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The Digital Economy Act, Murdoch, Mandelson, Cameron and Google

I have always thought that the Digital Economy Act has more to it than meets the eye. We all focused on the three strikes aspect – and I’m beginning to think we were meant to. But what if the real purpose behind DEAct is not striking down the occasional illegal downloader or thousand, but control of the internet itself? Far-fetched? I wonder…

DEAct has been long in the making, but it grew from a meeting between Mandelson and Murdoch. Murdoch’s News Corp already has $5billion net debt. It is an organization built primarily on newspapers and magazines and TV and radio. Profit from these is almost entirely dependent upon advertising. But advertising is moving from print and airwaves to the internet. Murdoch’s empire is increasingly built on sand; and the sands of time are running out.

One of his much-publicised solutions is to charge for content on the internet. This is going to be difficult. Without stringent anti-copying laws (I do not call them ‘copyright laws’ because I will not sully the honourable intent of the early copyright laws by association with the dishonourable machinations of the contemporary entertainment industry) then free availability somewhere on the internet coupled with easy access by the search engines such as Google will make Murdoch’s attempts to charge for his content impossible.

So, put simply, Murdoch needs to rein in the power of Google, ultimately to stay in business. But he will not be able to control Google directly. Firstly it is too big and powerful in its own right. Secondly, it is philosophically and commercially wedded to the idea of openness (and it wants the advertising that Murdoch is haemorrhaging). Thirdly, it is protected by the US constitution. The only way that control can be achieved is by controlling our use of, and free access to, the internet itself.

Well, pressure from Murdoch and the rest of the entertainment industry ensured that DEAct has become law through the absurdly undemocratic wash-up process at the end of the last parliament. It is noticeable that the Cameron/Clegg great repeal bill will not include DEAct. It should also be remembered that Mandelson was not the only guest of Murdoch in the last few years: Cameron and Osborne have also met him privately.

As far as the 3 Strikes aspect is concerned, there are safeguards in the Act to ensure judicial oversight. But we have already seen in Ireland that the industry will simply by-pass these by doing deals directly with the ISPs. The ISPs have no choice. It is either agree or face repeated and ruinously costly court actions. So in the final analysis, internet users will be suspended (that is, have their internet connection cut) on the simple say-so of the entertainment industry.

But this is not enough for Murdoch. It will not stop the loss of advertising to the internet. However, by making us focus on the three strikes element of the law, we are missing the bigger picture. ISPs are not just liable to disconnect infringing users, they are liable to disconnect infringing websites. DEAct isn’t necessary for this. Existing laws were already sufficient. Today, FASTiis is cock-a-hoop with the news that Newzbin lost the case brought against it by the entertainment industry:

The Federation Against Software Theft has hailed as ‘historic’ the recent judgement taken by Mr Justice Kitchin in Twentieth Century Fox Film Corporation & others v Newzbin Limited case.

The Judge found that Newzbin had committed copyright infringement by authorising infringement, that it was jointly liable being involved in a common design with its users to infringe and it was an infringer by the direct means of making available by communication to the public.

This is not news. It happened in March, before DEAct became law. So why make a song and dance now?

The point as far as FASTiis is concerned is that “Twentieth Century Fox Film Corporation & others v Newzbin Limited sets legal precedent“.  Dawn Osborne, Partner, Palmer Biggs Legal, and chair of the FAST Legal Advisory Group (FLAG), said:

This is a huge step for UK law in this area. Parallels can be drawn with the Grokster judgement in the US. The UK is now an attractive jurisdiction for cases of this kind. Finally this is a step towards the interests of copyright owners against those making a profit from distribution of unauthorised copies.

But without DEAct it is a very costly process. With DEAct, it becomes a very cheap process.

Now, over in the States there is a long-running legal battle between Google and Viacom. Viacom is trying to get the courts to declare that Google’s YouTube is, in effect, similar to Newzbin: a knowing conduit for illegal material. Back to Newzbin, which was “an infringer by the direct means of making available by communication to the public”. This is what Viacom is trying to get declared against YouTube. So if it succeeds, given what has already happened to Newzbin, then Google is suddenly on a very sticky wicket. And given DEAct, it suddenly becomes relatively easy for the entertainment industry to be effective. They simply would not be able to get Google/YouTube taken down. But they don’t need to. With DEAct, they can simply force the ISPs to cut the connection between us, the users, and Google’s websites.

DEAct should not be seen as the entertainment industry trying to protect its rights, but rather as a major step in the war between Murdoch and Google for ultimate ownership of the internet itself. Murdoch is winning. If he succeeds, we will be the losers.

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