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Posted at 9:43AM on 18 Dec 06. Permalink.

Nandor has just made my morning. Of course, the threat of that bill still hangs over our heads, but the man must be applauded for his efforts to introduce some sensible argument on this topic.

When will we be brave enough to admit that there is no such thing as IP? Such a statement does not need to contradict an author or artist's rights to assert copyright or to make a living from their work. Let's see this trend toward the protection of 'IP' for what it is - ruthless capitalism applied to creative endeavour and the realm of ideas. Locking down memes, stifling invention and competition, and in the end, the control of personal thought and behaviour by corporations.

Phew. Sounds like the new manifesto of the copyleftists. I'm going to take a few deep breaths and replace my morning cup with a decaf.

Seriously though, who's with me? We need volunteers for the barricades...

Posted at 9:49AM on 18 Dec 06. Permalink.

While I agree with many of the criticisms Nandor makes of the Copyright Bill (and look forward to working with him on highlighting these, and trying to gain amendments), I think it was regretable to vote against the bill at first reading because this gives the impression that the status quo is acceptable, and it isn't. The bill deserves select committee consideration.

Also Dr Marshall's blog is not a legal blog, in that he is not a lawyer. This is not to discount his analysis - I have found much of it very usefu and am very grateful to him for the analysisl. However I have also had a lawyer specialising in this area say that there are some errors there. InternetNZ has commissioned a full legal review of the bill by a lawyer specialising in this area, and will make this analysis publicly available in time.

I'm not a fan of the bill as currently drafted, but it is significantly better than the Australian and US equivalents.

The key problem is the Commerce Select Committee has set a date for submission of mid February which is far too soon. I'm keen to have a workshop on the bill with interested parties, but it will be hard to schedule this before mid February. I am hopeful the deadline can be extended.

A key challenge is going to be not just saying what we don't like in the bill, but providing amendments which will improve the bill and be fair to both content producers and consumers.

Posted at 11:39AM on 18 Dec 06. Permalink.

Great to see at least one politician has made a stand on the side of the consumer.

Lets be clear on this: This is not an issue of right vs left, this is an example of an industry attempting to co-opt government to extend their commercial control over a market. It is rent seeking behaviour. Law needs to be written in such a way as to benefit all the people or groups covered by it's reach, not just the publishers. This is afterall, the Copyright Act, not the Music Industry Market Protecion Act.

Posted at 12:03PM on 18 Dec 06. Permalink.

Also Dr Marshall's blog is not a legal blog, in that he is not a lawyer.

Absolutely - although one does not have to be a lawyer to comment on the law - just to give legal advice. I get a bit tetchy about the idea that the law belongs to lawyers.

that there are some errors there

Be nice and suggest where - my guess is that the phrase "may be" is missing and that we'd have to get in front of a judge to be sure - something I'd much rather see addressed at the lawmaking stage, the experience of this type of law in the US and Australia is that it gets used as a blunt club to beat down anyone who's not a large publisher/media company irrespective of the legal rights and wrongs. After all, who, other than lawyers and large corporates, can afford to fight these cases?

Stephen

Posted at 1:32PM on 18 Dec 06. Permalink.

Ben - the argument might be that Nandor has not taken a stand for the consumer - the Greens opposed sending a bill to select committee that would mean owners of IPods weren't criminals.

They currently are, and the Greens oppose even allowing public discussion of a law that would change that.

I'm with DPF - point out all the flaws in the bill, but vote for it to be sent to select committee so they can be fixed.

Posted at 1:40PM on 18 Dec 06. Permalink.

I think it was regretable to vote against the bill at first reading because this gives the impression that the status quo is acceptable, and it isn't. The bill deserves select committee consideration.

In this case, DPF, I think you're wrong in your assessment. Nandor was completely correct in his vote against the Bill, as by any reasonable reading it's appallingly bad legislation. Parliament has a long and illustrious history of voting down ill-conceived legislation at the first reading, and it should have killed this thing stone-dead at the earliest opportunity. It's an appalling piece of drafting.

Criminalising copyright infringement is the unreasonable use of the State's coercive power to enforce the business model of a small number of multinationals. The idea that the offence of bypassing the DRM on a CD in order to load it on my iPod deserves a criminal conviction, $150,000 fine and 5 years in jail is completely disproportionate to any harm caused.

In comparison, if I get annoyed with my neighbour, smash his windows, set fire to the tree in his front yard and let down the tires of his car, I'll be charged with intentional damage and risk 3 months in jail and a $1,000 fine. Why is this 150 times less harm than copying a CD?

Bad legislation is bad legislation. It should never have gone to select committee and wasted taxpayer time and money on trying to get it amended. And as you note, the closing date for submissions is far too early, which makes me think that the Bill is simply being railroaded.

Nandor absolutely did the right thing.

Posted at 3:38PM on 18 Dec 06. Permalink.

Graeme,

Having read the full text of the speeches from the Minister, and other MPs I would definately agree that the formatshifting issue is the best way to approach MPs about this. They all seemed highly concerned with it, and the effect on consumers.

There is also the national interest argument - if we are serious about a FTA with the US we shouldn't give away a key bargaining position like this for free. I do not think the US Federal government has the power to make the concessions NZ would want in a FTA deal, over agriculture at least, so I don't think a FTA is a good idea for us, given the concessions we would need to make. Anyway, the IP changes are a big part of any US FTA and NZ will need all the bargaining chips it has, if it treats with the US.

Posted at 4:15PM on 18 Dec 06. Permalink.

Personally I'm not a great fan Of Nandor but this piece is well presented and he should be applauded in taking this stand. The draft is an appalling piece of badly written legislation. Rather than having it go to select committee it should be thrown out all together and the authors given a rap over the knuckles for wasting taxpayers time and money.

Posted at 4:20PM on 18 Dec 06. Permalink.

...and the authors given a rap over the knuckles for wasting taxpayers time and money...

Now that, I would like to see happen, just once, in my lifetime.

Posted at 5:09PM on 18 Dec 06. Permalink.

DPF's faith in the political process is touching, but amounts to painting lipstick on a pig. You cannot sort out at select committee stage legislation that is fundamentally flawed, as Tanczsos has kindly pointed out to us.

Posted at 5:48PM on 18 Dec 06. Permalink.

Clarke - IIRC those offences only apply to those who manufacture and sell or commercially deal in such circumvention devices - it in no ways applies to someone who just uses it.

Now I agree the penalties are still over the top even for commercial manufacture and supply of anti-DRM software, but the scare scenario of going to prison just because you hacked a CD you purchased is wrong.

In fact the intro to the bill specifically says actual circumvention is not prohibited.

Stephen M - yes the lawyers have raised issues aroound interpretation that you are taking an overly negative view on some issues. As you say the Judge is the final arbiter. I've actually been meaning to call you to discuss the issues further. As I said I did find your posts very very useful.

Juha - I do not rule out that the bill which leaves select committee may be unacceptable and if so I'd oppose it being passed. But I think the status quo of no format or time shifting exemptions is an appalling one, and provides far greater risks to consumers being stung.

Posted at 6:57PM on 18 Dec 06. Permalink.

DPF,
"In fact the intro to the bill specifically says actual circumvention is not prohibited."

Correct me if I'm wrong here, but where the text of the bill explicitly disagrees with the introduction I thought the introduction has no force? It's only when there's a question of how something should be interpreted that weight can be given to the intro?

In this case "to facilitate the actual exercise of permitted acts where TPMs have been applied" will die in the face of 226C - it's an offence to help anyone break a TPM unless the person is a library, archive or educational establishment. Which is astonishingly narrow given the claim in the introduction.

So while you or me may have the right to rip our new HD-DVD disk to our portable video player, there is no legal way for us to obtain the software to let us do that. As well, 226G means that you'd have to keep the TPM, regardless of whether it's supported by your portable device, you can't decrypt it and store it in an open format.

226G.2b "does not know AND has no reason to believe... enable infringement" wipes out the possible exemption there.

Again, you'll know this and I don't, but can the committee completely rewrite the bill? Substantive rewrites require a new bill to be submitted? Specifically, they can't amend it to say the opposite of what their incoming draft said. So in this case it starts as "Big Media is in charge" and the best they can do is water it down to "most of what Big Media says (without a couple of minor sections)".

Posted at 7:05PM on 18 Dec 06. Permalink.

Kia ora koutou and thanks for the comments

When you have real problems with a bill the question of whether to support it to select committee and use the first reading to highlight problems, or alternatively to vote against first reading, is always a tricky one. Ultimately its a subjective decision and I stand by mine and the Green Party's final position. Having said that, I acknowledge that for others the balance might have been different, for all sorts of good reasons, and respect that. At the end of the day I don't think any of us here are in fundamental disagreement.

I look forward to working with others to highlight concerns and to achieve positive amendments where we can. It is possible that the bill might be amended enough to allow the Greens to vote for it - I hope so, and will work to that end. I do think that having forced a vote in parliament on it was a useful thing to do. If we had not opposed it, it would simply have passed on the voices and any concerns may have been less audible.

It does the government no credit that they have allowed only a foreshortened select committee process. Unfortunately the Greens do not have representation on the Commerce Committee but I will see if my timetable (and the Business Committee) allows me to sit on as a non-voting member. If so I look forward to seeing some of you there.

Have a good summer all
Nandor

Posted at 8:23PM on 18 Dec 06. Permalink.

Have a good summer all
Nandor

Thanks Nandor. When I launched PA System, I wanted an environment where MPs might occasionally feel comfortable posting - but I thought I'd have to do a lot of cajoling before that happened.

Plus, I'm just excited about "malware" appearing in Hansard.

Posted at 9:14PM on 18 Dec 06. Permalink.

One corollary aspect of the IP debate is that royalties due to the artists and publishers goes to collection agencies to be divided up amongst the various deserving. However the administration of these funds seem not to be as transparent or audited, from the artists point of view, as it might be, viz Olivia Newton-John's sueing her label for unpaid royalties from 'Grease'. For the great body of less wealthy artists things are much worse. So it would be great if at the same time that we got IP rights sorted out we could also get the distribution of royalties sorted out. Some background at:
http://www.theregister.co.uk/2006/11/03/peter_jenner/

Posted at 10:23PM on 18 Dec 06. Permalink.

Thanks Nandor for the comments. It would be great to have you included as a non voting member. Likewise also great to get the timeframe extended.

In terms of how much a select committee can rewrite a bill, there are few limits so long as they don't tinker with with the purpose of the bill. So you can't turn the anti-spam bill into the educational vouchers bill.

In regards to the question about the introductionary intent not being reflected in the clauses you are right in that the clauses set the law. However Judges do look at the intent of the act. More relevant is that if we can demonstrate that the clauses do not reflect the intent, it should be easier to persuade the select cmte of changes.

Posted at 10:50PM on 18 Dec 06. Permalink.

Stephen M - yes the lawyers have raised issues aroound interpretation that you are taking an overly negative view on some issues. As you say the Judge is the final arbiter.

David - happy to talk offline as well (particularly if it leads to a strong submission to the select committee...) - my reason for being negative is based on my reading of IP cases. With very few exceptions Judges lean towards a strong protection of economic interests, possibly as a consequence of the explicit invocation of copyright as a property right - something the Government chose to re-emphasize as the first sentence of the current Bill. Cases like the one taken by Copyright Licensing Limited vs Auckland Uni (and others) illustrate this with the judge choosing a very narrow interpretation.

As well, the risk is that we will be held to a very negative interpretation of the law by others in our lives - employers are hardly likely to take risks over employee access to music on iPods after all. Currently my employer bans digital music files on their property because of conservative legal advice. I'd much rather see clear and unambiguous law granting all of us reasonable freedoms - much as the US grants its own citizens most of the time (DMCA and Homeland Security notwithstanding).

I have to say also its been good to hear from Nandor - nice to see an MP actively engaging on issues in modern forums.

Posted at 12:21AM on 19 Dec 06. Permalink.

Clarke - IIRC those offences only apply to those who manufacture and sell or commercially deal in such circumvention devices - it in no ways applies to someone who just uses it.
Now I agree the penalties are still over the top even for commercial manufacture and supply of anti-DRM software, but the scare scenario of going to prison just because you hacked a CD you purchased is wrong.

The way I read the Bill, you're right on the Fair Use front but wrong on the TPM front - that is, the penalties laid down in s226 have no requirement that information on how to circumvent a TPM has to be made available for commercial gain. The wording is:

s226A(2): A person ... must not provide a service, including the publication of information, if --
(a) the service or the information is intended to enable or assist persons to circumvent a technological protection measure; and
(b) knows or has reason to believe that the service or the information will, or is likely to, be used to infringe copyright in a work that is protected by a technological protection measure." [emphasis mine]

There's nothing in there that says money has to change hands for the offence to occur.

And just as a complete aside, Bill Gates thinks DRM is a waste of time:

Gates said that no one is satisfied with the current state of DRM, which “causes too much pain for legitmate buyers” while trying to distinguish between legal and illegal uses. He says no one has done it right, yet. There are “huge problems” with DRM, he says, and “we need more flexible models, such as the ability to “buy an artist out for life” (not sure what he means). He also criticized DRM schemes that try to install intelligence in each copy so that it is device specific.

His short term advice: “People should just buy a cd and rip it. You are legal then.”

The article is here.

Posted at 9:22AM on 19 Dec 06. Permalink.

So, if supplying a device, or information, to get around TPM is illegal.... and some of the pathetic root-kit installers on CD's are circumventable simply by not executing a file when inserting the disk, which can be set in the operating system as a permanent option, or done on a case-by-case basis by holding down the shift key....

Doesnt that make Microsoft or your PC manufacturer liable?

Seems a mighty big call?

Posted at 9:47AM on 19 Dec 06. Permalink.

Doesnt that make Microsoft or your PC manufacturer liable?
Seems a mighty big call?

I think the wording in the bill demonstrates that neither the lobbyists nor the drafters are terribly clear on how this stuff actually works.

Anyway, after some further thought, here's my suggestion for how the Bill should be changed:

Principle 1: Fair Use is desirable and should be legalised. This includes format shifting and time shifting for all types of media (not just CDs), and there's no sunset clause on this. By Fair Use I mean transferring content that you have purchased or otherwise legally acquired between devices that you own or effectively control.

Principle 2: Obtaining content without paying for it or otherwise legally obtaining it for personal use - either by shoplifting or digitally - is illegal and carries criminal penalties, the same way that shoplifting does now. As is the case with other forms of petty theft, the penalties are set in the Sentencing Act 2005 and are commensurate with how much you've "obtained".

Principle 3: Copying content for commercial gain is definitely, completely and unequivocably illegal, and carries the whole $150K fine/5 years in jail penalty, along with confiscation of the equipment used to do the copying/manufacturing. People who rip off other people's creativity to make a dollar are scumbags and should be punished accordingly, IMHO.

Principle 4: TPMs have no special protection under the law. Companies are free to add them as they see fit, but consumers are free to remove them as they see fit to restore their Fair Use rights. For the avoidance of doubt, this means that Fair Use trumps TPMs. There are no penalties or otherwise associated with TPM circumvention, on the basis that this area should be decided by the market and there should be equal power under the law for both producers and consumers.

Just my 2c worth.

Posted at 10:06AM on 19 Dec 06. Permalink.

Clarke- spot on. The details are a lot trickier.... but the principles should be this clearly articulated first. Just my h'penny farthing's worth.

Posted at 10:27AM on 19 Dec 06. Permalink.

Clarke, I agree. It would be really good to see something like that in law. I expect it would be vigorously presented as a removal of existing rights by the copyright intermediaries however, on the basis that they can currently write whatever contract they like and the new law interferes with this. I suspect people like Microsoft would also get upset, as it would very likely mean that you could legally run a cracked copy of Windows that had the activation (etc) disabled. So some tweaking would be needed just to avoid a huge slanging match.

Posted at 10:52AM on 19 Dec 06. Permalink.

I suspect people like Microsoft would also get upset, as it would very likely mean that you could legally run a cracked copy of Windows that had the activation (etc) disabled.

Actually, I don't thinnk it would. When you agree to a Microsoft OEM license, it explicitly says that it is licensed to the machine and not the user - there are other kinds of license that you can purchase from Microsoft that don't have this restriction.

So cracking the product activation is actually a breach of contract law, and Microsoft are well within their rights to drag you through the courts as a result. It's just that it's a civil action rather than a criminal prosecution. And IRIC this is the state of affairs that exists today - any breach of copyright is a civil matter, not a criminal one. So the status quo remains.

And let's be really clear about this - New Zealand is a very law-abiding place, internationally speaking. The annual surveys run by people like the BSA indicate we're in the top 5 in the world for playing by the rules and not pirating software - and this is without a DMCA-style law on the books.

Posted at 11:15AM on 19 Dec 06. Permalink.

Which begs the question, we need this and why?

Posted at 11:40AM on 19 Dec 06. Permalink.

Well if we needed further evidence of the problems DRM legislation can cause, we only have to look at a case from Australia in the last few days where their Appeals Court has said that linking to copyright material at another site, without permission, can be illegal.

This goes back to the problems, from memory around 2000, when commercial organisations, not understanding one of the raison d'etres for the Web and why linking is so important, took umbrage at other sites linking to them.

Well, they lost that battle but now we are seeing modified copyright/DRM laws being used to criminalise folk who haven't done anything beyond linking to copyrighted material.

So, in the future, when I post a link on my personal website at a NZ Herald article which they hold the copyright for, can I see letter coming from their lawyers?

Posted at 11:49AM on 19 Dec 06. Permalink.

There seems to be a number of issues being jammed together here. Wasn't Tizard responsible for some very strange "copyright" law involving photography here in NZ?

Posted at 2:37PM on 19 Dec 06. Permalink.

Clarke - while I agree with your points there's a reason why the criminal clauses for DRM and RMI interference are there - its called TRIPS (see here for the detail: http://artemis.utdc.vuw.ac.nz:8000/pebble/2006/12/18/1166402040431.html) so although i like the sentiment in principle 4 the Government already signed that one away when it became a member of the WTO and agreed to abide by the Marakesh agreement.

John - (hello by the way - good to hear from you again) The Australian case is exactly the sort of thing possible under this new Bill - linking to infringing copies would be a violation of the "communicating to the public" right and would expose you to fines of up to $150,000 and 5 years in jail, unless you could prove that the link was to a non-infringing copy (i.e. iTunes or similar).

Defending this type of thing is never going to fly with the select committee, we're in a much stronger position claiming that media companies should not be able to control consumer choice over playback devices for legally purchased media. Its worth fighting for some strong law here because that would then position us well to fight off "broadcast flags" and other nasties being incorporated into HDTV and other standards.

We need generically stated rights because the technologies are going to keep evolving and the media companies are going to keep trying to lock it all down. After all they want to sell the same thing over and over again: LP, Tape, CD, DVD, HDTV. PSP, iPod, 3d holographic, VR whatever... much cheaper than actually creating new content worth buying.

Posted at 2:45PM on 19 Dec 06. Permalink.

I think Clarke's principles are an excellent starting point.

I'm unsure, but do they need modification to make sure that they cover non-entertainment content, e.g. the diagnostic information that your car's computer can emit? Already the spectre of the DMCA is looming over this in the US. Mechanics are balking at expensive 'subscriptions' required to keep up to date with diagnostic codes, but are scared to use 3rd party tools because of the circumvention aspect.

Do we need to be explicit that 'content' one legally owns includes content created/emitted by devices that one legally owns?

Posted at 2:47PM on 19 Dec 06. Permalink.

We need generically stated rights...
And that I would suggest is exactly what they don't want to happen, never have, never will, because the revenue is in new formats (as you stated) and expolitation of content creators (Courtney Love interestingly had quite a lucid comment on this and was, naturally, pilloried for it).

I say talk to people who have created their own original stuff, first.

The other party really interested in the law of this are the iTunes aggrogators (sp) I'm guessing. In this world your either a Creator or a Commentator, and then along come the Agents.

Posted at 8:09PM on 19 Dec 06. Permalink.

Clarke - while I agree with your points there's a reason why the criminal clauses for DRM and RMI interference are there - its called TRIPS

Ah yes, I had forgotten TRIPS and its WIPO bastard-child. (As an aside, it would be lovely to get somebody in MED who wasn't a complete muppet intent on trading away our rights at the drop of a hat, but that is a problem for another day ...)

So how about we amend Principle 4 as follows:

Principle 4: TPMs have special protection under the law only when they are circumvented to allow illegal commercial distribution. Companies are free to add them as they see fit, but consumers are free to remove them as they see fit to restore their personal Fair Use rights. For the avoidance of doubt, this means that personal Fair Use trumps TPMs. There are no penalties or otherwise associated with TPM circumvention for personal use, on the basis that this area should be decided by the market and there should be equal power under the law for both producers and consumers. However the same penalties that apply to copying for commercial gain equally apply for circumvention for commercial gain - 5 years in jail/$150K fine.

Thoughts?