I have been having an email conversation with Lord Clement-Jones for the past few days (see blog 1 and blog 2) about the UK Digital Economy Bill. We have been trading complaints and counter-complaints, arguments and counter arguments, but I have had the strong feeling that we are mostly speaking past each other. Not because, as many may think, that one of us, or both of us, don't really understand the Bill. In different ways, Lord Clement-Jones and I are well versed in the implications of the bill, but the ways that we are versed seem to be based in different cultures.
I have had this problem before, that of trying to explain something that from my own experience seems so clear and familiar, but must seem totally alien to the person I am speaking to. I characterise this to my students as something like the 16th century European traveller coming home from what then were far away lands and trying to explain what they saw. Without a common language and a common experience, what is familiar and sensible to one is alien and distant, even impossible, to another. This is what I feel like when talking with well meaning people who think that the UK Digital Economy Bill is a good thing.
After exchanging arguments with Lord Clement-Jones, I felt that one of the problems is with the belief about what the web is. If I may speak for Lord Clement-Jones and the other proponents of the Bill -- an unfair position to take, I know -- I think that they all see the web as a large library or book store. The web for them is a means of disseminating published, or quasi-published, material and the ISPs (Internet Service Providers) are there to accommodate the accumulation and dissemination of this content. Therefore, from their point of view, if some 'publisher' of content, a web page owner, is accumulating or disseminating illegal content or violating someones copyright, the web library or bookstore -- the ISP -- has a duty to remove it from the shelf. More than this, like all good libraries and bookstore, they have a duty to keep a record of all they hold. Very simple, very sensible.
Unfortunately for Lord Clement Jones and the other proponents, the web isn't anything like a library or a bookshop, and ISPs certainly aren't like libraries or bookshops. Not only is publishing on the web far more complex, hybrid and multi-authored, in fact since Web 2.0 it isn't much like publishing at all in the vast majority of cases, but the services that provide for content to move around and be used on the web are nothing at all like a library of bookshop.
The confusion that the Government and the proponents of this Bill have got themselves into is that they don't realise that they are dealing with something that is much more like a distributed, grassroots transport system than an archive. The web is much more like a vast open road system, where all people can not only choose where to drive, and when, but can put up stalls more or less when and were they wish. They can stop where they want for a chat, or a bit of politicking or even to build a community. What the Bill really doesn't understand is the degree that anyone can build and extend their own road system within the existing network, and how anyone can enter the transport system from any one of dozens of points (I regularly use at least 5 ISPs and probably dozens more infrequently). Rather than being something scary and dangerous, this is what gives the great power to the Digital Economy. Shut down or disable this system, and you destroy the economy.
The problem with this legislation is that it thinks it is blocking books on shelves, when what it is really going to be doing is to close down whole streets because someone may have done something illegal on them. We would not expect the occupants of a street, nor the businesses on that street, and especially not the people who maintain the street, to be liable if someone does something illegal on their street. However, this is exactly what this Bill does for digital networks.
There remains no need for these restrictions and unjust obligations as current copyright law more than adequately protects the copyright holder. That the web needs regulation and its use requires responsibility, I fully agree, but let's create fair regulations that punish the perpetrators while ensuring the rights of law-abiding users and service providers.