What now for the Digital Economy Act?

If Ofcom is smart, it will permit internet users to download music free of charge...

There was something of a subterfuge to the way in which The Digital Economy Act was passed through parliament this summer. Introduced at the tail end of the last government and receiving assent at the beginning of this one, its fast track passage has left it woefully bereft of the kind of nuances that such an important piece of legislation surely requires.

At least legislatures had the sense to acknowledge as much. Peter Mandleson, who introduced the bill, left its terms flexible to point of provisionality. At present, rights-holders will be permitted to investigate abuses of copyright and inform Internet Service Providers, who will then be responsible for warning users to desist. But, crucially, the conditions under which such action will be required have not yet been decided. A legal definition of 'copyright infringement' will be outlined by Ofcom in a regulatory code presented to parliament this Autumn.

That this all-important clause has been omitted from the Act is in some ways unsurprising; it represents utterly unchartered legal territory. In essence, to decide on terms of infringement, regulators have to address a dilemma that has vexed music moguls and movie suppliers since the dawn of downloading : what constitutes a legitimate file-sharing 'peer', and through what kinds sites should these 'peers' be permitted to share files.

Early pronouncements from those responsible for this decision have been little cause for reassurance. Last week, Lord Lucas suggested to the Guardian's Helienne Lindval that the law would avoid criminalizing file sharing between friends, but instead target users that sought files from profit-making host-sites. Hence, an advertising-free site like Dropbox (where users share online data spaces in order to download each other's files) would be permitted, but not one like Pirate bay (where the same process happens, but users have to put up with erratic popups and third-rate advertising).

But as most reasonably savvy internet users will sense, the distinction here is blurred. Facebook profits from advertising, for instance, and it has always made provisions for the transfer of audio and video files. And the inbox pages for googlemail and hotmail are full of adverts. Surely Lucas wouldn't wish to criminalise the emailing of MP3 files?

If not profit-making, though, what is the distinction Lucas is trying to draw?

Arguably, the real issue is the amount of file-sharing that a site facilitates. Whilst a site like Dropbox allows a user to download only their friend's files, Pirate bay facilitates the downloading of millions of discrete files. But there are problems here too; some friends are more generous with their files than others, for instance, and some files (especially new music releases) are in higher demand, so any restriction on the quantity of downloading per site seems unlikely to protect artists and songwriters.

Rather, it seems to me that the suggestion Lucus is making (albeit gropingly) is a far more contentious one. That is, that some online 'friends' are simply more legitimate than others. What, in essence, makes file-sharing on Facebook, Dropbox and Myspace passable, but not on Pirate bay or Limewire, is that user-connections on the former have a tangible real-life equivalent, whereas on torrent sites, users almost never know the person whose file they are using.

Certainly, any standard based on allowing file-sharing between 'friends' but not 'peers' (as it were) would dramatically curb the amount of online file-sharing, most of which goes on between people who have never met. It might even, alas, be workable. But it would also represent an unprecedentedly draconian piece of state-nannying.

The internet is full of sites which encourage connections between people who have never met. Last FM, the online music radio site, prompts users to 'friend' eachother in order to discover new music. Facebook encourages members to join groups and start discussion threads with strangers; Twitter relies on this kind of intercourse. Indeed, virtually-formed relationships lie at the very heart of what has made the internet, a network originally existing solely of collaborative chatrooms, such a huge phenomenon. To argue that they are in some way less legitimate than real-life ties seems to undermine the very sense of democratic altruism upon which the web has flourished..

Where does all of this leave the Digital Economy Act? It seems to me that any attempt by Ofcom to regulate file-sharing will be doomed to failure.

Consider the following scenario: A user logs into a site advertising itself as a forum for people interested in new film releases. All users have, via their shared interest, established a inchoate relationship with each other. On this basis, they begin to share files. Should they be prosecuted? Only, according to Lord Lucas' latest comments, if the site begins to profit from hosting the connections (e.g. via advertising). But why would it want to? An internet site is relatively cheap to run, and it would be worth the efforts of any one (particularly keen) downloader if it represented a means towards extensive file-sharing. Hence the case ranged against the Digital Economy Bill by BT and Talktalk, both of which have claimed that law will simply drive internet users towards more obscure sites.

In fact, the only effective standard for Ofcom to use is one that (admittedly) Lucas and others have already hinted at: one in which all file-sharing is permitted, and in which film and music artists and producers make money via direct negotiations with ISPs. A big commerical deal, like the one already attempted between Virgin Media and Universal Music group, would take the pressure off ISPs (who are surely loath to become cyber police) and ensure songwriters, directors and their like a proper source of revenue.

If Ofcom is to decide on a fair and workable system, and make good a rather shoddy piece of legislation, it must steer well-clear of contentious definitions of file-sharing and allow carte blanche on downloads. As long as we pay to enter the online world -- and we will have to start paying considerably more -- what we take from it should be free.

UPDATE 21/11/2011: A key civil servant admits The Digital Act passed despite lack of independent evidence on effects/extent of piracy