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Hard News: The Public Bad

Posted at 10:28AM on 17 Feb 09. Permalink.

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.

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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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Russell Brown
From: Auckland
Since: Nov 2006
Posts: 8828
Moderator

Posted at 10:28AM on 17 Feb 09. Permalink.

Just getting your attention ...

giovanni tiso
From: Wellington
Since: Jun 2007
Posts: 4074

Posted at 10:35AM on 17 Feb 09. Permalink.

It's heartening that there has been such an international reaction about this.

On the protest's font, I still can't black anything out. Will have to paint the neighbour's cat.

Ben Gracewood
From: Orkland
Since: Nov 2006
Posts: 118

Posted at 10:38AM on 17 Feb 09. Permalink.

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.

This is the largest issue I have with s92a. In addition to the penalty being unduly harsh, enacting a law that requires only interested parties to implement it is madness.

I liken it to the ranchers and rustlers having at each other in the Wild West. But the modern bit-ranchers have a lot more power and a lot less at stake.

Paul Campbell
From: Dunedin
Since: Nov 2006
Posts: 1147

Posted at 10:42AM on 17 Feb 09. Permalink.

IANANZL - but having just read this again:

(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.

"repeatedly infringes the copyright in a work" seems to me reads that one has to download/upload the same work more than once for it to kick in - will the ISPs really be keeping track of that? people accessing torrents are probably vulnerable but most music downloaders are probably exempt.

I know the intent is different - is there anyone around here who is a lawyer who would care to comment on what might be read if it came to trial

Gareth Ward
From: Auckland, NZ
Since: Mar 2007
Posts: 1377

Posted at 10:43AM on 17 Feb 09. Permalink.

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.

I ain't no high falutin' lawyer type - but this seems so blatantly against core concepts of natural justice that I'm floored it's made it into legislation?

Chaos Buddha
From: Nirvana
Since: May 2007
Posts: 27

Posted at 10:50AM on 17 Feb 09. Permalink.

I spoke to a good friend who works for [insert name of large NZ Telco here] about all this, and he said that it's mainly aimed at people who upload music videos and the likes to YouToob, so as to gain some legal footing/footprint in case of needing to pass the legal buck.

He himself downloads media torrents from time to time, and says that he has no plans to curtail this anytime soon ...

John Fouhy
From: Wellington
Since: Nov 2006
Posts: 48

Posted at 10:57AM on 17 Feb 09. Permalink.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work

Can the ISPs say "Ok, we'll cut this guy off -- once the courts have established that he did repeatedly infringe copyright" ?

Or are they required to believe the complainant?

Joshua Drummond
Since: Nov 2006
Posts: 81

Posted at 10:58AM on 17 Feb 09. Permalink.

I'm fascinated by the phone calls - has anyone thought to record one? What do they say?

Hamish
From: The A.K.
Since: Nov 2006
Posts: 132

Posted at 11:01AM on 17 Feb 09. Permalink.

Haven't posted here in a while...

On theme of what the telcos are planning - I've heard that a few ISPs have received legal advice to effect that the law is unenforceable. The feeling is that the have no intention of cutting off any customers without clear evidence, with the exception of those that would be violating their existing TOS anyway.

Russell Brown
From: Auckland
Since: Nov 2006
Posts: 8828
Moderator

Posted at 11:01AM on 17 Feb 09. Permalink.

Can the ISPs say "Ok, we'll cut this guy off -- once the courts have established that he did repeatedly infringe copyright" ?

One option is that they hand on the complaint to the police, who will not have time to deal with.

Stephen Judd
From: Wellington
Since: Nov 2006
Posts: 1979

Posted at 11:02AM on 17 Feb 09. Permalink.

he said that it's mainly aimed at people who upload music videos and the likes to YouToob, so as to gain some legal footing/footprint in case of needing to pass the legal buck.

So what? That's not what the legislation says. This is the kind of smug I'm-all-right-Jack complacency that really gets my goat.

Also, ask your friend whether he'd like his internet access yanked because someone repeatedly complained about him. If he says "but it's not going to be used like that", ask him how he knows. Then point him at some information about how copyright holders in the US have used US copyright laws, and ask him how confident he feels that they will not use all the scope the law allows here.

Zippy Gonzales
From: Wellington
Since: Nov 2006
Posts: 161

Posted at 11:12AM on 17 Feb 09. Permalink.

What really creeps me is how the US entertainment lawyers are going to interpret the law. From what DPF has mentioned, no ground is being given to interpretation. They're playing hardball.

Wammo
From: Auckland
Since: Nov 2006
Posts: 30

Posted at 11:14AM on 17 Feb 09. Permalink.

Frustrating that RIANZ, IMNZ and in particular APRA purport to represent the copyright holders but have no mandate from their members (apart from the record companies in RIANZ's case) to hold their current stance.

The sooner artists can find more ways to weed out the middle men in their industry the more profitable it will be for them in the new digital future.

I'm dismayed at the lack of progress we have made in new broadcast mediums such as streaming on demand and podcasting compared to Australia and the US. The industry players still have not nutted out agreements that allow traditional broadcasters to explore new ways of getting creative content to wider audiences.

From my standpoint it is the artists who lose out first.

Mark Harris
From: Waikanae
Since: Jul 2008
Posts: 1338

Posted at 11:15AM on 17 Feb 09. Permalink.

it's mainly aimed at people who upload music videos and the likes to YouToob

As I said to the then Minister (Tizard) when Don Christie and I met with her and officials to discuss ACTA, it's the unintended consequences of such a law that I worry about.

Her response (correct me if I misremember, Don) was that there were no unintended consequences, which tells you a lot about the type of thinking that went into this law.

Mark Harris
From: Waikanae
Since: Jul 2008
Posts: 1338

Posted at 11:16AM on 17 Feb 09. Permalink.

From my standpoint it is the artists who lose out first.

Too right, but some of them don't see it that way.

Ben Gracewood
From: Orkland
Since: Nov 2006
Posts: 118

Posted at 11:16AM on 17 Feb 09. Permalink.

Her response (correct me if I misremember, Don) was that there were no unintended consequences, which tells you a lot about the type of thinking that went into this law.

That really is appalling. How hard is it to do a tiny bit of research into the chilling effect of laws like this and the DMCA?

Hamish
From: The A.K.
Since: Nov 2006
Posts: 132

Posted at 11:16AM on 17 Feb 09. Permalink.

So what? That's not what the legislation says. This is the kind of smug I'm-all-right-Jack complacency that really gets my goat.

Have to agree with that. Copyright holders don't need a NZ law to protect them from uploaders to YouTube (or any US based website) - they already have the DMCA.

Section 92 is designed specifically to target NZ downloaders with a complete lack of evidence, dispute process or recourse in the case of false accusation. I suggest that Chaos Buddha reeducates their friend on the realities of the situation.

Stewart
From: Te Ika A Maui - Waitakere Chapter
Since: Oct 2008
Posts: 340

Posted at 11:20AM on 17 Feb 09. Permalink.

Thanks, Russell, for your post explaining all this complicated issue in a clear & concise manner (for those of us on the fringes & not actively involved in the issue).

It has cleared up some misunderstandings for me.

The wording that has been quoted from the bill shows that we aren't getting 'best practice' law definition from our government(s) and it makes us look kinda hicksville.

Stephen Judd
From: Wellington
Since: Nov 2006
Posts: 1979

Posted at 11:20AM on 17 Feb 09. Permalink.

Frustrating that RIANZ, IMNZ and in particular APRA purport to represent the copyright holders but have no mandate from their members (apart from the record companies in RIANZ's case) to hold their current stance.

I'll wait for someone from APRA to correct me if they're reading this, but my understanding is that APRA can and does have corporate members. They don't just represent songwriters, they represent any copyright holder. Further, voting power in APRA is a function of your copyright income from the previous year - you get one extra vote per $500 of income.

Seen from that perspective, I suspect they do in fact have a mandate from those members with voting power.

Juha Saarinen
From: Auckland
Since: Nov 2006
Posts: 461

Posted at 11:22AM on 17 Feb 09. Permalink.

I have some sympathy for National because the mess that's the new copyright act was Tizard's. No doubt the act needed modernising, but that's no excuse for the bad law she came up with (and which National and Peter Dunne voted to pass).

Rich of Observationz
From: Back in Wellington
Since: Nov 2006
Posts: 1941

Posted at 11:22AM on 17 Feb 09. Permalink.

Essentially, they heard the name "Folele Muliaga" in their heads and knew they didn't want to go there

People rely on the Internet for vital life support? Or is that "no-life" support?

Ben Gracewood
From: Orkland
Since: Nov 2006
Posts: 118

Posted at 11:24AM on 17 Feb 09. Permalink.

People rely on the Internet for vital life support? Or is that "no-life" support?

There are medical devices available that report status (blood pressure, weight, etc) via the 'tubes, but I'm not sure how life-essential they are, and/or if they happen to be in use in New Zealand.

Graeme Edgeler
From: Wellington, New Zealand
Since: Nov 2006
Posts: 1476

Posted at 11:31AM on 17 Feb 09. Permalink.

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.

So where's the bit that says they have to cut me off on the basis of accusation only?

Stephen Judd
From: Wellington
Since: Nov 2006
Posts: 1979

Posted at 11:43AM on 17 Feb 09. Permalink.

Graeme: see here - it appears to have been the intention that "repeat infringer" could mean someone accused of infringement, rather than someone who had been found to be infringing by a court.

As far as I can see, "repeat infringer" is not a term defined elsewhere in the Act.

Peter Martin
From: Dunedin
Since: Nov 2006
Posts: 141

Posted at 11:44AM on 17 Feb 09. Permalink.

There are medical devices available that report status (blood pressure, weight, etc) via the 'tubes, but I'm not sure how life-essential they are, and/or if they happen to be in use in New Zealand.

Defibrillators implanted in people allow doctors to both monitor and make adjustements online. I understand it's done when folk are generally asleep with the wireless station near the persons bed.

I aslo understand that in theory it is possible to hack into it.

Ex US VP Cheney has one such implant. ;-)

Stephen Judd
From: Wellington
Since: Nov 2006
Posts: 1979

Posted at 11:44AM on 17 Feb 09. Permalink.

Or to put it another way: the minister, the ICT industry, and the recording industry all think that's what it means. I can see it's vague enough that court might not, but why leave that to chance?

Hamish
From: The A.K.
Since: Nov 2006
Posts: 132

Posted at 11:48AM on 17 Feb 09. Permalink.

92D Requirements for notice of infringement
A notice referred to in section 92C(3) must—
(a) contain the information prescribed by regulations made under this Act; and
(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.

You can read up on the 'information prescribed' elsewhere, but this is what constitutes an 'infringement'. Get three of these and you are a 'repeat infringer' and the ISP is obliged to cut you off, otherwise they become liable under 92D.

The law is actually pretty specific about how easy it is to accuse someone, and the actions the ISP have to take.

Joshua Drummond
Since: Nov 2006
Posts: 81

Posted at 12:02PM on 17 Feb 09. Permalink.

I wonder how many people might conceivably breach this law. Would it constitute copyright infringement to watch a music vid on YouTube, let alone upload one? Or, even, to watch a home video online in which "Happy Birthday" plays in the background?
If so, wouldn't it mean that this law, if fully implemented, could (theoretically) see every casual internet user without internet access?

I also wonder about the effect on universities. IT students in particular indulge in a fair bit of torrenting on university owned servers, and it's not all Linux downloads. Given the broad definition of ISP in this law, does this mean that a whole university (in theory) could lose its ability to access the Internet?

And is there any distinction between those ISPs who provide access to data pipes, and those who provide the pipes themselves?

Bart Janssen
From: Auckland
Since: Nov 2006
Posts: 714

Posted at 12:10PM on 17 Feb 09. Permalink.

People rely on the Internet for vital life support?

Yes, or more accurately for systems that are important if not essential for health.

And in addition there are a huge number of disabled who gain tremendous benefit from the internet.

Andrew Long
From: Dunedin
Since: Aug 2007
Posts: 3

Posted at 12:11PM on 17 Feb 09. Permalink.

Ultimately anything distributed over the internet is copied. That's how it works. Perhaps it follows that the internet is a repeat infringer (on a faiirly massive scale at that) so should be compelled to cut itself off or at least, send itself to the naughty step for some time out ...

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