Against massive public opposition, Lord Mandelson’s extremely controversial and heavily criticised plan to disconnect internet users who use “peer-to-peer” technology to download and share media content such as games, movies and music has been dropped from the proposals set out in the hotly contested “Digital Economy Bill”. A petition on the Number 10 website asking the Prime Minister to intervene in Lord Mandelson’s plans seems to have worked, with a statement issued on February 23rd stating that “We will not terminate the accounts of infringers – it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal -cases.”
This news will be music to the ears of Human Rights campaigners who have described cutting users off from the internet as a violation of their right to correspondence and freedom of expression. This is, however, only one side of the argument. Debate on these issues will become more prominent as the Digital Economy Bill makes its way through Parliament, and as many in the Entertainment Industries begin to nail their own colours to the mast – earlier this week, Simon Cowell, Paul Greengrass and Terry Pratchett (amongst others) delivered a letter to parliament urging that the Bill be passed.
The Bill began life around the time of the Digital Britain Report, which was made public over the course of 2009. The report set out the government’s vision for a “knowledge economy”, with as much of the country as possible having access to broadband to allow them to participate in the growing global network. One of the other major concerns, however, was how the Govenernment would look to support and protect content created by the music, gaming and film industries, all of who had been severely hit by falling profits and a growth in illegal downloading of copyright-protected material. Something had to be done, and in the light of so-called “three strikes” policies beginning to find favour in the EU, the original suggestions in Digital Britain of dealing with the problem via slowing down access to the web were eventually toughened to include disconnection for persistent offenders.
The Entertainment Industry was thrilled, but many artists felt that it may be a step too far. Many critics of the bill noted that appeals against disconnection would not be straightforward and feared that cutting off users could take place without a Court Order.
We now find ourselves back in similar territory as when the report was first published, with the current strategy being that the government will use various “technical measures” to curb online piracy and only deploying disconnection as a measure of last resort, as well as setting out one feature which the report missed – a right of appeal . Downloaders will rejoice, and the Music Industry may now find itself forced to take action on its own by suing illegal downloaders for copyright infringement itself. The costs of doing so would usually be disproportionate, as the damages which an artist or record label would recover would normally be the amount which they would have charged to licence or sell any particular song or album. The costs in bringing such claims would be high and can quickly make them commercially untenable. Nevertheless, however, the major labels may feel the need to run a few such cases as a deterrent.
Whatever the case, the Government relaxing its position slightly does not mean that the problem of online piracy will go away. The response to it may take a number of different forms, depending upon how ISPs become involved in the new landscape, but the Entertainment Industry and the wider economy cannot afford to let the problem get worse. Legally, copying and/or sharing music, movies or software is copyright infringement, no matter what the argument as to artists and labels being overpaid. The music industry may yet be forced to go to war with its own fans.