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Epic Fail: How the photographers won, while digital rights failed

What went wrong?

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How did the music business end up with a triumph with the new Digital Economy Act? How did photographers, whose resources were one laptop and some old fashioned persuasion, carry an unlikely and famous victory? How did the digital rights campaigners fail so badly?

Back in January, a senior music business figure explained to me that Clause 17, which gave open-ended powers to the Secretary of State, was unlikely to survive the wash-up. But he didn't much care; the other sections which compelled the ISPs to take action against infringers were good enough. Anything else was a bonus - possibly even a distraction. Yet to the amazement of the music business, web blocking is now legislation.

I think this is a watershed in internet campaigning. It's not just a tactical defeat, it's a full-on charge of the light brigade, and the biggest defeat for internet freedom in the UK since it opened for business. I've spent time talking to legislators and protagonists, and concluded that it was avoidable. Much of the argument was already lost when the Bill was introduced last November, admittedly, but campaigners' tactics made a bad situation worse. This explodes the idea - sometimes called the 'Overton Window' in the jargon - that by adopting an extreme position, you pull the centre ground your way. The digital rights campaigners forced waverers into the music business camp, and hardened their support for tougher measures against file sharers.

In the end, the BPI wiped the floor with the Open Rights Group.

Let's compare the digital rights failure with the amazing success of the Stop43 campaign - what resources did each have to hand?

The Open Rights Group had 4.5 full time staff, the industrial might of the ISPs, a major quango backing them up in the shape of Consumer Focus, and a sympathetic media happy to let false statements (eg, "disconnections") go unchallenged. And it enlisted the support of 38 Degrees. By contrast, Paul Ellis from the photographers' Stop43 campaign tells me his resources were:

  • A standard hosting account, provided by EPUK
  • My MacBook Pro with a copy of RapidWeaver
  • Nearly a month's unpaid full-time voluntary work from a handful of people - it's back to paying the bills, now
  • The generosity of those photographers and retouchers who made their copyright work and skills available to us to produce the "virals"
  • The pent-up energy and frustration of thousands of photographers who previously had lacked a specific focus - Stop43 gave them the arguments to use and the tools with which to use them

Clearly the failure has something to do with the contents of the digital rights message as well as the tactics. I've tried to highlight a few issues below.

1. Failure to build common alliances

Successful political operators find a division in the enemy and exploit it. It's clear that there were subtle but important differences between the BPI and UK Music, the umbrella organisation that includes the BPI. That reflects historical antagonisms: publishers versus record labels, majors versus indies - this is a business that has traditionally been at war with itself. In addition, many producers accept its position is its own fault: the business failed to innovate new ideas that take advantage of the technology. See Martin Mills summary here: Luddite and paranoid - why the big record labels failed at digital.

The ORG failed to see this, let alone use it to advantage. Several parts of the music business were looking for common ground, most specifically the Featured Artists Coalition, which was expected to come out against the technical countermeasures. But they were spurned.

To the campaigners, everyone was equally evil. If they were dealing with the music business, they were supping with the Devil. Safest not try, then.

2. Failure to play the Trump Card

The strongest argument against the file sharing legislation is that it isn't needed - or at least not yet. Market failure is usually the reason for regulatory intervention: the market should be given a go first. The activists could have argued that if the music business isn't even prepared to offer services such as legal P2P, it's simply being incompetent or lazy (or both), and can't reasonably claim it's tried everything it could. File sharing remains "illegal" because the suppliers refuse to give licenses.

Incredibly, campaigners never made this case. It would have required activists to be pro-business, even pro-copyright, and demand 'where's our legal P2P'? That's certainly something most supporters would prefer to technical counter-measures and tribunals. But it wasn't something the leadership were prepared to argue - even as a means to an end.

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