This certainly made an interesting backdrop to my day, as I attended and presented at the Society for Computers and Law event on the topic of "Legislating for Web 2.0". Thanks to my friend Chris Marsden for the invitation - I hope I didn't lower the tone too much. This was a very impressive assemblage of great legal minds from academia, commercial law and regulatory agencies, grappling with the thornier aspects of the package of proposed reforms to the EU framework on electronic communications (good coverage here and here), which will be voted on in the European Parliament in two days' time.
The bad news is that I don't have a lot of time to summarize the day, and worse, I can't make tomorrow's session due to previous commitments. In any event, I don't feel all that comfortable trying to summarize other people's presentations, particularly on the law, in the fear that I will misinterpret/misrepresent points of view and precedents of which I have little or no knowledge. The good news is that, so I am told, mp3 files of all presentations (but not Q&A sessions, which were preserved as a venue for franker exchanges), as well as slide decks and papers (where applicable) will be published on the site shortly after the event. As I won't be attending day two, I can't vouch for any of the content, but from today's presentations I would single out Jon Crowcroft (Cambridge Univ.), Jean-Jacques Sahel (Skype), Monica Ariño (OFCOM), Jonathan Cave (Warwick Univ.), and Viktor Mayer-Schönberger (LKY School of Public Policy, Singapore) as particularly interesting. In any event, when all the presentations become available, I would heartily encourage you all to delve in...
Having excused myself from the burden of trying to represent other people's points of view, I can focus on some general observations, and my own participation. At a high level, despite a wide range of viewpoints on the key issues, I think there were some interesting points of widespread (but not universal) agreement:
- EU regulation, while driven at a high level by Brussels, is in practice codified and enforced at national level by the NRAs, who individually face a wide array of challenges vis-a-vis mandate, scope, structure, funding, resourcing, and cognitive dissonance;
- There is a fairly widely-voiced concern that technological and consumer behavioral change is well ahead of the regulators' learning curves, and that (largely related to resourcing issues cited in point 1), regulators are, for the most part, poorly equipped to respond to these changes in a way that ensures a considered approach to variables which are, frankly, unpredictable;
- There seems to be a fair amount of trepidation and bafflement surrounding the relatively late appearance in the language of the 2008 draft package elements relating to copyright enforcement and the role of telcos in this;
- There seems to be a depressingly low level of awareness/discussion/debate in "general society" about the proposed changes, outside the circles of interested parties likely to be affected.
In this presentation, unlike some previous cases, I actually found myself defending the telecom industry, which probably makes a first. This stems from the fact that I was attempting to view the situation entirely through the lens of a dispassionate investor, wherein I tried to stress that good investors would, on balance, likely embrace a non-ideological, non-dogmatic point of view, and probably come to the conclusion that it is economically unacceptable for a much smaller industry largely bankrupt of ideas (traditional content) to outsource its enforcement processes (and the accompanying costs and liabilities) to telcos and ISPs, at least on the basis of legal obligations. If telcos want to engage in voluntary bilateral agreements with content owners to do the same, that is a commercial consideration, and the market (where it actually functions properly) has mechanisms to respond to this scenario. I personally wouldn't be particularly happy with this outcome either, but at least it would be a market-driven solution rather than one mandated by a centralized regulatory authority. In other words, I prefer suicide to murder...
However, if we're looking at legally mandated measures, then I am very skeptical about their efficacy, due to the asymmetry between geeks and industry/regulators - more often known as the cat-and-mouse game. For example, I mention in my presentation the current growth in the number of BitTorrent proxy services, the most interesting of which, for my money, is Instant Torrents. The service itself is free, but the user has to pay for the associated VPN service, to safeguard anonymity (and a revenue stream for the operators). The message here is that, while telcos are focusing on (and in many cases, investing in appliances to monitor/throttle) BitTorrent, the geeks are already at least one step ahead (providing encrypted HTTP traffic for the masses) - as if this should be a surprise. Moreover, the geeks are actually monetizing a market niche which itself would not exist if not for the efforts of the content industry to emphasize control rather than innovation - via coercing telcos to intervene on its behalf.
Beyond this viewpoint, I stressed the idea that, once a Pandora's Box of legal remedies is opened, we might find huge inconsistencies inside. For example, the content industry focus on throttling/inspecting file-sharing protocols, the failings of which I allude to above, also seems to fail to capture alternative approaches, such as file transfer via IM/Skype (the latter of which is of course inherently encrypted, due to the fundamental design of the application), Mojo, or a USB stick-based revival of the Sneakernet. My question to the audience in the Q&A was to what extreme do we want to take this exercise before we give up?
As a closing point, seeking to illustrate the potential pitfalls of legislation in this area, I suggested that perhaps the current approach should be extended to other industries which also unknowingly enable file-sharing, but which so far have been excluded from the policy debate. For example, we obviously need electricity to power computers, so why not require electricity companies to identify what part of the consumer's power consumption is related to copyright violation or other pernicious uses, and a method to punish consumers accordingly? Similarly, perhaps computer retailers should be required to make buyers of computers sit through a 30-minute indoctrination session, followed by a signed declaration of hostility towards violation of IPR. These are absurd arguments, of course, but in my view hardly more absurd than what the EU may enact in a couple of days.