New Zealand anti-piracy law: Guilt upon accusation
exis
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I realise that this probably isn't very relevant to most of you, but to the few of us living in what is already the ass end of internet connectivity, this is a pretty big deal. On October 31st last year, the Copyright (New Technologies) Amendment Act came into force in New Zealand, with the exception of Section 92A, a last-minute addition which will be be implemented on the 28th of February this year.
Said bill has since been passed, with an implementation deadline of 28th February.
Parliament website link
Section 92A puts the responsibility of stopping internet piracy on the shoulders of ISPs. It might be a positive step, except the Act allows ISPs to be prosecuted by copyright holders for failing to act against any potential pirates. If an ISP fails to disconnect an alleged offender, they are at risk of violating the act. There is no punishment for false accusations outlined under the act. Many organisations considered 'ISP's under the act are completely unaware of the act, and their new responsibilities under it. Similarly, many of these organisations (schools, universities, etc), will need to implement measures to stop any potential piracy from happening, at the risk of prosecution and possible disconnection.
There are going to be a lot of surprised people next week.
(Full article)...“While we recognise that the Act has introduced a number of positive measures, some hastily inserted last-minute changes have placed an unacceptable burden on internet service providers and have the potential to significantly undermine the legal rights of internet usersâ€, Mr Chivers said.
Section 92A, when it is brought into force, will require ISPs to “reasonably implement†a policy to disconnect â€in appropriate circumstances†the internet services of users who have repeatedly downloaded or uploaded infringing music, movies, games and other copyright material.
“The Act gives no guidance on what ‘reasonably implement’ or ‘in appropriate circumstances’ mean,†Mr Chivers said. “This leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence, or worse, allegations alone.â€
...
“ISPs in New Zealand are socially responsible; it’s not their job to interpret and enforce vague laws, particularly when they interfere with their customers’ rights. Worse still, the definition of ISP in the Act captures schools, universities, and libraries – in fact just about anyone who provides internet access to someone else. The loose language Parliament has included in the legislation will require an army of lawyers to interpret, at the expense of ISPs and ultimately, their customers.â€...
Said bill has since been passed, with an implementation deadline of 28th February.
(Full article)...InternetNZ has issued a strong statement advocating a further postponement of the February deadline by at least two months. “A termination policy that meets the law will be very difficult, if not impossible to achieve, without compromising the rights of individuals and organisations to be regarded as innocent until proven guilty,†says executive director Keith Davidson. ...
(Interview)It is easier for ISPs, Internet Service Providers, to cut off anyone who might be breaking the law.
(Full article)As has been discussed before, the above means a “copyright holder†can get you kicked off an ISP without having to provide any evidence of an actual infringement. Having to do so is apparently “impractical†and “ridiculous†in the words of RIANZ chief executive Campbell Smith. What happens when the “you†above is a public library, or a school? Or if the “copyright holder†makes a mistake or a malicious accusation?
Parliament website link
Section 92A puts the responsibility of stopping internet piracy on the shoulders of ISPs. It might be a positive step, except the Act allows ISPs to be prosecuted by copyright holders for failing to act against any potential pirates. If an ISP fails to disconnect an alleged offender, they are at risk of violating the act. There is no punishment for false accusations outlined under the act. Many organisations considered 'ISP's under the act are completely unaware of the act, and their new responsibilities under it. Similarly, many of these organisations (schools, universities, etc), will need to implement measures to stop any potential piracy from happening, at the risk of prosecution and possible disconnection.
There are going to be a lot of surprised people next week.
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Especially not in the Southern Hemisphere.
I mean, with as vague as the act is, they could shut me down for looking at YouTube, because the videos there may not have copyright authorisation.
Fucking Judith Tizard, I swear to God.
And even then, there is just as much room to argue that something isn't 'appropriate' as is.
It just seems like a massive waste of time.
Is the NZ government going to foot the massive bill to have ISPs painstakingly sift through the astronomical amount of data that goes through them and then pick out torrents and zip files and encrypted rars with unrelated names and figure out which ones break what copyrights?
When you set up a system where the people enforcing something have no desire to do so... Well...
Also, of course not -SPI-, the NZ government is just going to believe anyone in a suit that tells them someone is guilty. Then they will punish that person.
Being accused is enough to have your connection cut off, so really anyone downloading large amounts of data would be a target should the ISP choose to crack down on them.
My flat is on what we refer to as 'the torrent plan'. Low bandwidth caps are the norm here (something like 50GB is unusually large - we pay $60NZD for a 25GB/month cap). Our particular plan gives us uncapped downloads from 1am-7am. The plan is obviously aimed at people torrenting large amounts of data. I can only assume our ISP will be looking at us and how much we're downloading overnight. I'm pretty worried that my flatmates are going to get our internet disconnected :?
CDA section 230...that's about it.
- John Stuart Mill
GODDAMNIT NZ GOVT!
Now look what you've done, people are comparing your level of retardation to Australians... AUSTRALIANS!
Alarm bells should be ringing.
Australian myself, and... i've never seen any questionable internet legislation actually effect me.
Reading legislation and seeing the type of rules they're trying to enforce makes you go
But using the services... you know ISPs have no incentive to go around policing their paying customers. And whatever government agency is talking to the ISPs, really not doing much except busting kiddy porn and fake dvd stores.
I heard on the radio that they were reviewing it, so hopefully someone just says it's stupid and they pull it
Its just worded in such an infuriatingly ambiguous way.
The debate itself has been going on for a year or so, and is probably one of the more discussed amendment Bills in recent memory. Despite the fact we haven't got the result we want (anti S95ers that is), I am still happy to see that the Parliamentary process has sort of worked. I just wish more Bills got this level of public scrutiny
Here are a couple more Blog Links to this issue, which I've found pretty valuable. LINK ONE - Recent Debate. LINK TWO - Background to Bill Debate
The relevant Copyright bits are spoilered below. The comments are pretty interesting too, and have a much lower level of internet ass hattery than usual.
Post One - http://www.publicaddress.net/system/topic,1667,hard_news_the_public_bad.sm
You may have noticed that something has happened to your friends' avatars on Facebook, Twitter and Public Address System: they've gone black. You're seeing The Blackout, a netroots protest against Section 92(A) of the Copyright Act, which comes into force on February 28.
David Farrar has a detailed explanation of the problems with the law from a business point of view -- and of the oddities of its progress -- so I'll try and avoid going over much of the same territory. But this is the text the fuss is all about:
92A Internet service provider must have policy for terminating accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
It's vague, but some opinions hold that an "ISP" for the purposes of this law could be any organisation that provides internet service to end users: a library, or a commercial business. What no one disagrees on is that it applies a harsh penalty -- disconnection from the internet -- without the legal process that would traditionally apply in the case of a copyright complaint.
Hence, the Creative Freedom Foundation, an artists' group that has been making the running on protest (and whose website contains a good deal of information and background, as well as instructions on how to join the protest), dubs it "the guilt upon accusation law".
As I have indicated before, I find this issue vexing because I have many friends in both the music and tech industries. At times during arguments over amendments to the Copyright Act I have felt some despair at each side's ability to talk past the other.
I'm still not much interested in naming and blaming. But Campbell Smith's comments on behalf of RIANZ rejecting the Telecommunications Carriers' Forum draft code of conduct on Section 92(A) -- because it is insufficiently draconian -- do make it a lot easier to choose a side here.
Matthew Holloway and Bronwyn Holloway-Smith of the Creative Freedom Foundation have been clear and constructive in the way they've communicated on this issue. They have been at pains to uphold the rights of copyright holders. They have introduced to the debate constructive suggestions, such as a copyright court modelled on the disputes tribunal, as an affordable venue to bring and contest claims.
The copyright-holder side has, in my view, simply walked away from the public good argument that the local music industry has been happy to play on for the last couple of decades. It was a public good that, say, radio stations should be induced to cohere to a local content quota when they'd paid a great deal of money to be able to broadcast whatever they thought would make them a dollar. It was a public good that taxpayers should help fund the industry in a variety of ways.
But apparently the principle of public good only runs in one direction. This isn't the first time: RIANZ/IMNZ presented a submission calling for libraries to be prevented from digitising works simply for archiving purposes (and yes, that is what we fund libraries to do). Along with APRA, it opposed an amendment providing an exception in the Copyright Act for format-shifting -- that is, finally making legal the ubiquitous and reasonable activity of copying your own CDs to your computer or your portable player. (Something, it should be noted, that all those who resisted the law change actually do themselves). They didn't get those. But they did get Section 92.
It appeared that a code of conduct devised by the Telecommunications Carriers Forum, representing the major ISPs and telcos, might ameliorate the worst aspects of the law and outline the processes missing from the text of the act. It also contains a social responsibility section, which commits carriers to avoid the disconnection of "vulnerable" users. (Essentially, they heard the name "Folele Muliaga" in their heads and knew they didn't want to go there.) The fact that the concept of social responsibility was introduced by telecommunications corporates and ignored and dismissed by the rights holder lobby does not flatter the rights holders. At all.
It is not only that this law denies the accused any due process, it is that it stipulates a penalty that no court would impose in adjudicating a copyright complaint even if infringement were proven. Remarkably, someone convicted in a court of law of handling child pornography via the internet would not suffer such a penalty.
It is quite proper to seek efficient ways of adjudicating legal disputes, but the problem with Section 92(A) is that it places the adjudication of a legal dispute either in the hands of parties who are not competent to make such decisions (ISPs and telecommunications companies), or (in the approach endorsed by RIANZ' Campbell Smith) in the hands of one party to the dispute. To say this isn't ideal is putting it mildly.
When the unexpected decision was to restore Section 92 to the Copyright (New Technologies) Amendment Act -- after the Commerce select committee dumped it on hearing public submissions -- it could have been argued that it was necessary for New Zealand to keep in step with other major jurisdictions; most notably Britain and Germany, who were planning similar laws. That is not the case now.
Germany and the EU have both rejected the idea as a breach of civil rights, with the German Secretary of Justice observing in a statement that:
I don't think that (Three Strikes) is a fitting model for Germany or even Europe. Preventing someone from accessing the Internet seems like a completely unreasonable punishment to me. It would be highly problematic due to both constitutional and political aspects.
The long-awaited Digital Britain strategy paper has also rejected the idea of obliging ISPs to disconnect users without due process. They will be required to produce anonymised data on file-sharing and hand over names and addresses to rights holders on receipt of a court order. Yes, a court order.
One argument in favour of 92(A) is that the doom is exaggerated, and that rights holders will be visible and responsible, and would not make frivolous complaints. One would hope this would be the case, because a penalty for frivolous accusations was removed from the amendment bill.
Unfortunately, that probably wouldn't be the case. Under the US law, the Digital Millennium Copyright Act (which does not mandate disconnecting people from the internet, only incentivise the takedown of allegedly infringing content held on servers, and is mirrored in Section 92(C) of our updated Copyright Act) it's frequently impossible to find out who is accusing you of what.
Some time back, Daniel Gardiner, who operates a YouTube channel under the name dannews, posted an amusing mash-up of an Air New Zealand ad, which I embedded on Public Address. I received a C&D letter from Air New Zealand's chief counsel, about which I did nothing -- because I knew that YouTube would act with dispatch, and without asking questions, to take down the clip under the DMCA. This is precisely what happened. But since then, Dan has twice had his entire YouTube account frozen on the basis of complaints whose nature and source he has been unable to determine.
There seems no obvious reason that this wouldn't happen in the case of 92(A) -- indeed, TelstraClear has already stated that its policy would be cut off accounts on receipt of a complaint, because it cannot adjudicate copyright claims. When someone is locked out of a YouTube account, it's vexing. When someone is cut off the internet, it's rather more serious.
So where to from here? It's not just Twitter. The Creative Freedom Foundation will tomorrow announce the details of a Remix competition intended to underline its protest. That will draw in some well-known names in New Zealand music (and, sadly, a couple of artists who are unwilling to use their own names because they fear repercussions). There will also be a flashmob in Wellington. Next Monday morning, this website and many others will redirect to a symbolic black page for several hours.
Like the black avatars, these actions do nothing to change the law in themselves -- but they do engage the news media.
There are other, private representations going on at a political level. At this stage, there are two potential actions. One is repeal of the law, which would require the support of Parliament to pass a repeal bill under urgency this week. That's a big call. The other option is to revoke or delay the Order in Council that enacts the measure on the 28th. That's not simple either.
But the principle here is important enough as to require that both courses of action be explored. This is a bad law.
PS: I'm discussing this with Kathryn Ryan at 11.40 am today on Radio NZ National.
PPS: This is getting weird now. Opponents of 92(a) have started getting strange, anonymous phone calls that seem to be angling for them to say something that endorses copyright infringement. No one knows where these calls are coming from.
Next Post
Public Address reader Mark Harris has a fascinating blog post on the progress of Section 92A of the Copyright Act. He notes the way that it was restored to the amendment bill after being deleted by the select committee, with notice by Judith Tizard and approval from National's Chris Finlayson ("we support what is being done here") constituting the whole of the debate.
But the most interesting part concerns the Officials’ Report on the Copyright (New Technologies and Performers’ Rights) Amendment Bill: Clause by Clause Analysis, a summary of submissions on the bill. Noting support for 92A from RIANZ, the officials said:
Disagree. ISP standard terms and conditions generally already allow for the termination of accounts of people using the ISP’s services for illegal activity, and section 92C already provides for removal of infringing content. There is no clear need for a further requirement for termination of accounts. It is recommended that this clause be deleted.
It's a strong point, and one that has not been highlighted in the debate, so far as I'm aware. It wasn't addressed at all when Section 92A was brought back into the bill in Committee of the House stage. Tizard brought it in, Finlayson gave the thumbs-up, and that was it. Mark has followed up with a clutch of OIA requests in search of other advice.
Meanwhile, the Section 92A public demonstration in Parliament's grounds is now at noon today, having been moved from 12.30 to accommodate another protest. As luck would have it, I'll be there. I'm told there will be another question asked in the House by Labour's Clare Curran today, and you may care to write the Simon Power, the responsible minister, at . I'm told staff have been taken aback by the volume of email on this issue, and more polite emails couldn't hurt.
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Most people who use the internet don't play online games, the only motivation for them to pay for cable over DSL is piracy, so it's directly against the cable-provider's interests to kill off subscribers who infringe copyrights.
Could you elaborate? Because I have no idea why do you differentiate between cable & DSL.
DSL costs half as much and gives you about 1/8th the bandwidth, sometimes less depending how good the cable in your area is.
That's some crappy DSL there.
Damn, New Zealand sucks. Still, dropping paying subscribers costs you money.
That's some pretty normal DSL there, you don't get much speed out of phone-lines and they're a hell of a lot more susceptible to noise.
No. I have no idea how things are in your home town, but that's not the case worldwide, sorry.
Edit:
http://en.wikipedia.org/wiki/ITU_G.992.5
It really comes down to how much of a deal copyright holders want to make out of it. Of course ISP's don't want to get rid of customers, but they may have their hands forced.
Theoretical numbers are pretty, but they have nothing to do with the real world, sorry. And that's still slower than cable, though I'd be surprised at how stupid your telecomm companies are if it costs any less than cable at that pretend-rate.
Yeah, internet does suck back home. We have had data caps for ever.
The problem with NZ in that sense is that we are a largeish country (in size), with a small, dispersed population that while is first world, isn't particularly rich. So large infrastructure projects like rolling out high quality high speed internet to the masses happens slowly, whether publically or privately funded. The last major project like this was terminated in 2003, when the telco realised they woudn't get a return for a damm long time, and their parent company (Telstra - Australian company) refused to keep funding it. So all high speed development since then has been largely via ADSL, whether supplied or resold by the former state telco, Telecom, or more recently LLU DSL alternatives by second tier telcos.
The new government has made noises about pumping in a lot of cash into this development, but if watching Australia's telco sector for 5 years has taught me anything, this kind of proposal takes forever to implement.
It costs less. The numbers are not theoretical, 24mb service is available pretty much everywhere and that's the speed it operates at which gives it about 10mb over regular cable.
If you call fiber optic cable, you're right(just kidding, you'd be wrong. It's not cable.).
Otherwise I have no clue why are you even arguing?
Heh. Australia and New Zealand are very close, we try to align our laws, policies and all sorts of things. This also includes being jerks about internet and copyright.
So take that Australia and England.
Wankers.
Also out internet sucks because literally all our traffic that connects us to the rest of the world is run through one cable on the bottom of the pacific ocean, which the U.S. largely paid for. That and our Telecom had a monopoly in both owning infrastructure and providing service, which only got busted recently.
Edit: Well actually I just researched it a bit further and apparently there is a trial happening with some small ISPs but we are no closer to having the full thing implemented.
How does 24mb service give you 10mb over 30mb service, and how do you not know what "theoretical" means?
Well everyone outside of the government/former government seem to think it 1) isn't workable, or 2) desirable, so lets hope these trials prove this.