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

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3. Rights Arguments have a fatal flaw

"Rights" are a strange thing to bring to a consumer argument. You don't hear of rights groups for door handles or text messaging, for example. If you're going to politicise a consumer issue and turn it into a "rights" issue, then there are a few simple rules to avoid failure.

There's an implicit understanding that when it comes to "rights" - people respect each others. Legislators I spoke to weren't convinced the ORG and the Pirates were ever going to respect the creators' rights, especially since so many explicitly said these protections no longer applied to online copies. Rights arguments traditionally invite the opposition to assert their rights even more strongly, and the BPI had this one in the bag before the Bill was published.

So activists found themselves storming the barricades arguing obscure technical points such as the cost of putting passwords on Wi-Fi routers. The trump card that could have been played (2, above) was never deployed. The photographers, by contrast, were arguing for their livelihoods.

In a battle between creation of original material, and the right to access material illegally, who would you expect to win?

4. What was the goal?

Was the goal, for example, bringing the joy of file sharing to the masses without risk of prosecution? That's a laudable consumer goal, and a pro-technology one. P2P file sharing is just the start: we should be able to stream and share files from mobile devices too.

Or were some activists conducting a deeper, ideological war - perhaps one against copyright? Was it all a "consciousness raising" exercise? In the end, it was the Taliban element of the ORG that prevailed over strategy, and legislators sided with the music industry. If it's the case that the activists were ideologically motivated, then perhaps the leadership's wiggle-room was limited. If you make compromises, you risk seeing supporters defect to the more ideologically-pure Pirate Party.

One photographer active in Stop43 had a very telling comment, I thought.

"Whenever we objected to a clause, we gave lawmakers something else to work with," he told me. Few legislators are domain experts, but they want to do the right thing, and don't want to be embarrassed and look daft. The online activists didn't help them in the way Stop43 did - they filled their inboxes with angry emails instead.

5. You can't always choose your friends

The problem with volunteer political groups is that you can't pick and choose your volunteers. People invite themselves along for the ride, and the quality of this talent is variable. Some of the human resources and knowledge available to the ORG are excellent: Richard Clayton's technical analysis for example, and William Heath knows the contours of government as well as any outsider.

But for legal advice, it was a different picture. ORG found its legal case led by oddball solo barrister Francis Davey, whose area of expertise is, er... housing (he's the co-author of The Housing Act 2004 and Residential Lettings: A Practical Guide). And it's hard to imagine sci-fi convention organiser Lilian Edwards being put forward by any other group than the ORG.

One asset the ORG failed to use was former chief Becky Hogge, who in her time as chief spokesperson enjoyed good access to the BBC. Becky had a huge advantage: she didn't sound angry or persecuted. By contrast, former Green Party staffer Jim Killock draws attention to the ORG's Dave Spart contingent - and always manages to sound like a student.

6. Vanity politics: when losing is winning after all.

One possible explanation for the BPI's triumph, is that the ORG activists didn't really want to win. It's in the group's interests to keep the fight alive. For some campaigners, activism is a career choice - and so there's more to be gained by being a copyfighter than a copyfight winner. You may see this as very cynical - but it's a fact that some political conflicts go on for so much longer than they need to because of the entrenchment of a few ideological outposts. When this is the case, you need to lose quite often, and token gestures become worth more than results. ORG chief Jim Killock boasted how donations increased and the group had twice as many full time staff.

Good for ORG, no doubt - but good for us?

There's little point in retreating entirely from the political battle to mutter about conspiracy theories involving big business and yachts and secret lunches. This insults the intelligence, suggesting that no rational persuasion will ever work, and it's all a fix. There was no fix. And the photographers will remind us that the powerful interests that they were up against included an alliance of News International and the BBC. That's much bigger than the record industry. And they won.

We may well ask what "digital rights" means now - is this a pro-technology or anti-copyright movement? What does it stand for? I see it as something quite interesting.

When public choice theory caught on in the mid-70s (it was to carry all before it in the 1980s), it challenged established ideas of democracy and representation and public service with the market. But the technology utopians don't even believe in the market. ®

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