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Posted at 8:07PM on 19 Feb 09. Permalink.

Remind me not to have a dinner party ...

Right. Chris is a good guy, and a friend, and the discussion was vigorous but never nasty.

But he did immediately jump down my throat, and what he said I took to be indicative of what the other side of this argument are telling themselves.

1. The first thing he said was that I was just trying to clear the way for piracy without consequences, or something. It was a silly and unhelpful thing to say.

2. He did claim that Telecom, "the biggest lobbying machine in the country" had been putting pressure on the government and that was why John Key was jammed into reverse in his conversation with Mikey. The only thing to say about this is that it indicates Chris doesn't have a clue what's going on this week. What's putting pressure on the government is the flood of emails going into Simon Power's office. The idea that it's some black ops by Telecom is just plain wrong.

But if I hadn't been driving on the motorway (and if I'd been able to get a word in properly) I'd have had time to lead Chris to a logical conclusion.

If I accept his contention that the law is fine but it relies on the TCF draft code of conduct, which needs fixing -- and agreement on that seems months rather than weeks away -- then in what sense can it possibly be wise to bring the law into force?

It's possibly the single strongest point. The law doesn't work without the code, and the code isn't there. So why would you enact the law next week?

I don't want much. I'll settle for a six-month delay on Section 92A so the idea can be properly assessed. In the circumstances, I think that's a very logical position.

Posted at 8:13PM on 19 Feb 09. Permalink.

There's a post on Yahoo!Xtra about how the RIANZ wants to educate us about copyright

Recording Industry Association CEO Campbell Smith says they are making good progress with ISPs in their quest to create a code, which outlines a fair process parties must go through before any action is taken.

Which is a little at odds with what he was saying the other week.

Still, RIANZ and APRA have at least got their "it's about education" mantra straight, as Ant Healey showed this morning.

And speaking of spokespersons, what was Arthur Baysting on about on 3News tonight - "around the world wide net 80% of the music is being used illegally" (01:37)

Where did that figure come from?

Posted at 8:20PM on 19 Feb 09. Permalink.

@Simon and Robbery
Yeah, I know this was on Bfm and it's his regular show. But it's not the first time he's made representations on this as "an entertainment lawyer" and never once mentioned any pecuniary interest that he might conceivably have due to ownership of Amplifier.

And if Amplifier is not at least breaking even, he'd be a bad business man to keep it going.

I don't know the man personally but what I know of him, from him, is not encouraging. I appreciate that your (plural) relationships with him cause you to hold different opinions.

Posted at 8:29PM on 19 Feb 09. Permalink.

And if Amplifier is not at least breaking even, he'd be a bad business man to keep it going.

Sometimes Mark, esp. in the music industry, we do things for other reasons than making money. Amplifier is such a project. It's long been subsidised by Chris' work as a lawyer.

I released countless records over the years before making a cent, quite the opposite. I know why we do it, but it ain't good business.

The first thing he said was that I was just trying to clear the way for piracy without consequences, or something. It was a silly and unhelpful thing to say.

But no more unhelpful than the oft repeated line that all copyright owners expect to make a living from their work. Few do. But agreed, it was a silly slap and I imagine he regretted it the moment he spoke.

Posted at 8:36PM on 19 Feb 09. Permalink.

outlines a fair process parties must go through before any action is taken

"Any action"? But the law says the action will be terminating the connection, not some menu of other options. Disingenous.

Posted at 8:37PM on 19 Feb 09. Permalink.

Where did that figure come from?

I agree, and my feeling is that none of that sort of bluster helps anyone, least of all the labels and the musicians. Then again I think that none of what is happening in NZ right now is helpful at all in the bigger picture to the anti-stealing (or whatever it's called this week) lobby. It simply pisses people off more, makes people dislike record companies more than ever, and adds a weird haze of legitimacy to piracy in the minds of many.

They really are their own worst enemies.

Posted at 8:45PM on 19 Feb 09. Permalink.

Remind me not to have a dinner party ...

Nah, just make sure everything can be eaten through a straw (I was going to say "with a spoon" but do you know how much damage those puppies can do?) ;-)

But he did immediately jump down my throat, and what he said I took to be indicative of what the other side of this argument are telling themselves.

Yep. See post above. I'm mildly curious who's writing the songsheet.

The first thing he said was that I was just trying to clear the way for piracy without consequences, or something.

Classic Bush "for us or agin us" - if you get to define your opposition as "bad people who want to do bad things", they have to go on the defensive which makes it harder for them to get their message out.

He did claim that Telecom, "the biggest lobbying machine in the country" had been putting pressure on the government and that was why John Key was jammed into reverse in his conversation with Mikey. ... The idea that it's some black ops by Telecom is just plain wrong.

Diversionary tactic, makes it easier to claim that the problem with the CoP is all the ISPs' fault, engineered by Telecom, the company everyone loves to hate.

If I accept his contention that the law is fine but it relies on the TCF draft code of conduct, which needs fixing -- and agreement on that seems months rather than weeks away -- then in what sense can it possibly be wise to bring the law into force?

I accept his point that Judith Tizzard unfairly kicked for touch by not developing and implementing the necessary Regulations (which are specifically mentioned in the Act), and leaving it to the "industry" to sort out. But, in 6 months, the "industry" hasn't sorted it out, and don't look like doing so any time soon. Hence the new "education" mantra.

It's possibly the single strongest point. The law doesn't work without the code, and the code isn't there. So why would you enact the law next week?

It's pretty crazy, alright. I feel really sorry for the ISPs who are stuck in the middle.

I don't want much. I'll settle for a six-month delay on Section 92A so the idea can be properly assessed. In the circumstances, I think that's a very logical position.

Sounds reasonable

Posted at 8:47PM on 19 Feb 09. Permalink.

But it's not the first time he's made representations on this as "an entertainment lawyer" and never once mentioned any pecuniary interest that he might conceivably have due to ownership of Amplifier.

Just as an aside his was quite clear in his role as owner of Amplifier when on Nat Radio discussing copyright last year. I think it's probably more relevant in underling that he does understand digital music rather than any potential massive conflict that needs disclosure.

Then again, the NZ industry is so small that not having substantive conflicts of interest is the exception. I'm not gonna go any further on that one.

Posted at 8:49PM on 19 Feb 09. Permalink.

Then again, the NZ industry is so small that not having substantive conflicts of interest is the exception.

True, and there's nothing inherently wrong with having a conflict, as long as it's disclosed.

Okay, I'll leave it there too

Posted at 8:51PM on 19 Feb 09. Permalink.

I'd have had time to lead Chris to a logical conclusion.

you flounder a few times and I only hope this is because you were concentrating on driving safely while using your mobile phone and you better have been using hands free.
But essentially Chris lead you to a logical conclusion in the end, rather than you him, and you were talking over him as much as him you.
He also got you to say you don't have a problem with the concept downloading is illegal. you clearly answered no you don't.
yet we have you giving people directions on how to download
copyright material that is easily available from web stores.

you said you don't file-share box-office movies or music then say you downloaded an NZ band specifically The Terminals album and from people you could easily contact if you needed to.
if you're going to be a spokesman for media issues you're going to have to get your story straight.

So why would you enact the law next week?

what do you think that really means?
nothings going to happen till the code is up and running so essentially it a law in waiting, its completely ineffective so what's the point in getting offended by it. Chris is right. its completely based on what the code of practice is.
what do you think is going to happen next week. paint us a picture of how you see next week going down, or the week after that.
Do you think they're going to start handing out notices? how's that going to happen when they haven't even figured out at isp level how to manage this. its going to be a long time till anything gets up and running. A big non event.

Posted at 9:09PM on 19 Feb 09. Permalink.

Haven't seen a link yet, so heeeere's Simon, with a guest appearance by a certain teeshirt:

Then came Napster and it’s aftermath. It was the beginning of an extended period where the largely faceless automatons who now controlled the shrinking number of labels decided to not only bite, but quite viciously attack the hand that feeds.
...

I can almost understand the remnants of the majors in NZ fighting tooth and nail to preserve what they have but the Canute-ism of it all is rather unavoidable and it is, in every way possible, as big a public relations disaster for the labels (at least on a NZ level) as the law suits against kids were in the USA, and thus is equally as self defeating as those ludicrous legal missteps.

Posted at 9:30PM on 19 Feb 09. Permalink.

He also got you to say you don't have a problem with the concept downloading is illegal. you clearly answered no you don't.

To the extent that it would permit a claim of an infringing copy in civil law, no I don't. That right exists for a reason. Reasonable people will argue as to by what mean and to what extent it should best be pursued and how that should nudge into actual criminal law,

I might also point out that my proposal was for for a low-cost copyright court, modelled on the Disputes Tribunal, so Chris could pursue a claim there, rather than incur the expense of going to the High Court. I wasn't saying he shouldn't be able to pursue a claim. The copyright lobby's current position is that the ISPs should bear the cost of its claims, which I don't think is reasonable.

I'm also of the mind that it's not reasonable that 92A mandates a penalty -- disconnect from the internet -- that no court or tribunal would.

yet we have you giving people directions on how to download copyright material that is easily available from web stores.

You've put quite some time into this, haven't you? Graeme was wondering whether a PBS TV jazz series would ever actually appear in Region 4 so he could pay money for it. The DVD you pointed to is Region 1. I wasn't really encouraging anyone to download it, and I didn't do so myself. The point was the weirdly broken business model.

you said you don't file-share box-office movies or music then say you downloaded an NZ band specifically The Terminals album and from people you could easily contact if you needed to.

Should I really have to write to every band I think might be good? I heard about that album and tried to find it on every download service I could think of, including Amplifier (they're on a tiny American label). I tried at Real Groovy. And then I bought it at first opportunity. I'm not sure that makes me the bad guy.

But what's you personal stance, Rob, in light of your own admitted copyright infringements? This argument quickly becomes pointless. Do you think all the people who argued against format-shifting actually don't copy music to their iPods?

Once again, reasonable people can disagree -- and argue on the radio -- about this. Gotcha isn't really an argument.

Posted at 9:34PM on 19 Feb 09. Permalink.

System copies indiscriminately

Posted at 9:40PM on 19 Feb 09. Permalink.

Dodgy hotel wi-fi.

Posted at 9:41PM on 19 Feb 09. Permalink.

Whereas I have no excuse..

Posted at 9:43PM on 19 Feb 09. Permalink.

But my experience of the man (and it's extensive) is that he's brutally honest and I'd be surprised if deviously tossing another bogeyman into the mix is in character. He speaks his mind.

In which case, to echo Russell, he is out of touch. Nothing wrong with that but let's kick that particular claim to touch.

Again, regarding the issue of 'the' CoP. There can be no such thing. Given the broad definition of ISPs one CoP cannot and does not cover all businesses. To suggest that this is the only remaining issue is pure fantasy.

We have developed our own CoP that is very different to the TCF one and I would imagine others will have to do the same. Not sure how these will manage the hairy ethics of cutting off peoples' IP phone systems though.

Finally I will once again point out that I personally, like many others in IT, have interests in large portfolios of copyrighted works. To suggest that we somehow don't care about the issue or don't understand about enforcement is a gross error.

We do. More than most, mainly because we see some of the wider side effects of the current swag of enforcement proposals (whether S92, DRM or DMCA). They are not good for progress and they are not effective for artists and they are not good for healthy, free societies.

Posted at 9:43PM on 19 Feb 09. Permalink.

More Herald after today's petition handover, interestingly carrying no byline.

Posted at 9:48PM on 19 Feb 09. Permalink.

The EFF chimes in with a very accurate and incisive piece (ta Juha):

"Repeat infringer" in the DMCA is a term that was not defined in the law itself, and remains contentious here in the United States. Legal experts like David Nimmer have argued that "repeat infringer" means what it says: someone who has been repeatedly shown in court to have infringed, not simply accused of multiple infringement by rightsholders.

There's certainly no universal acceptance in the home of the DMCA that rightsholders can force ISPs to throw US subscribers offline simply because they've been on the receiving end of (often inaccurate) notices by those same rightsholders.

Posted at 9:49PM on 19 Feb 09. Permalink.

So it looks like the cost of piracy to the music industry is far higher than has been estimated:

the total cost to the music industry was $11,440,939,650,000!

At this stage an honourable man would withdraw and apologise.

Calculations are here (if you refuse to take my word for it):

http://donnysblog.com/one-month-of-torrents-is-worth-more-than-the-gdp-of-france-riaa-rant.php

Posted at 9:52PM on 19 Feb 09. Permalink.

Great post Simon. I agree completely.

Posted at 9:52PM on 19 Feb 09. Permalink.

That analysis was 2006, and I am ashamed to say, it looks as though file sharers, not bankers, are responsible for the financial crisis.

Posted at 10:00PM on 19 Feb 09. Permalink.

Simon Grigg - nice post on your site. Now what you write *is* educational. To me at least.

Posted at 10:01PM on 19 Feb 09. Permalink.

That must be where Arthur's "80%" comes from...

Posted at 10:02PM on 19 Feb 09. Permalink.

But my experience of the man (and it's extensive) is that he's brutally honest and I'd be surprised if deviously tossing another bogeyman into the mix is in character. He speaks his mind.

Also, he's a hard-nosed lawyer. That's fine. He'd have gone wild if he'd had a client on the other side of the argument.

I had actually only called in to point out that Key's claims that (a) National opposed the provision, then (b) They only supported it because that was the advice from officials were both demonstrably untrue. Had I been planning a debate I wouldn't have been driving a car.

Posted at 10:04PM on 19 Feb 09. Permalink.

A lawyer who was a bit rough on an interlocutor? I've never heard of that being a discouraged habit. Just because Graeme has good manners doesn't make it an industry standard.

Posted at 10:05PM on 19 Feb 09. Permalink.

In which case, to echo Russell, he is out of touch. Nothing wrong with that but let's kick that particular claim to touch.

I don't know that either way. I value Russell's input and contacts on this, but to be honest, I'm also aware of Chris' network, which is equally deep. I think it's a matter of we really don't know rather than kicking anything into touch.

But that said, I do think that Chris' early comments were ill advised and I'd be surprised if he didn't concur. He ain't a dummy or close to out out of touch.

Great post Simon. I agree completely.

Ta, mate.

Posted at 10:08PM on 19 Feb 09. Permalink.

Me too on your post, Simon.

The funny thing is that I'm going to stand up tomorrow morning in front of a hall full of webby people and say, don't write these music people off and don't be polarised. I'm quite clear on the principles behind my stance on this issue and I'm not going to personalise it.

Posted at 10:19PM on 19 Feb 09. Permalink.

Cheers, Don, RB

Posted at 10:26PM on 19 Feb 09. Permalink.

I value Russell's input and contacts on this

Not just Russell's, I assure you.

I am not saying the TCF members aren't lobbying. Of course they are. But they and many of us taking a traditional advocacy and political route have been spectacularly unsuccessful over a period of at least 24 months in getting any movement on this legislation.

The change in political interest it is largely due to the CFF efforts in getting the issue noticed by a wider audience.

Posted at 10:35PM on 19 Feb 09. Permalink.

The change in political interest it is largely due to the CFF efforts in getting the issue noticed by a wider audience.

either way it's welcome.

The funny thing is that I'm going to stand up tomorrow morning in front of a hall full of webby people and say, don't write these music people off and don't be polarised.

The thing is. many of these so called industry stalwarts quietly agree with your position but are tethered by corporate policy dictated from afar. And that policy of course dictates RIANZ's stance. They are paid (very well) to argue a certain way. I doubt many folks at Universal listen to Hip Hop Hits Vol 23 but they'll swear to you it's all pure genius.

And I think that, as Samuel Scott is evidence, the support for S92(A) amongst musicians is at the very best mixed. Mikey was having trouble agreeing with Chris in that sound clip.