Prof. Hugenholz's contribution to The Great Download Debate in The Netherlands last week was clear: laws and treaties that are unalterable in the short term will determine the legal framework of the downloading debate. The professor himself called it a "legal reality check". As I understand the situation, it does not matter much whether you vote for the Pirate Party or the conservatives in the upcoming election next week. Successful lobbying by the copyright industry over the last 100 years has led to a system of laws, treaties and international guidelines that has locked down the entire system, and which seemingly can only be changed when moving in the wrong direction. ACTA teaches us that the endlessly lengthening terms of copyright and the further privatisation of the investigations of alleged infringements are not a problem.
So on the one hand our democracy is effectively sidelined. This apparently immutable situation gives the copyright industry a free hand to try to charge you every time you honour the works of your favourite artist by singing out loud in the shower.
Fortunately, on the other hand the vast majority of Dutch political parties understand that a serious enforcement of any download ban is just not feasible. Even hang-em and flog-em politician, Fred Teeven, will no longer be sending SWAT-teams to arrest 14 year old girls who refuse to stop downloading. Even though it is technically possible to tap all the Internet connections in The Netherlands, the political will is simply lacking. The electoral consequences would be almost as bad for the politicians as if they suddenly started promoting road tolls or scrapping mortgage tax relief. For most politicians it is a no-win situation, and they will not want to get their fingers burnt.
So as citizens we have been completely sidelined in the ongoing development of these laws and treaties. However, as no one seriously wants to enforce them, it makes little difference in practice.
Finally there is the technology that - fortunately - has its own laws. For example, the doubling of computing and storage capacity in a fixed period. This has been a stable reality for many decades, independent of economic or geopolitical developments, and thus we can confidently predict it will continue into the future. The technological capabilities of today and the very near future ensure that the laws and treaties referred to by Prof. Hugenholz will be unenforceable, even should the political will magically emerge. Every debate also underestimates the effective bandwidth of a backpack full of hard disks. Storage has become so cheap that is easy to give as birthday presents to your friends and family a year's worth of music on a hard disk or e-books on a micro-SD. And in about 14 months that will have doubled again (more about sneakernet 2.0 this coming summer – downloading is soooo 2009).
In other countries it may be possible to take draconian measures against less technically-savvy people and scare them for a month or so, but then a next-generation technology, made sufficiently user-friendly, will be widely adopted by these people and their friends and family. And the more draconian the measures, the faster the new countermeasures will be developed and applied. Many of the newer tools such as VPN tunnels and other privacy-enhancing technologies are not yet user-friendly enough for the mainstream, but that was also initially true of MP3 downloads. Today, even my father can rip a CD in minutes, upload the resulting files to his network drive and play them through XBMC on a variety of devices around the house.
The download debate is over. The citizens have won. Not within the context of the debate, but by simply ignoring such obviously unreasonable laws and using technical capabilities of which the government is largely ignorant. Similarly in the 1990s the political debate and “policy development” around rapidly maturing bio-tech in plants was irrelevant before it had even begun, due to the pace of technological change and fast adoption. It is this last point that our MPs and civil servants in The Hague should really pay attention to. We'll revisit the whole debate again over the next 15 years, with the emergence of the 3D printer. Just ignore it, while you print yourself a Kalashnikov.
Cory Doctorow wrote a piece in the UK Digital Economy Bill and there is the usual discussion going on. Informative for those new to the debate