breaktheinternet.info

Mar 16, 12 9:41 AM

While I was writing the previous post, it occurred to me that gathering hyperbolic claims like the claim that something will “Break the Internet” in one place might help anyone trying to make sense of them. To assist with this task I would like to invite you to join me.

I am setting up a new website, embryonic for the moment but it’s up, called www.breaktheinternet.info. Its purpose is to document, with a quick note and links, any hyperbolic and seemingly catastrophic claims that some proposed change will end free speech, break the internet or cause some other sweeping disaster.

By documenting them we can perhaps help inform a real, honest and sensible debate about important issues. There are two sides to every argument, and if you’re the referee you need to hear them both. I have put a few links there to get it going

So rather than allowing either side to simply dress their commercial interests up as existential threats to the internet, democracy or humanity, lets try to get everyone to raise their game and be a bit more honest.

If you have seen anything worth mentioning, please put a comment with a link here or on the other blog… or maybe on twitter with #breaktheinternet

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Breaking the Internet, one absurd claim at a time

Mar 15, 12 5:10 PM

I’m not much of a geek, so I can’t pretend to understand the technical minutae of the internet intimately.

But one thing I do know is that it was designed to be fault-tolerant, decentralised and robust. The basic technology was developed by the US Defense Department, some say to survive nuclear war but certainly to survive dodgy connections, and it seems to have worked.

While we all have our frustrations with the internet sometimes, and whole countries have been affected by interference from their governments, I have never heard of the whole internet breaking down. Even as bits of it fail, the rest carries on regardless.

The internet, by design, is hard to break.

Which means it’s hard to imagine something which would “Break the Internet”.

Yet that phrase, “Break the Internet” is one I have heard with increasing frequency. It is used as a dire threat, a prediction of doom, the ultimate and unimaginably awful unintended consequence of a terrible and naïve mistake.

Often, it is used as a way of explaining to policymakers, who by-and-large are even less geeky than me, why they should not do something they have proposed.

I first heard it when I was involved with the ACAP project. ACAP is a simple way of making content permissions machine-readable, thereby solving the problem of how automated services like Google are supposed to comply with terms of use.

We were on a trip to the USA to introduce ACAP to various industry and government people. It was going down well, in Europe as well as the USA. It was seen as a way of solving a sticky problem without having to legislate and avoided lots of awkward issues like DRM.

Google, who had initially been keen on ACAP and even delegated one of the search engineers to a committee defining its technical development, had turned against it. Presumably, although they never said this, they realised that if they were aware of terms of use they might have to comply with them.

Public statements were made by the likes of Eric Schmidt saying that there were technical problems with ACAP (even though Google had helped design the technical aspects of it) but implying that once they were solved Google would support ACAP. In fact they never engaged with ACAP to try to solve the supposed technical issues, nor explained what they were.

Anyway, the first time I heard the phrase “Break the Internet” was on that US trip. We had visited Google, and privately, on the way to dinner, I was told that the distinguished engineers were saying internally that ACAP would “ Break the Internet”. So however polite they were being, the engineers did not support it and there was little chance of getting much progress.

Obviously such a dire consequence would be cataclysmic, and nobody could knowingly support something which would lead to it.

But we were surprised because we couldn’t think of how ACAP could possibly do such a thing. How ANYTHING could do such a thing? My conversation was an informal one with a non-technical person (a lesser species at Google) and he was unable to explain what it meant – but it sounded bad.

We asked more technical people at Google but they were unable or unwilling to explain. Silence was the stern reply, and the dialogue pretty much dried up after that.

However we did hear the phrase “Break the Internet” again. This time it came from government officials, who told us that while they liked the idea of ACAP they had been told that it would “Break the Internet”.

We asked if this warning had come with an explanation, they said no. When we suggested that it would be a good idea to set up a meeting to discuss this with whoever had said it so that, once we had established the problem, we could fix it they agreed. ACAP after all, was about the end not the means. But the meetings never happened.

I reached the conclusion that ACAP was not some terrible time-bomb ticking under the internet. Quite clearly it couldn’t break anything at all (not least because technically it didn’t really do anything more than a copyright notice in a book – all it did was make licences machine-readable).

What it MIGHT have broken, or at least changed a little bit, is one aspect of Google’s business rationale. The bit which justifies them accessing any website, and using content by default for their various search products, without asking first, without paying any attention to restrictions or conditions which those sites might have specified in their terms of use and without paying money or offering anything other than traffic in return.

But the damage was done. Every politician and policy-maker wanted to be friends with the internet and with Google. All of them wanted to appear progressive and technically ept. None of them wanted to go down in history as the person who unwittingly “Broke the Internet”, and none of them were geeky enough to ask even the simplest questions to explore the substance of this ludicrous claim, or willing to facilitate a conversation which might lead to an answer.

So, even though they liked the idea of ACAP they were scared of supporting it in case something bad happened. Google’s rivals didn’t want to implement it if Google did not. The well intentioned and in my mind quite benign effort which ACAP represented became controversial and demonised.

The politicians and official, I get the impression, just looked the other way, and hoped that in time everyone would learn to just be friends.

Something rather good was lost, temporarily at least, as the result of a silly catchphrase – “Break the Internet”.

Anyway… it turned out that the absurd, hyperbolic and completely false assertion, in private, that ACAP would “Break the Internet” worked so well that the phrase caught on.

Taking advantage of the fact that many people seem to regard Google and everyone who works for it as some sort of super-species of superior intelligence and insight, unattainable by normal humans, the phrase came out in relation to other “threats” to Google’s (and others’) interests.

Recently David Drummond, Google’s chief lawyer, told an audience at Davos that the European proposals on privacy, specifically the “right to be forgotten” would – yes – “Break the Internet”. Again, clearly absurd, but seemingly taken seriously by those without the confidence to challenge it.

In relation to PIPA and SOPA there were numerous articles and blog posts making, spookily, the same prediction. These pieces of legislation, designed to reduce copyright piracy and help media organisations survive, would “Break the Internet”.

We can all chuckle at this, but it’s not funny. However little this claim stands up to scrutiny, those it is made to rarely if ever have the confidence to challenge it. It’s preposterousness is exceeded only by its effectiveness. It is a crazy, disingenuous, self-interested, untruthful and alarmingly potent claim.

So I want to challenge it, and other equally absurd claims like “the end of free speech” which runs a close second when it comes to silly predictions, and I want to show it up for the dishonest and false allegation it invariably is.

I want to appeal to everybody, especially policymakers and their staff, to not just disregard it but positively reject it as you would any other obviously ridiculous claim. Put it to the test, probe and enquire, find out what is really meant and if you discover that the reality doesn’t live up to the claim then you should deprecate not just the claim but all the evidence or claims put forward by that source.

Demand honesty, demand rigour, demand truth and punish those who would seek to deceive you by ignoring them.


Comments (7)

Paying publishers will “slow down the internet”

Mar 15, 12 4:36 PM

Quite a moderate view from Eric Schmidt, in response to the proposal that German newspaper publishers get a revenue stream from companies which aggregate their content online. The full quote is quite telling, though… “I fear that such a regulation would slow down the development of the Internet because it creates additional costs and leads to inefficiencies”. Equating cost with inefficiency is interesting, it suggests that the most efficient (and therefore best) company is one with no costs. It also suggests that cost is, somehow, bad – free is always better. 

Eric Schmidt works for Google, a company with a 65% gross margin and only one significant revenue stream supporting all their loss-making projects, and who pay nothing for their key resource (other people’s content). They do, however, charge for their own service (advertising), creating cost for other  people. Wouldn’t it be more efficient, therefore better according to his theory, if they gave it all away for free?

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The German solution for newspaper revenues: two cheers, two boos

Mar 7, 12 5:50 PM

The German government is planning to introduce a new right for newspaper publishers to charge ISPs, search engines and aggregators for use of their stuff.

Two cheers, I suppose, because newspapers need all the help they can get when it comes to making money online. They have been pushing for this for a long time and it will provide a much needed new revenue stream.

But two boos, too, because it doesn’t fundamentally solve anything and in my view it risks making some things worse.

The logic, as I understand it, of this solution starts with the observation that consumers ARE paying for content online, they’re just not paying content companies.

Everyone buys a service from an ISP, for example, who makes money from providing users with access to content. Aggregators and search engines are exploiting content and making money from it by selling ads, but not giving any to publishers.

So the solution, in a similar vein to the blank tape levy of old (popular in some parts of Europe), is to collect money centrally from the businesses which are making it and then distribute it to the deserving content owners.

The reason it makes me uneasy is because it uses collective licensing as a primary revenue stream. You don’t sell your product to anyone, you just sit back and let a collective body go and and sort-of tax them, then bank the cheques when they come in.

That’s fine for secondary revenue streams (people photocopying your newspaper for example) where there is no practical alternative, and it works well in many different guises.

The problem in general with using collective licensing as a primary revenue stream is that doesn’t create many incentives to really innovate or invest. If your money comes rolling in from the levy more-or-less regardless of what you do, what is the incentive to differentiate your product and fight for the most customers and most attractive offer?

If you want to negotiate your own deals with aggregators. operate on different terms with different search engines, play one ISP off against the other, offer more rights in return for more money (and less to someone else) or do a whole range of the things successful businesses do, it is made harder or impossible with centralised, possibly mandatory, certainly regulated, licensing in place.

Now in this case I have a lot of sympathy with the German publishers, and they have clearly made their case well to the government.

The sad truth is that there is no primary revenue stream to fight for – advertising isn’t enough, paid models for newspaper content are notoriously hard to make a success of and few if any search engines or anyone else have any reason to negotiate and share revenue.

So given a choice between two inadequate and seemingly stagnant revenue streams what other options do they have? Securing some sort of revenue from those who financially benefit the most from their content seems a lot better than nothing.

But better yet would be to tackle the real root cause of this problem: the protection unfairly given by law to so many of the internet players. The failure of a true market to emerge for content products and companies online is a consequence, largely, of bad law and until it is tackled things won’t substantially change.

The Digital Millenium Copyright Act, the European E-commerce directive and other laws like them need to be substantially overhauled and re-balanced. Unfortunately that is beyond the scope of national governments, in Europe at least, so the best that can be done is to try to minimise the impact of the bad laws with new, slightly less bad ones.

It’s better than nothing. But a lot worse than a true and vibrant market for content products in the digital realm – and could inhibit that market from emerging if the collective approach becomes too entrenched.

What the Germans have here is a bird in their hand, in place of several thousand in the bush. But they’re all sparrows: not very nourishing either way.

The fact that newspaper publishers will soon be looking longingly at the resulting revenue in Germany is a sign of how bad things have got, not that this is really much of a solution.

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Back to BO.LT

Mar 7, 12 4:48 PM

I wrote before about BO.LT, the startup which is seemingly built on a cynical exploitation of the worst aspects of the Digital Miilennium Copyright Act.

BO.LT emailed me today to tell me about the exciting new features they will be launching soon – apparently it will make it easier to “discover interesting things” and “get lost in millions of pages of content that people liked so much that they had to keep a copy”

Don’t worry, all the old functionality is still there, copying fans! (By the way, leaving aside the obvious copyright issues, does their new approach remind you of anything? They sent a picture with their email showing their new interface – I wouldn’t want to infringe their copyright by posting it here but from what I can tell it’s basically the same as Pinterest. Surely they’re not just jumping on another bandwagon?)

They seem to have brought their site down while they reconfigure but I was able to log in and just noticed on their newly blank homepage the box you see below.

Just a reminder about copyright. It means “the right to copy”. Something which bo.lt clearly does not have in a huge proportion of cases – despite the liberal use of the word “copy” as if it’s generally OK.

The good news is that their initial idea seems to have been a failure. The bad news is it looks like they’re staying in the business of showing contempt for copyright. Lets hope it’s no more successful this time…

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Football DataCo loses again

Mar 7, 12 3:02 PM

Some more good news from the courts.

Football DataCo has lost its latest case in the ECJ relating to their efforts to protect football fixture lists.

This has been going on and on for years, and when it all began I took a close interest due to my job at the time managing IP for a big newspaper group which wanted to use fixture lists but didn’t see why it should pay for providing millions of pounds worth of publicity.

In the original case DataCo was claiming that anybody who wanted to use football fixture lists, or information from them, needed a licence, because the lists were a database and therefore covered by database rights.

The ECJ, in 2004, disagreed and said that database rights did not apply in the way that DataCo claimed. This was important quite broadly because it, quite rightly in my view, effectively set quite a high bar for database rights protection.

This caused some problems for a number of sports who had built their commercial model on being able to licence data to, in particular, betting companies.

Prior to the judgement it was generally accepted that database rights applied to almost anything (at one stage I remember claims that the names and numbers of players were protected and couldn’t be used without a licence).

DataCo, always chipper, decided that despite the ruling the ECJ was still wrong and so they started to start another lawsuit to try to assert their rights again, this time claiming copyright instead of database rights. This always seemed rather tenuous to me, because the amount of creativity and originality involved in writing a list of teams, dates and venues doesn’t seem huge.

They sued a number of people including Yahoo who, to their credit given that this is hardly their core business, saw it through. Amazingly the ECJ took the case for a second time. And last week they rejected it.

There may be many in sport wailing about this because it is the ambition of most sporting bodies to claim a share of any money anybody makes from any activity linked with their sport, and this makes that a lot harder.

Betting, in particular, provides an important revenue stream for many sports which is only possible if the sport can find a legal basis for making a charge (or, of course, by negotiation, since both sides have something to lose as well as gain from the other).

However it’s good news for common sense. If the law makes such small fragments of factual information licensable it is seriously altering the balance of IP laws which have always done quite well at protecting creativity while leaving facts unfettered.

So, three cheers for this ruling and a big pat on the back for the litigants who were dragged through it by DataCo and who saw it through.

 

Disclosure: In my previous role I was responsible for negotiating with Football DataCo on this and other issues. In my current role I have been involved in negotiating with them about different matters on behalf of media groups.

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Disruptors disrupted, part two (updated)

Feb 15, 12 12:45 AM

The NLA and Meltwater multi-pronged litigation passed a new milestone today. To remind yourself of the last one, and to get a bit more background on the case, have a look at a post I did previously.

This time the it was the copyright tribunal’s turn to issue a decision.

Meltwater were quick to claim victory. They called it “…a major decision in favour of Meltwater in the UK”. Elsewhere they said that they had been successful in reducing fees which would otherwise have been over £100 million over the next three years.

It’s a funny interpretation of victory. It’s hard not to think of the Black Knight in Monty Python’s Holy Grail, gamely fighting on with no limbs left. Meltwater’s position has at various times been to deny that they need a licence, deny that their clients need licences, deny that what they do infringes copyright, state that what they do benefits newspapers because of all the traffic they get and variously claim that this case criminalises web browsing.

They forced this issue to litigation in the first place, by refusing to take an NLA licence and making a referral to the copyright tribunal. That litigation has now taken them to the high court, the appeal court, the copyright tribunal and is still lumbering towards the supreme court. Costs run to millions of pounds.

So far no court or tribunal has agreed that they don’t need a licence, no court or tribunal has accepted that their clients don’t need licences, no court or tribunal has backed their view that their business exploiting other peoples property doesn’t require the agreement of those whose property they exploit.

So they resort to digging deep into the details of the copyright tribunal’s ruling to find a scrap of respite, something they can claim as victory, from this relentless failure to obtain backing for their stand. For what it’s worth (and I can assure you it’s not worth £100 million), they find it in the tweaks the tribunal has made to the NLA’s tariff (see Paragraph 260 for a summary of the whole decision or for a very detailed analysis of the thinking on fees start at around paragraph 183) which prevent the NLA from making planned increases in the next three years.

But if we’re rummaging around in the tribunal decision, and you should certainly read the whole thing not least because these snippets are selective, a few other points jump out at us.

For example, Meltwater claimed that they were sending out between 1 million to 5 million links per year to their clients (paragraph 78). Subsequent information (paragraph 80) revealed this to be about 70 million in reality.

Meltwater has also claimed on various occasions that their service benefits UK newspaper publishers by sending them traffic which they can then profit from.

In the tribunal it emerged that in 2009 Meltwater provided 94,000 click-throughs to UK newspaper websites (paragraph 86). “Not insignificant” they claimed.

When you consider that the top 5 UK newspaper websites currently reach about 170 million unique users per month it doesn’t seem particularly significant either. Even if you assume each of these only generates a single page impression each (in other words, dramatically underestimate their actual traffic), 94,000 click-throughs is, according to my dodgy maths, somewhere under a hundredth of one percent of their current annual traffic. Probably not the most enormously profitable opportunity they have, and a strong indication that Meltwater clients get most of what they need direct from the extracts Meltwater supplies.

This is significant for a number of reasons, not least in the light of another tribunal revelation. Meltwater claimed that NLA content is only responsible for 4% of their UK revenue (paragraph 77). The tribunal judged (paragraph 89) that 30% was a “much closer approximation”. And since Meltwater’s UK revenues are measured in millions of pounds, their argument that they should pay next to nothing, seems a little tenuous.

The reason I mention these is to highlight the point that some of Meltwater’s figures seem to be dramatically skewed to help them paint a picture. Or, in the words of the tribunal (paragraph 35) referring to Jens-Petter Glittenberg, Meltwater’s Founder and Director:

Either Mr Glittenberg genuinely had no idea about these numbers and was simply guessing wildly, which we find hard to believe, or he genuinely believed his estimates and therefore does not have much of an idea about his own business, which we also find hard to believe or he was simply deliberately seeking to withhold information to further his cause. We cannot resolve which it was and will not do so. However it does mean that we will treat Mr Glittenberg’s evidence with caution.

The tribunal found themselves “…not impressed with Mr Glittenberg as a witness” (same paragraph).

So with that in mind lets turn to one of the claims Meltwater has been making in the aftermath of the decision. They have saved UK businesses, they say, £100 million over the next three years. If true, this is a dramatic and impressive number. But where does it come from?

That, I’m afraid, I can’t answer. I simply don’t know. Not the NLA, I am sure. They currently raise £20m or so from licensing in general, of which this is a tiny proportion, and they have been talking about much lower figures. In fact according to the NLA it would take more like 50 years for the saving from the tribunal ruling to add up to £100 million. Nor can I find the basis for the claim made in various places that Meltwater won on “seven out of nine” points it put to the tribunal.

UPDATE: the NLA has published their own analysis of the Meltwater claims

So it would seem that the victory Meltwater are claiming is that a huge and seemingly made-up cost, which would never have been charged anyway, will now not be charged. It’s a far cry from their lofty ambition to effectively get the NLA licences abolished.

Finally a word about some of the other claims Meltwater have made. The quote at the start of this post, claming a major decision in their favour, comes from a longer article about a lawsuit filed against Meltwater in the USA by Associated Press to add to the ones they’re already fighting in Norwary, Canada and the UK. Valentines day 2012 probably won’t go down as the happiest in the Meltwater household.

But they are bullish. It appears AP “misunderstands” how the Meltwater service works, according to their statement. Their service is “complementary” and “directs users to publisher websites”. Meltwater is “just like any other search engine”. Meltwater “respects copyright”. They are “confident” that their service “is compliant with US law”.

It all sounds a bit familiar. It takes a lot of chutzpah, for sure, to make statements like that on the day when similar assertions have been so humiliatingly deconstructed in another tribunal.

I have a suggestion.

Perhaps Meltwater should stand back and think before spending yet more of their millions on yet another lawsuit. Perhaps they’re wrong. Perhaps publishers do, and should, have a right to say how their content is exploited. Perhaps setting up a company which treats other peoples property as a free resource is just not reasonable OR legal. And perhaps the courts will keep disappointing them,

Maybe what Meltwater ought to be doing is asking itself what a fair deal would be, sitting down and negotiating it with content owners who are willing, and operating a service everyone is happy with.

Just an idea.

Disclosure: I used to be Chairman of the NLA

Comments (10)

Temper, temper…

Jan 26, 12 5:27 PM

Rob Levine has written a review of William Patry’s book “How to fix copyright”. Which you should read. And when you do, you must not neglect to flip over to the comments where Mr Patry has been holding forth in somewhat splenetic style.

Marvellous.

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SOPA hysteria

Jan 16, 12 4:11 PM

Have you heard of SOPA? If you have, chances are you have heard one or other variation on the quite hysterical opposition to it which is being organised online. Various websites are planning to “go dark”. Companies with the temerity to support it are subject to boycotts to get them to back down. The end of the internet is being foretold. This is all about evil big businesses (media companies) trying to destroy and criminalise ordinary people and nifty internet startups (like, um, Google). So we’re told.

I don’t propose to go into a lengthy debate about the issues because once a debate has descended into such cartoonish caricatures, most intelligent people will be naturally sceptical anyway (having said which, see the update below). If a reasoned and reasonable debate is being had, it’s probably not happening anywhere in the first few pages of Google search results. (On the other hand, this article might be helpful).

For me, the core issue is simple. Do we need the internet to be better at supporting those who seek to earn their living from creativity? In my view: yes. If so, do we need the law to help? In my view: yes.

One particular article, though, did strike me as richly ironic.

Cory Doctorow, never exactly restrained on the subject of piracy and copryright, says that his website Boing Boing could never exist in a post-SOPA world because “making one link would require checking millions … of pages…”.

Leaving aside the ridiculousness of that statement, the irony is that right now, that’s exactly what copyright owners are required to do in order to try to police and defend their rights. Thanks to the ill-conceived “safe harbour” provisions of the DMCA and their equivalents in other laws, copyright infringement is effectively unactionable without constant, active policing of the whole internet. Which is obviously not feasible. That is one of the reasons why some of the biggest companies on the internet are able to exploit and profit from content without ever checking rights at all, and why so few companies which invest in content creation are able to thrive online.

So even if it were true, Doctorow’s outrage would ring a bit hollow to all those whose investment in creativity is constantly undermined by an internet built for piracy. SOPA, which fundamentally asks for people to take responsibilty for their actions, in his mind, “…is more than foolish. Foolishness can be excused. It’s more than greed. Greed is only to be expected. It is evil, and it must be fought.”

Such hyperbole is an insult to the idea of intelligent debate. By reducing the issue to a David v Goliath, Good v Evil, Big Bad Media Companies v Ordinary People it also insults the millions of people who would aspire to make a living by being professional creators.

 

Update. I thought I could get away without explaining about SOPA at all but a couple of people have askefd for a little background. SOPA stands for Stop Online Piracy Act and a piece of proposed US legislation aimed at making it easier for content owners to take action against sites which are dedicated to piracy. Some of the arguments against it focus on the possible unintended consequences (sites innocently linking to other sites which host infringing content getting caught  by the rules) and others on other details. There is lots online about it, mostly saying why it’s awful and the end of the internet as we know it. There are other more calm and thoughful articles to be found as well. This one, for example. And this WSJ leader.

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Smart legislation would be great, lets get rid of the dumb laws too

Nov 25, 11 3:24 PM

We might, as Neelie Kroes suggests, be losing the battle to enforce copyright. The hearts and minds of many users might already be lost to the more tempting promise of limitless supply in a copyright-free world. But what role has the law played in creating this situation and what could politicians do to fix it? The e-commerce directive and DMCA need to be back in the spotlight, and the dreadful, if unintended, consequences of those hasty laws need to be recognised and reversed.

 

Neelie Kroes has made an interesting speech, much of which it’s hard to disagree with. Her theme is “who feeds the artist” and it refocuses the discussion about copyright on its core objective: to ensure that creators get paid.

She states the following objectives for copyright:

Legally, we want a well-understood and enforceable framework. Morally, we want dignity, recognition and a stimulating environment for creators. Economically, we want financial reward so that artists can benefit from their hard work and be incentivised to create more.

And she says she’s an “unconditional supporter” of these objectives. Which is good news. I agree.

She comes out as a strong supporter of a better licensing infrastructure, making it easier to legally acquire the rights needed to use content legally. I agree with this too. It’s more or less the same line of thinking I have been promoting since the idea of ACAP was a twinkle in my eye, and it’s strongly supportive of the approach which the Linked Content Coalition is now developing actively.

Smart legislation

She says that “smart legislation” can play a role in bringing about her vision of a better future for creators. Three cheers for that, I say, because the bleak choice to litigate endlessly and expensively is not appealing to anybody least of all the beleagured creators.

I also hope that along with introducing “smart legislation” she also gives consideration to abolishing, or at least modifying, some dumb legislation of the past.

Kroes says:

legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy

This is true, and this is a problem which has been in no small measure caused and exacerbated by the law. Specifically one law.

Dumb legislation

The European e-commerce directive (along with its counterpart the Digital Millennium Copyright Act in the USA) has created the giant loophole through which the coach-and-horses of businesses contemptuous of copyright can be driven.

This directive created the “safe harbour” (to use the american term) which makes internet companies effectively immune from liability (or damages) for the infringements of their users.

In so doing, it went beyond protecting vulnerable new players from the possible  consequences of old law applied to the new world. It also created a huge opportunity for anyone to build a business which can make vast sums of money exploiting content – as long as they don’t do anything to monitor or proactively act on infringements.

Ignorance is not just a defence, it’s a necessity

As far as copyright is concerned, their obligation is to do no more than wait for complaints and then act on them. In fact if they do do more than this they actually increase their liability – ignorance of the infringement is their defence. So the law actually rewards a lack of governance and punishes responsible behaviour. Ignorance, in this case, is not just a defence but an obligation.

Their users aren’t similarly immune, of course. They are expected by the law to take full responsibility for their actions. On the face of it this seems fair; there’s still someone who has liability, it’s just not the internet company who merely provided a facility which a naughty user abused.

ISPs are immune, users are unreachable

However, while the liability may pass to their users, the internet companies don’t actually have to know who their users are to benefit from the immunity the law gives them. Nor are they obliged to hand over whatever details they do have about their users, and most of them will refuse to do so without a court order (after which it may turn out they have little or nothing to give – the one time I pursued this all I got at the end of it was an IP address belonging to a university).

So the copyright owners have to police the entire internet, all the time, in respect of every piece of their content, in order to get infringing copies removed. In reality taking further action against users is expensive, unlikely to result in any meaningful recompence and often impossible even if they are prepared to go to court twice (once to obtain the user details and then again to actually take action against them). And internet companies, freed from the irksome responsibility of even basic governance, are able to build huge businesses with very little cost or risk.

So, unsurprisingly, some of the biggest businesses on the internet depend on this for their viability and enormous profits.

Legislate in haste, unintended consequences guaranteed

One way of thinking about this law, and the DMCA, is that they codified the status quo on the internet at quite an early stage. The internet had largely grown up from a utopian vision of a world free from many of the constraints of the regulated world outside.

This utopian vision used to extend well beyond copyright. I remember when people thought that they were truly anonymous on the internet, that they couldn’t be traced or monitored as long as they used a pseudonym. When people thought that national laws would be unenforceable and that traditional law would never reach the internet. It was truly a utopian vision, from the perspective of those who built it starting with a blank sheet. The hope of many of them was that commercialism and old legal frameworks would never rule the day because in the intangible, borderless new world of cyberspace individuals held the power.

But gradually the real world has chipped away at that vision. Some of it is still there, but just like the real world we have seen the full mix of human nature move online. And as it has the internet has changed. Criminal activity has had to be curbed. Regulation and law enforcement have become an ever growing reality. Surveillance and intrusion has become a fact of life too, with complex steps needed for those who want to try to evade it. Security has improved, peoples willingness to trade online has improved too, and the ingenuity of criminals has raced ahead. An endless cat-and-mouse game. It was ever thus.

Almost no aspect of the internet is recognisable from those utopian early days from the way in which web pages work to the protocols which underpin the most basic functionality

Copyright has been excluded from the evolution of the internet

However, strangely, the internet is no better at dealing with copyright than it ever was. Despite the ability of the internet to simplify immensely complex things – from finding a website to dealing with your banking – copyright remains as old-fashioned and clunky as ever and the internet’s ability to deal with it remains entirely undeveloped. Buying a licence – or even knowing who to buy one from – is, as Kroes points out, is absurdly complex and expensive.

As far as copyright is concerned, the internet remains much as it was when Tim Berners-Lee had the first twinkle of a web page in his eye. Which is unfortunate because at that stage the internet without any effective mechanisms for managing copyright at all.

But why was copyright left behind as the internet raced ahead? What held it in that simplistic, stunted state of evolution?

Well, in part it suits those who have the greatest influence over the way the internet works, so they have (at best) avoided putting any resource into the issue and (at worst) done everything they can to prevent other initiatives from gaining ground. Whether for ideological or commercial reasons (and one very often masquerades as the other) they have no desire for change and can kill any attempts by pronouncing that they would “break the internet”.

But they have been aided and abetted, and latterly incentivised, by laws made in haste for simplistic reasons and which have held the internet suspended in an embryonic form, destined like Peter Pan never to grow up, for the last decade or more.

Poor copyright functionality is complimentary to the new mega-businesses

What it has given rise to is a small cadre of mega-businesses, who monopolise the content-related revenues of the internet and prevent development of new business models. It has impoverished content businesses and destroyed, in many instances, the rationale for investment in creativity.

These mega-businesses, made bullet-proof by the law, have also created a world in which copyright has become demonised and where the less you invest in content the more you make.

Kroes is right to point out in her speech the shame that creators make so little from their creations but she is ducking a big issue if she fails to address the real cause of the problem.

It’s true that enforcement is a losing game but hardly surprising given the protection that the law has given to infringement. Imagine if the law made dealing in guns and ammunition legal and unrestricted, and only criminalised use of guns. Would we have more or less gun crime? Imagine if we abolished speed limits and allowed drivers to decide for themselves how fast to go. Would we have more or fewer road deaths? Imagine if the job of setting duties on fuel were put in the hands of car manufacturers. Would we see cheaper or more expensive petrol prices?

Letting people write the law to favour their own interests is likely to result in laws which minimise their obligations and and maximise their opportunities regardless of the impact on anyone else. That’s why, in democracies, they’re not allowed to do it. The role of politicians is to prevent this happening and ensure that the law strikes a fair balance. With what were doubtless impeccable intentions at the time to protect vulnerable underdogs in the new digital world, the safe harbour provisions of the E-commerce directive and the DMCA have failed the test of time and has proved themselves to be a disaster. ‘

Failed laws should be changed, even if it upsets the status quo

It’s no surprise that these invulnerable internet businesses lobby strongly for the laws which protect them from normal vagaries and costs of business governance, and even for further relaxation to make life even easier for them. Their absurdly self-interested and disingenuous arguments have been given so much exposure, courtesy of their enormous consumer reach and the lobbyists they fund, that they have begun to feel to some as if they are givens, natural truths. We are in danger of getting the world they have wished for.

Nor is it any surprise that their users, who are also the beneficiaries of the impunity to infringe that has been created, dislike copyright and resist attempts to enforce it. Someone threatening to take away the cheap and seemingly limitless fuel that they have grown so used to putting in their cheap and gas-guzzling cars, and they want to keep it.

While it’s great to hear politicians talk about using “smart legislation” to improve things for creators in the future, they shouldn’t consider the recent past as anything other than a salutary lesson. As well as creating better new legislation they need to get rid of the disastrous old legislation which has destroyed much of the opportunities the internet should offer creators.

While I share Neelie Kroes’s frustration about enforcement, I find it equally frustrating to see politicians talking about this as if it’s nothing to do with them. Of course we need to move on, and the first thing we need to do is remove the legal incentives to build massive businesses on copyright infringement.

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