Unintended consequences: copyright, censorship & the Digital Economy Act

John Scott, Earl of Eldon

Rushed into law in the dying days of the Labour government, The Digital Economy Act has been described by Guardian Columnist Cory Doctorow as establishing an unprecedented realm of web censorship in Britain.

This is not what the Act seeks to do, ostensibly at least, but it is seen as an inevitable if perhaps unintended consequence of a badly framed, hurriedly passed piece of legislation. The Act has many aims, not least among which is combating illegal
file-sharing.

Critics have pointed out that Sweden’s similar attempt to legislate in this area recently suffered an epic fail due to that pesky law of unintended consequences. An initial 30% dip in internet traffic was followed within months by a surge to yet higher levels– only now much of the traffic was encrypted and untraceable, presenting the authorities with even bigger problems than before.

In researching previous blog posts on the history of copyright, I came across an interesting earlier example of the law of unintended consequences leading to outcomes directly opposite to those which had been intended, in the area of copyright and censorship.

Enter Lord Eldon.

Lord Eldon was Britain’s Lord Chancellor between 1801 and 1827, and also took on himself the role of ‘Licensor of the Press and Censor’. This was an edgy time for the British establishment, with the fall-out from French Revolution to contend with abroad, and the Romantic one at home providing a source of sedition and revolt in print. Though his ardour in attempting to suppress ‘pernicious’ literary works could not be doubted, Eldon’s efforts often proved counter-productive. Three times during his career, efforts to censor works by Southey, Shelley and Byron backfired on him badly.

How censorship helped the pirates

The first of these disasters occurred when Southey, who by 1817 had renounced his early revolutionary sympathies and was courting respectability as poet laureate, attempted to suppress publication of Wat Tyler, an early unpublished play of radical taint. Southey sued the publisher for breach of copyright. Unfortunately however, because both the poet and his counsel chose to characterise the work in question as wicked and ‘injurious’, Lord Eldon felt unable to grant them the injunction they wanted. The rationale behind Eldon’s decision was that if he, as censor, judged the work to be pernicious, he could not grant it the necessary license for publication: it was therefore unlawful and could not be afforded copyright protection.

With no copyright to protect the work, the pirates had a field day. The resultant sales for the play were spectacular: Wat Tyler outsold all Southey’s other works combined by two or three times.

On very much the same point of principle Eldon went on to perform the same service for Shelley’s Queen Mab and Byron’s Don Juan, both of which subsequently enjoyed huge readerships. ’By withholding intellectual property protection from books he considered pernicious, he was in theory penalising their authors. In practice, though, the chief effect of his rulings was to ensure that the books he disliked were given a huge circulation.’ (Ian Gilmour, LRB). Despite the absurdity of this situation being pointed out to him, Eldon stuck to his guns. He certainly wasn’t the last public guardian of morality to find himself acting as an inadvertant publicist for the very works he was trying to suppress.

Conclusion

This parable shouldn’t be read as a counsel of despair. Printed works certainly need copyright protection, but it has to be done properly. Legislators as well as lawyers know that the law of unintended consequences is a perverse and irritatingly pervasive thing, and one to whose bad effects rushed-though legislation such as the Digital Economy Act tend to be particularly prone.

It may be a while before any of these bad effects are seen. Writing in April, The Register’s Andrew Orlowski provided a user’s timetable to the Digital Economy Act describing how it could work itself out. He doesn’t expect any technical measure to be put in force until Spring 2012. Sooner or later however, it’s a fair bet that the legion of bloggers and columnists who have predicted disaster are going to get their I-told-you-so moment.