Hard News by Russell Brown


Inimical to the public good

At the end of the recent TVNZ 7 Internet debate, I concluded the discussion by thanking all of the MPs present for their support of important initiatives in e-government. We tend to take for granted the transparency of government, the improved access to services and the enhancement of citizenship the public embrace of the internet has brought in the past decade.

It is not going too far to say that the continuing progress of the internet's role in the public sphere goes right to the heart of what is to be a citizen. Want to know if you're registered to vote? Click here.

And that's what's so wrong about Section 92A of the Copyright (New Technologies) Amendment Act. It potentially allows that crucial part of citizenship to removed from an individual without anything like the oversight or due process such a step implies.

The section requires ISPs to have a "reasonable" plan to cut off the internet access of customers who repeatedly infringe copyright: in practice that means cutting off a customer who has been the subject of three allegations of using their internet connection to infringe copyright.

[NB: It has been pointed to to me that the "three strikes" benchmark is solely an assumption based on the practice in other jurisdictions, so don't take it to the bank. This does, of course, underline the vagueness of the law as it stands.]

Yes, that's right: infringement need not be proven. And ISPs, who have no competence and don't want the job, are placed in the position of adjudicating over the merits of copyright claims. They'll cave and move on.

And, as Boing Boing's Cory Doctorow pointed out in a commentary on a similar initiative in Britain, the claims don't even have to have merit -- three false allegations, which cost nothing to make, will do nicely. France embarked on a similar course last November, to the applause of the IFPI.

It takes no great effort to see the potential for abuse. America's DMCA law has often been used to chill inconvenient speech -- it's much easier to allege that an online consumer campaign is using your brand without permission and have it taken down than to take action against the speech itself. 92A offers the opportunity to not take down the criticism but the critic himself.

Unintended consequences? Let's say there's a household where a teenager is persistently downloading copyrighted music without permission. The connection gets cut off. Mum can't get to important public health or educational material online, harming the interests of other children in the house.

Or perhaps Johnny Downloader just skips to another ISP. What then? The British government is considering establishing a shared register of people who should be denied internet access. In 2008, is that just, or even sane?

It's absurd to suggest that the Copyright Amendment needs Section 92A. It's been in and out through the course of the bill -- the select committee removed it and it was re-inserted for the final reading of the bill, which was voted for by most of the Parliamentary parties.

Indeed, I'm told that Judith Tizard was prepared to take it out again (or at least discuss doing so) before relations with the geek lobby collapsed. The collapse was covered in Colin Jackson's blog.

It was pointed out to the minister that it is difficult for ISPs to tell what their customers are doing. Mere evidence that file-sharing ports are in use isn't enough. BitTorrent is frequently and legitimately used to distribute Linux and other open-source software. My son's installation of World of Warcraft uses an embedded BitTorrent client to download (and upload) its updates.

Difficult, of course, is not the same as impossible. The minister noted that traffic in child pornography can be tracked. There are two answers to this: one is that handling child pornography and downloading the latest episode of 'Heroes' shouldn't even be mentioned in the same sentence. The other is that a dedicated team at Internal Affairs, with real investigative powers, does little else but track the traffic of such material. And a third is that even kiddy-porn users get to go to court.

I do understand the copyright owners' point of view here. I know that those rights are, literally, their livelihood. I do think some people in the IT community are cavalier about those rights, and prone to making seriously imperfect comparisons between software and artistic works. I know that the cost of civil action in support of claims may be more than those claims are worth. I know that there is strong international lobbying behind what happens locally, and that that lobbying places pressure on governments too.

But as they have done through the progress of this bill, copyright interests have been too willing to place their commercial interests above the public good. Section 92A is inimical to the public good.

To be honest, this frustrates the hell out of me. Thanks to David Cunliffe, the implementation of this troublesome section has been delayed until February 28. The warring parties here need to lower their shields in that time and start talking again. ISPs actually don't want large-scale copyright abuse taking place on their networks. I can't understand why there can't be an accord, without the need of legal force, to take action, especially in the case of New Zealand content. Because to put in place the force of law in such a way is virtually to invite consequences that are not only unintended, but frankly undesirable.

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