Sad political (and Internet) nerd that I am, I watched most of the House of Commons debate on the Digital Economy Bill last night on BBC parliament rather than following Arsenal’s single-handed defeat by Lionel Messi at the Nou Camp. Some of the MPs contributing to the debate made more sense than others – I was impressed with the contributions of Tom Watson, Fiona MacTaggart and John Redwood, whereas on the other hand Sion Simon really didn’t seem to be willing or able to grasp the difference between a court and a tribunal. Peter Wishart’s self-centred contribution was all the more galling given that, as I own several Runrig albums and have seen them play live on a couple of occasions, he’s probably the only current MP to have actually earned any money from me that I’ve paid voluntarily. I was also a bit disappointed with my own MP, Peter Luff – after damning the bill as unworkable and badly managed he then said he’d support it, which, unless I’m missing some bizarre piece of underhand political machination here (and, given the way in which parliament works, I can’t entirely rule that out), is a bit like being served an inedible dish at a restaurant, calling for the manager to complain but then saying you’ll eat it anyway rather than insist on your money back. Stephen Timms, summing up for the government, showed himself to be more than a little gullible by parroting music industry propaganda as if it was fact and then claiming that the Bill will be the answer to the problem – he probably believes he’ll still have a job after 6th May, as well!
In the middle of all the arguments on both sides, though, some of the most telling comments came from MPs who had no hard and fast position one way or the other but contributed from a position which can best be described as man-in-the-street neutrality. One of those was Neil Gerrard, who made some good points about complex subjects requiring plenty of scrutiny, but also brought up the “you wouldn’t steal a car” argument. This is what he had to say at that point:
Some of the arguments put by those who sent e-mails and lobbied about the Bill seem completely spurious. For instance, to suggest that a little research somewhere that says that people who illegally download also spend more, and that that somehow justifies the illegal downloading, seems total nonsense. If I went into a book shop or record shop and stole a CD or book, it would hardly be acceptable for me to say in my defence, “Well, actually I spend more than average in this shop.” I would be laughed out of court. It is theft to do that, and it is theft knowingly to download something illegally.
On the face of it, this seems a reasonable argument – the fact that you do a lot of something legal is no justification for doing even a small amount of something illegal. And you would be laughed out of court if you used your genuine purchases as a defence against a shoplifting charge. But this is an example of the Fallacy of the Inappropriate Analogy – an argument which works in one scenario can’t automatically be transplanted to another where different rules apply and still have the same validity. There are two reasons why his analogy doesn’t work here. Firstly, it’s true that most people would agree that theft is bad. But why is theft bad? The reason it’s bad is because it causes direct, tangible loss to the owner. That’s a good reason to legislate against it. But copyright infringement doesn’t cause direct, tangible loss to the copyright holder. At best, it causes no loss at all. At worst, it can cause indirect loss due to the loss of a sale that might otherwise have been made. At worst, though, that’s still a loss of some form, so it is still bad. But the point of the research referred to here is that copyright infringement – at least, in this type of situation – doesn’t cause loss. And if it doesn’t cause loss, then why is it bad?
The second reason this analogy fails is that the research points up the difference between shoplifting and copyright infringement. In the real world, most shoplifters don’t also spend more at the stores they steal from. If they did, then stores might actually not care so much about shoplifting. If allowing people to have things for free increased the overall take, then shops would be falling over themselves to encourage people to take free stuff and then come back to buy later. Tesco, Sainsbury’s et al may not exactly be paragons of corporate virtue, but they do compete – fiercely – with each other and they’d be quick to exploit anything which increased sales.
Finally, of course, Neil Gerrard’s final remark in that paragraph is simply false. It is not theft knowingly to download something illegally, and there is no legal sense in which it can be. Theft is a well-defined legal term, and, while it may be acceptable for the man in the street to use it by analogy to apply to other scenarios, it isn’t acceptable for a legislator to make the same basic error. You wouldn’t steal a book – but you might borrow one if you weren’t sure that you would like it enough to spend money on it (or if you couldn’t afford to buy one). Or you might buy a second hand copy – in which case none of the money you spend on it goes to the publisher or author. So what’s so wrong with lending and borrowing music?
At least the Sion Simons and Peter Wisharts of this world are knowingly arguing in favour of a law which favours vested interests over consumers. But the likes of Neil Gerrard are being deceived into doing so because of their failure to understand the principles involved. That, to me, seems to be the bigger failure of democracy.