Why the Digital Economy Act simply won't work

With the passage into law of the dread Digital Economy Act comes Ofcom's guidelines for when and how rightsholders will be able to disconnect entire families from the internet because someone on or near their premises is accused of copyright infringement.

Consumer rights groups and privacy groups – such as the Open Rights Group, the Citizens Advice Bureau, Which, and Consumer Focus – participated in the process, making the Ofcom rules as good as possible (an exercise that, unfortunately, is a little like making the guillotine as comfortable as possible).

But this isn't the last word in the copyfight – not even close. Because disconnection for downloaders will only serve to alienate entertainment industry customers (remember that the most avid downloaders are also the most avid buyers – "most avid" being the operative word here – the 20% of customers who account for 80% of sales, downloading, concert tickets, box-office revenue, DVDs, T-shirts, action figures, etc). And because those who download most avidly will simply change tactics.

The entertainment industry's capacity to gather evidence and make accusations against downloaders relies on the fact that, at present, most downloading systems don't bother to encrypt the traffic or disguise the user's identity. Neither of these things are very hard to do, though both are computationally more expensive than the alternative. But, in case you haven't noticed, computation is getting cheaper all the time.

Once non-anonymous, non-encrypted downloading bears a significant risk, downloaders will simple switch to anonymised, encrypted alternatives.

For example, SSL-based proxies like Sweden's IPREDator (use of which is also a tonic against identity thieves and other creeps who may be monitoring your network connection) provide a nigh-impenetrable layer of misdirection that confounds anyone hoping to trace a download session back to a user. And services like Easynews.com provide encrypted access to enormous libraries of material including infringing copies of popular shows, music and movies.

So why worry? If users won't be deterred from downloading – and may even be driven to start taking care to protect their connections from snoops and creeps – then how bad will the Digital Economy Act be?

Bad.

Because the naive user who only downloads occasionally will still be in harm's way, as will his family or housemates if his connection is disconnected by an entertainment bully.

And because once the state decides that it has a duty to police the internet to maximise the profits of a few entertainment companies (no matter what the public expense), it sets itself on a path of ever-more-restrictive measures. Once disconnection drives downloaders to make use of SSL-based proxies, watch for Big Content to inveigle their friends in parliament to enact laws prohibiting the use of virtual private networks – never mind that these are the best practice of anyone trying to safeguard a corporate or organisational network.

Once the Act drives downloaders to use SSL-encrypted services that are harder to monitor, watch for the entertainment lobby to ask for great swaths of the internet to be blocked by the Great Firewall of Britain that the Act also provides for.

Once you swallow a spider to catch a fly, you're on a course to swallow a bird to catch the spider, a cat to catch the bird, and so on until you swallow a horse – and every toddler knows that happens next.

Cory Doctorow @'The Guardian'