Speaker by Various Artists


How's that three strikes thing working out, anyway?

by Paul Brislen

Remember the awful parliamentary debate (sorry, "debate") about copyright that ended in an amendment to the Copyright Act? How we all wailed about the futility of it all and the ridiculous "three strikes" process? Well it's not over yet.

The only thing that stands between us and that foolish piece of legislation is the fee the rights holders have to pay the ISPs to investigate their claims of copyright infringement and currently the Ministry of Economic Development (MED) is reviewing how much it should cost.

Clause seven of the Copyright (Infringing File Sharing) Regulations 2011 allows an ISP to charge rights holders up to $25 for processing a rights owner notice. Currently the Ministry of Economic Development  is reviewing the costs involved and it’s vital we all make a submission. Allow me to explain.

The Copyright Act makes it quite clear: copying a TV show, movie, piece of music, book, game, software application or anything like that is a no-no and copyright rights holders have the legal right to challenge you on it if you do.

If you do it once, you get a letter warning you about your breach. If you do it again, you get another letter. Do it a third time and you could face the Copyright Tribunal. I say “could” because you don’t actually get to face them unless you want to – they’re perfectly happy to do it all by email and you’ll get a fine of up to $15,000 which presumably you can pay with your credit card so you can collect the air points.

How does the rights holder know you’ve copied a file? They are merrily seeding software out there in copyright theft land (the torrents, even though we’re all now shifting to “magnets” and if you want to know more you’ll have to buy a friendly geek a beer) so that they can catch you when you begin to share a file. Although the law applies to all copying, they only care about the torrents because they can’t readily police anything else, which is interesting.

The rights holders then have to fill in a form outlining all the various details (time, date, IP address and so forth) and send it off along with $25 to the ISP that is responsible for that particular IP range. The ISP then checks the information and, assuming it’s all correct, sends out the appropriate notices.

These are minor details in that they’re easy to get right if there is real evidence of offending. What this “minor detail” does, however, is stop the rights holders from going on some kind of extended fishing expedition, shotgunning out notices left right and centre hoping to catch someone who’s feeling guilty, something they seem willing to engage in overseas.

The other way we stop the snowstorm of notices being issued is by allowing the ISPs to charge a fee for the collection and verification of this information. The rights holders suggested they might, reluctantly, be willing to pay a few cents towards the cost of the stamp (or similar) for these letters – the ISPs said it would be closer to $40 per notice if not more should they have to do it manually. The government settled on $25.

Twenty five dollars isn’t a lot when you think about the price of a TV show or a movie.  If I’d invested $200 million in a film then $25 wouldn’t seem too great a burden to pay for protecting my rights, however to date not a single notice has been issued with regard to a TV show or movie. Not one. The rights holders have tried all kinds of things to reduce the fee – they’ve tried to get individual ISPs to sign up to a process whereby the rights holders will do all the processing and so the cost per notice will come down dramatically. But one of my sources tells me the rights holders want the ISPs to sign a non-disclosure agreement before they even discuss it, and no ISP will do that.

The rights holders are also avoiding talking to the industry en masse (via a mechanism like the Telco Carriers Forum of which I’m a board member) but instead will only approach this on a one-off basis. Again, the ISPs are (to their credit) standing tall and won’t enter into discussions without the rest of the industry. More recently, I’ve been told the rights holders have begun approaching IT vendors to build this processing capability and is trying to get them to sell it in to the ISPs, but again the ISPs smell a rat and won’t go near it.

The reason the ISPs are reluctant to get involved is simple – cost.

The ISPs in New Zealand know that if they reduce the price of the fee to cents per notice, they’ll be sent tens of thousands of notices a month and regardless of how much processing the rights holders take on board, it’s the ISPs that will bear the brunt of it. And as you know, if an ISP sees an increase in costs, it is we the users who will ultimately pay the price.

So not one notice about TV or movies but also not a single notice has been sent relating to copying of New Zealand content. Not one.

The rights holders in New Zealand put together an ad campaign based on the destruction of value of New Zealand content, yet it hasn’t defended a single New Zealand artist. I find that very interesting – from a PR point of view it’s a massive cock-up because at the very least they could have found one to point to. Either they don’t care enough to pay $25 or there simply isn’t any piracy of New Zealand artists going on in New Zealand. Isn’t that an interesting thought?

The MED review allows for public submissions on its discussion document but comments must be received by 30 April. Have a look at the document and send any thoughts you may have to the MED here.  Because despite its obvious flaws, as far as I can tell the Copyright Act is working – it’s the US-based rights holders that aren’t.

Paul Brislen is the CEO of the Telecommunications Users Association (TUANZ) which lobbies on behalf of end users of telecommunication services.

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