Hard News by Russell Brown

141

The Public Bad

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.

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