out and admits that they were lobbied hard:

"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."

So, expect three strikes to show up in the UK. Of course, it will be a dreadful mistake. I still can't understand why the recording industry thinks this is a good idea. You may kick people off the internet, but does anyone honestly think that will actually get people to buy again? It seems like a strategy designed to piss more people off. And when has that ever been good for business?

Filed Under: andy burnham, copyright, digital britain, peter mandelson, stephen timms, three strikes, uk

Hollywood Says Due Process Is Too Damn Slow

from the yeah,-that'll-work dept

Apparently, a New Zealand anti-copyright group controlled by the Hollywood movie studios is upset that a new three strikes proposal includes the ability to have a tribunal review a case from a user who feels wrongly accused. The Federation Against Copyright Theft (FACT) is worried that everyone accused of infringing will file for such a review, and it will clog up the system. Yes, due process is apparently too messy for the Hollywood studios. It would prefer a system where arbiters are able to process review requests in bulk. Because nothing says a fair and full hearing of your rights like a guy rushing to get through a batch of such complaints in a single process... I'm amazed that the studios haven't picked up on the French plan of giving judges only five minutes to review any such appeal.

Filed Under: copyright, due process, new zealand, three strikes
Companies: fact, mpaa

UK ISP That Used To Cut Off Users On Accusation Now Wants Court Order

from the see-what-publicity-can-do dept

It's amazing what a little publicity can do. Often when we write about things here, people who disagree with us post comments along the lines of "if you don't like it, stop talking about it and change it." They say this as if getting some publicity on a bad situation doesn't help change it. A few weeks ago, we wrote about Karoo, an ISP in the UK that wasn't just taking claims of unauthorized file sharing from the entertainment industry against its customers at face value, but was cutting them off on the very first accusation, with no real recourse. Except, after all the publicity from the original BBC report and others discussing it, Karoo quickly caved in, and said it would switch to a three strikes policy. Now, a few weeks later, the company is admitting that it will only disconnect someone over file sharing if it gets a court order. So in the period of just a few weeks, a little publicity turned a bad situation into a much better one.

Filed Under: publicity, sunlight, three strikes, uk
Companies: karoo

Only ISP In Town Pulling Plug On Suspected File Sharers With No Recourse [Update]

from the guilt-by-accusation dept

With all the talk about various "three strikes" plans to kick accused (but not convicted) file sharers off the internet, it appears that one ISP, called Kaloo, in the UK has taken this to an extreme: it's kicking people off on the first accusation of infringement, with no warning, and the only way to get reconnected is to sign a form admitting guilt and promising not to do it again. Even worse? It's the only ISP in town, so people who get kicked off are basically without an internet connection. What's really odd is that the ISP doesn't seem to recognize how a complete lack of due process is a problem, calling the program "reasonable" and suggesting it "protects people from illegal activity." No, actually, it doesn't. It cuts people off from what's increasingly a vital communications system without any real proof or due process. Doesn't that seem like a problem? Update: With all the fuss and publicity from the BBC article the ISP seems to have agreed to change its policy to a "three strikes" one. That's still not great, but better than the one strike plan.

Filed Under: copyright, hull, isp, one strike, three strikes, uk
Companies: karoo

Will France's Three Strikes Law Also Allow Gov't Email Surveillance?

from the that-doesn't-seem-good dept

With the effort underway to have Sarkozy's new "three strikes" law approved in France, much of the focus has been on the slightly ridiculous five minute rule it gives to judges reviewing charges of copyright infringement online. An anonymous reader points us to a much more worrisome issue: that the law appears to sneak in provisions that allow for email surveillance by the government. The Senator pushing the law seems to see no problem at all with this, suggesting that it's fine to read through the emails of anyone "stealing intellectual property." Privacy rights apparently mean little to some in France.

Filed Under: email, france, surveillance, three strikes

New French Culture Minister: Wish I Was Pirated More, Using Two ISPs To Avoid Getting Cut Off

from the um,-wow dept

Didn't expect this one. With France pushing forward yet again with a three strikes law, Laurent GUERBY points us to the news that France's new culture minister, Fredic Mitterand has said that he wished he was downloaded more often (translated by Google from French -- Updated to fix poor original translation -- thanks Laurent!) and that he got two internet connections, just in case he got cut off by a three strikes law. He also admits that his son downloads unauthorized content often. That's probably not what the entertainment industry wanted to hear.

Filed Under: file sharing, france, fredic mitterand, three strikes

New Zealand: New Copyright Law Still Involves Kicking People Off The Internet... But With A Bit More Oversight

from the for-the-industry,-not-the-people dept

Earlier this year, there was a lot of attention paid to proposed changes to copyright law in New Zealand. After originally being struck from a proposal, some politicians simply put back in a "three strikes" proposal and then literally yelled at those who were upset by this. This kicked off a lot of controversy, with the government standing by the proposal for a long time -- even in the face of musicians who stood up to against this bill that was supposedly there to help them! Eventually, with so much attention, the government agreed to dump the plan temporarily. There was a report that it would actually revisit all copyright law from scratch, but that was denied quickly.

Either way, it should probably come as little to no surprise that the proposals now being put forth really aren't all that different than what was there before. After all, the industry needs to have its laws. The people... not so much. The major difference is that it won't be ISPs just kicking people off. Instead, it will use a gov't Copyright Tribunal to act as a mediator to review accusations of file sharing and deciding on what (if any) punishment should be handed out, including the potential to cut people off. This is certainly an improvement, but it's still about the industry fighting the wrong battle. Rather than providing more value and a better business model, they're so obsessed with stamping out file sharing that they're totally missing the big picture. What a shame that politicians are simply going along with them.

Filed Under: copyright, new zealand, three strikes

New French Three Strikes Law: Judges Will Get Five Minutes To Rule

from the speed-convicting dept

You've heard of speed dating, right? The system whereby single people meet other singles of the appropriate sex for a grand total of five minutes before moving on to someone else? It appears that Nicolas' Sarkozy's path to getting a "three strikes and you're off the internet" law passed in France involves something similar. As you may recall, Sarkozy's original law to force ISPs to kick file sharers off the internet for three accusations (not convictions) of copyright infringement was gutted as unconstitutional. The big concern was that a judge needed to be included in the process. But, Sarkozy -- who is married to a pop singer (bias?) -- has insisted this is a matter that needs to be addressed.

Michael Scott alerts us to the news that a new proposal has been put forth in France, and to deal with the whole "judge must decide" issue, it creates a special "fast track" for such cases, whereby a judge would be given a grand total of five minutes to decide such cases. Yes, you see, free society (which Sarkozy insists he's defending) apparently doesn't involve giving a judge ample time to consider whether or not it makes sense to completely cut someone off from the internet because they may have wanted to listen to a certain song without properly clearing the rights. Oh, did we mention that Sarkozy himself was recently caught violating copyrights? Would he have let a judge decide that case in just five minutes?

Filed Under: five minutes, france, three strikes

Three Strikes Rejected In Spain

from the another-one-down dept

It seems like the recording industry's grand plan to get ISPs to be their copyright police isn't getting very far. Consumer and legal backlash around the world seems to have stopped it cold. The latest is in Spain, where the entire concept of a three strikes regime has been taken off the table. Instead, the plan in Spain is to go after file sharing sites and services -- as we've seen them do a lot lately. The only problem? Spanish courts have found both that personal, non-commercial file sharing is legal and that sites that are merely pointing to content are not liable for whether or not the content is infringing.

Filed Under: spain, three strikes