Slapdash Bill will damage Britain's digital economy

 

WIRED:The UK government, which is trying to rewrite copyright law, is not as insightful as its internet entrepreneurs, writes DANNY O'BRIEN

THOUGH I’M based in San Francisco now (and my family are from Aherlow), I spent most of my life in the UK. Britain did pretty well out of the internet boom: its universities were as quickly connected to the early net as anywhere, and in Newcastle and London, Brighton and Cardiff, young entrepreurs were quick enough to understand the new technology and exploit in its early years.

It seems such a terrible shame that the country’s politicians never quite caught up. They know that some part of Britain is now dependent on a vibrant “digital economy”, but they appear simply unaware of what that industry is – and when they do see it, they seem determined to squelch it out of existence before it dare threaten them.

At least, that’s my impression from the slapdash and arbitrary digital economy Bill that Britain’s Lord Mandelson has this week put forward.

The theory was always that this Bill would take the suggestions mulled in the extensive “Digital Britain” consultation of the last year and create a new regulatory landscape, crafted to encourage innovation, business and consumer use of the British internet.

To give you an example of how badly it’s failed, allow me to pick (genuinely) one of its least egregious sections. A year or so ago, there was a mild spat among board members of Nominet, the private domain name company in charge of maintaining “.uk”.

Like Icann above it, Nominet has very few responsibilities and quite a bit of potential income (whenever you buy a .co.uk domain, Nominet gets a cut), and some of the board members were concerned that this money was being misused. Naturally, the British government paid some interest and warned Nominet that if it did not settle down, it would be forced to intervene.

Nominet duly settled down. And the government duly interfered anyway. A whole section of the digital economy Bill allows the UK government to take over Nominet, placing its own board members and rewriting its charter in the name of stability. One might think that the hovering threat of nationalisation might serve to destabilise an otherwise perfectly normal private company, but it’s actually worse than that. The way the Bill describes the target of its powers also describes any other company in Britain which runs a top-level domain.

The UK government seems unaware that one of the UK’s more profitable digital sector industries is providing top-level domain services to small foreign nations, as well as running geographically neutral domains like .tel and .info.

All of these companies, whose connection to the stability of the British internet is tenuous at least, will now find themselves explaining to their investors that they are just one step away from being commandeered in some strange internet version of eminent domain.

A mistake of drafting, perhaps? I certainly hope so, because there’s worse to come. The way this section is written also leads me, and several independent lawyers, to conclude that a huge range of companies that offers domains in the UK to other parties, top level or not, is under the same threat, even if their service is incidental to the main market. So Cable Wireless, which owns the “demon.co.uk” domain and frequently offers its subdomains to subscribers, could find themselves with new board members imposed by the British government.

Now, I should stress that I find the idea that the UK government is actually seeking these powers to be somewhat ridiculous: but the ridicule is in its profound misunderstanding of the technologies and industries it aims to regulate, not a simple slapdash approach to drafting.

The same Bill introduces a framework for “three strikes” – the termination of internet for users who have been accused (but not convicted) of infringement by the entertainment industry. But it empties it of any meaningful oversight or judicial review by punting the real details to a bureaucratic code of practice to be decided at a later date.

Details of who might pay for this massive monitoring, tracking and reporting project is left vague, also.

Someone at Lord Mandelson’s department for business must have at least conveyed how impossible enforcing these anti-infringement rules will be against developing filesharing technologies in the medium term. And so, the Bill contains perhaps the worst “we’ll do the hard thinking later” regulation I think I’ve ever seen. In a quick flurry of rewriting of Britain’s existing IP law, the secretary of state for business is given the ability, using secondary legislation, to rewrite the whole of British copyright law for the purposes of fighting infringement.

It is hard to convey quite how destabilising such a power is at this point in the battle between traditional content providers and new innovators such as Google, Apple and Amazon. When Rupert Murdoch claims what Google does when it indexes his sites is “stealing”, he speaks for an entire set of lobbyists who sincerely believe that copyright should declare that to be the case.

With the power to make it so in the hands of one man – especially a man apparently so vulnerable to hearing only one side of the story of copyright – I honestly weep at the future for innovation in the UK. This Bill has to die, or the British “digital economy” it promotes will die in its place: slowly, unprofitably, and unnecessarily.