In a speech to the Royal Television Society, Jeremy Hunt, the UK Culture Secretary, has claimed that file sharing is “theft and a direct assault on the freedoms and rights of creators”. He then went on to state that ISPs and search engines should make it harder to access such content, and advertisers and credit card companies should remove their service from such companies.
Before taking each of his proposals in turn, I would just like to make a point of his language – conflating the crime of theft with the civil law breach of copyright is taking words straight from the lobbyist’s playbook and will not help his cause. Indeed it is simply false to call file sharing “theft” – to quote the Theft Act 1968 s.1(1):
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A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
Artists and content creators should definitely be paid fairly for their work, but digital files are copied, and therefore sharing these copies with or without permission cannot fulfil the “intention to permanently deprive”. There is a reason that no person sharing the latest mp3s has never been charged with theft – it is because theft is a specific crime, and sharing digital files can never fulfil its specific requirements.
Hunt proposed a streamlined legal process to make it possible for the courts to act quickly on sites deemed possibly unlawful by a “cross-industry body” – something which could certainly be useful. The courts are slow to act, and with the fast paced game of internet piracy – they are often about three moves behind in the constant game of “what-a-mole”. That said, everything that comes in front of the courts has the benefit of legal due process which can be slow itself – and that keeps frivolous cases in check and is there to stem the influence of money that has corrupted politics through lobbying here and abroad. Everyone gets their chance to defend themselves – and this is important for a civil society interested in protecting freedoms. As long as this streamlining keeps the checks and balances of due process, speeding up the whole affair would be more efficient for all involved – it is a useful proposal.
Hunt went on to propose that once the courts have found a site to be unlawful – the search engines and ISPs should make accessing those sites more difficult. It is difficult to get a site removed even after a court order if that site is hosted in a country with very different laws, but again if the legality of the site has fallen foul of the courts after thorough examination – then this proposal could be a useful tool. He then proposed similar ideas for advertisers and credit companies which he suggested could remove their services after a court finds against the site in question. All of these ideas could be very useful but the most important part of them is the reliance on the courts to find each site lawful or unlawful.
A good, well thought out speech then you could imagine, but alas that was not the case. As if in an afterthought beneath the proposals above, Hunt noted that:
Experience in America shows that these goals can be achieved by voluntary agreements – but if not we will look at legislative solutions and include these in our forthcoming Communications Green Paper.
So after demonstrating the reliance that we need to maintain on our courts system, Hunt decides that we don’t need the courts after all. Instead, ISPs, search engines, advertisers, and credit card companies could all just bend over for the entertainment industry voluntarily and block sites that they claim infringe their copyrights – no judicial oversight at all. Mr Hunt decided to offer a selection of useful and workable proposals, and then make a mockery of them all by believing that actually the entertainment industry should just get their way without having to prove anything at all.
So which is it Mr Hunt? Did you just write a speech full of proposals in order to actually move forward with a fair and balanced view on intellectual property, or was that all a smokescreen for that last sentence where you just sell out the rights and freedoms of the whole country to the entertainment business?
[Photograph courtesy of James Firth of Dalton Firth Limited]