Hard News by Russell Brown

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Hard News: Inimical to the public good

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  • Mark Harris,

    For you to view information on your screen, it has to have got into your computer-box somehow.

    If that somehow was over the internets, it's "downloading"

    The act does provide some leeway for transient copies, which is mainly to protect ISPs and other servers en route - I'm unsure whether the copy in your cache file would be considered non-transient.

    However, it all would depend on the whether the material you're looking at could be considered copyright. Much is not.

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Idiot Savant,

    Is there any major obstacle to it in principle?

    The cost to the recording industry will still outweigh the cost of infriongement?

    (Which suggests that enforcement is not financially worthwhile and they should just give up...)

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Matthew Poole,

    The cost to the recording industry will still outweigh the cost of infriongement?

    Only if they're unable to use carpet-bombed infringement notices, and ready-made settlements. As soon as return is vaguely related to cost-of-enforcement, it becomes a losing proposition.

    I realise that we don't have the same kind of bullshit going on here as goes on in the US, but that doesn't mean it couldn't happen. Our copyright legislation is very similar to theirs, and if we're unfortunate enough to have National negotiating an FTA between us and the US it'll become even more similar.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • 3410,

    I'm not seeing how that is any more problematic than if its not the case.

    Well, for one thing, you don't know if a vid contains infringing material until after you've seen ("downloaded") it. The same argument doesn't quite hold for torrents, etc.

    The act does provide some leeway for transient copies, which is mainly to protect ISPs and other servers en route - I'm unsure whether the copy in your cache file would be considered non-transient.

    So am I; that's why I ask. Can someone point us to the relevant wording?

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Clarke,

    So here's my hack on this dopey piece of legislation.

    I have a fibre connection at home (thanks, CityLink!) with a static IP address, and I maintain a mail and web server down in the garage. So I'm going to declare myself an ISP - as far as I can tell, there's nothing special I need to do in the legislation (correct me if I'm wrong) in order to qualify as an ISP. This should effectively give me safe harbour.

    I'm then going to write a policy document - copy posted on the website, natch - that explains all copyright breach allegations will be "taken seriously and investigated with rigor", or something like that.

    I'll then continue to work Teh Internets the same as usual.

    If someone then complains about any of my downloads, I'll "seriously and rigorously" investigate the complaint, and publish a report which - in its short-form version - will largely say "blow me".

    Should work.

    Wellington • Since Nov 2006 • 85 posts Report Reply

  • James Harton,

    @Clarke: You missed the bit about "reasonable process" :)

    Auckland • Since Nov 2007 • 51 posts Report Reply

  • Kyle Matthews,

    Can we pursue discussion on the idea here? Is there any major obstacle to it in principle?

    I think the technicalities might be too much for a disputes type tribunal. Many of the cases that come before a tribunal, the facts are not disputed, it's the outcome that is disputed. Goods were purchased, they weren't exactly as advertised or didn't last, how should it now be resolved?

    For one thing, a copyright holder might need to get information from a third party (isp) about the extent of any breach - how long, how much, how many times etc. These are disputed facts.

    And then what is the value/lost income of that breach? There would need to be some guidelines, either in the law, or set by a court.

    Since Nov 2006 • 6243 posts Report Reply

  • James Harton,

    For one thing, a copyright holder might need to get information from a third party (isp) about the extent of any breach - how long, how much, how many times etc.

    Under current law, these would be a breach of privacy. My understanding of S92A suggests that the ISP may terminate the access but is under no compulsion to release any other data to the copyright holder other than; "it's done".
    As Matt outlined earlier, the only times ISPs will give out customer information (just like your dentist, your lawyer, your milkman, your plumber) is when presented with a valid search warrant. Unless there is some radical changes to law, I don't see copyright holders being able to apply for search warrants.

    Auckland • Since Nov 2007 • 51 posts Report Reply

  • Kyle Matthews,

    Under current law, these would be a breach of privacy. My understanding of S92A suggests that the ISP may terminate the access but is under no compulsion to release any other data to the copyright holder other than; "it's done".

    Yup. But for it to be a process in which, at very least, some evidence is provided of breach of copyright, that would have to come from the ISP. Otherwise everyone would just say "nah, I didn't" and it would go nowhere.

    Since Nov 2006 • 6243 posts Report Reply

  • Michael Homer,

    Well, for one thing, you don't know if a vid contains infringing material until after you've seen ("downloaded") it. The same argument doesn't quite hold for torrents, etc.

    Why not? You can't possibly know what's in anything until you've downloaded it already, by which time you've already infringed. There's no difference between downloading from Youtube and downloading anything else that I can see.

    Wellington • Since Nov 2006 • 82 posts Report Reply

  • James Harton,

    Yup. But for it to be a process in which, at very least, some evidence is provided of breach of copyright, that would have to come from the ISP. Otherwise everyone would just say "nah, I didn't" and it would go nowhere.

    Not true. The US example is that copyright holders have bots that automatically trawl p2p networks and video sharing sites, etc looking for evidence of copyright infringement. They then send a C&D to the network provider saying "this IP address, this time, this file, this protocol" and the provider does the leg work of identifying you.

    Auckland • Since Nov 2007 • 51 posts Report Reply

  • Mark Harris,

    So am I; that's why I ask. Can someone point us to the relevant wording?

    Try sections 43Aand 175A - it would appear to me that your covered, unless you accessed the material knowing it was a breach of copyright to do so. But IANAL

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Russell Brown,

    Try sections 43Aand 175A - it would appear to me that your covered, unless you accessed the material knowing it was a breach of copyright to do so. But IANAL

    From The minister's speech at the third reading:

    The bill clarifies the liability of Internet service providers—ISPs—when it comes to copyright infringement. It introduces a limited exception from copyright infringement where the Internet service provider merely provides the physical facilities to enable a communication to take place. Transient or incidental copies that are made by a computer or a communications process as part of the integral and necessary processes by which, for example, users browse websites on the Internet is not infringing copyright.

    I think you could argue that watching an embedded YouTube video is part of normal web browsing. And if watching an embedded clip isn't infringing, it would be odd if it was any different on YouTube itself.

    Also, because YouTube always acts with dispatch to take down material under the DMCA -- or, as is increasingly the case, offers the claimant a slice of adjacent advertising revenue -- it could certainly be argued that there is no copyright claim on anything you can see on YouTube.

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • Russell Brown,

    BTW, I frequently use Firefox add-ons to grab website video for review purposes in the context of Media7.

    The use is explicitly permitted -- I just have to hope I'm not circumventing a TPM to get there ...

    Auckland • Since Nov 2006 • 22749 posts Report Reply

  • Kyle Matthews,

    They then send a C&D to the network provider saying "this IP address, this time, this file, this protocol" and the provider does the leg work of identifying you.

    But if it was for some sort of disputes tribunal, which is what people were suggesting, the ISP would have to provide that information to the tribunal, under some sort of process.

    Since Nov 2006 • 6243 posts Report Reply

  • James Harton,

    You're right. But I think it would be to the tribunal, and not to the copyright owner.

    Auckland • Since Nov 2007 • 51 posts Report Reply

  • Stuart Coats,

    I do wish I could get some of the music/copyright people into these discussions.

    I used to manage a small record company so maybe I can help, although I make no claim to this being a definitive answer!
    As has been pointed out previously the record company holds the copyright in the recording, not the work itself. I used to work for a classical label, which makes the differentiation easier to follow. If we record a work by Mozart this does not give us the copyright to that work. All it does is give us the copyright to that recording of the Mozart.
    In the case of new works, we would negotiate with the copyright holder of the work, which in most cases is the composer. We would then negotitate a fee for the use of that work in the recording. This fee can be a straight one-off payment, or it can be a percentage of royalties from the sale of the recording. Under this scenario the record company cannot stop the composer performing the work under copyright grounds, or even allowing the work to be recorded by another company. However, in most recording contracts there will be a clause to stop a multitude of recordings happening. In the "pop" world this will take the form of an artist being signed to a record label - the label then has the right to all of artists recordings made during the term of the contract. This is why you often see compilations made of artists work without their agreement (the latest Radiohead compilation is an attempt by EMI to cash in on their copyrights and it's out there even though Radiohead don't want it to be, and there are lots more examples of this.)
    The obvious thing to state here is that record labels hate illegal dowloads of recordings because recordings are their income stream. Artists are often a little less concerned because often their income from recordings can only be a small part of their income (playing live is a much quicker way to make money) and the more people have heard your music the more likely they are to come to your gigs. One notable classical music composer in New Zealand sees recording solely as a promotional tool.

    Wellington • Since Nov 2006 • 192 posts Report Reply

  • 3410,

    Thanks, Mark. IANAL either, but I think I disagree.

    **175A Transient reproduction of recording of performance**
    A reproduction of a recording of a performance of a work does not infringe the rights conferred by this Part in the recording if the reproduction—
    “(a) is transient or incidental; and
    “(b) is a necessary part of a technological process for the viewing of, or listening to, the recording by a member of the public to whom the recording is lawfully made available; and
    “(c) has no independent economic significance.”

    Therefore, if the content is not "lawfully made available" to the viewer, the viewer will have committed an infringement.

    If the content contains infringing material, such as, presumably, does this one, for example, then you will be comitting an infringement by viewing it.

    Have I got this wrong?

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • 3410,

    Jeez, you gotta be quick 'round here.

    Also, because YouTube always acts with dispatch to take down material under the DMCA -- or, as is increasingly the case, offers the claimant a slice of adjacent advertising revenue -- it could certainly be argued that there is no copyright claim on anything you can see on YouTube.

    That's stretching it a bit, don't you think?

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • FletcherB,

    3410... I just tried to watch your this one

    It came up saying there was a malformed video ID... so either you embedded it wrong, or they already took it down :)

    West Auckland • Since Nov 2006 • 887 posts Report Reply

  • John Quinn,

    I don't think the UofA is going to have much of a problem. Using one of it's PC's yesterday, I was blocked from even going to one of it's internal sites indicated by the main page! And when you tried to reach sites recommended by computer magazines, the curtains really fell down.

    Auckland • Since Nov 2006 • 15 posts Report Reply

  • 3410,

    I linked wrong, but it could've been any of millions. Like it or not, there are an enormous amount of YouTube vids where the poster is clearly not the copyright holder.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Craig Ranapia,

    I don't mean this sound like Ian Wishart/Nicky Hager territory, but wouldn't it be interesting to see who has been lobbying the relevant ministers and spokespeople most energetically, and whether interested parties have been donating to political parties this cycle?

    Jus' saying folks... I know copyright/intellectual property law is fiendishly complicated, and perhaps we've got to reconcile ourselves to the reality that legislation is always going to be two steps behind the stampede of progress. But I don't think I'm the only person who can't understand what sane person would let 92A out of the first draft alive.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Graeme Edgeler,

    BTW, I frequently use Firefox add-ons to grab website video for review purposes in the context of Media7.

    Having just changed computers, I was reinstalling a bunch of the free programs I use, and downloading the latest versions of stuff. Real Player does this now!

    And I was using savetube...

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • mark kneebone,

    Hi there, long time listener and first time caller

    My name is Mark Kneebone and I am chairman of Independent Music NZ (earlier referred to in this thread by Simon). I also run a record label and a music marketing company in Auckland and between the two companies we represent around 70 local and international artists and employ four fulltime staff

    I usually stay off threads but have been following this one with interest all day and I just wanted to say a couple of things

    The local music industry does not want to penalise our fans and consumers; this is ridiculous and Metallica taught us nicely with Napster that it doesn’t work and is counterproductive. People who love music and are passionate about NZ bands are in short supply (although growing every year) and the more of them we embrace rather than isolate the better. That said we also base our business on obtaining and selling these artists copyrights in forms such as CD’s, legal downloads etc.

    The internet has been the best and worse thing to ever happen to the NZ music industry. It’s great because you can talk to people directly without dealing without media companies trying to sell cans of Pepsi around your art. It has been in a disaster for reasons that can only really be blamed on the record industry itself. We had a chance to license Napster in 2001 and we choose to prosecute instead, we failed to embrace new trends in downloading and how people wanted to consume music and mainly we tried to dictate to music fans instead of listening to them. There isn’t a level headed person in the music industry who wouldn’t agree with this to some extent. But the need remains that if people are going to invest in these artists (including the artists themselves) they need to have a return on it.

    ISP’s provide pipes for people to access the Internet; people choose to illegally take property that doesn’t belong to them and then ISP’s disconnect them for doing illegal things on their networks. Now the how and the why is not perfect, to be honest we (IMNZ) wanted more, the ISP’s wanted less, and the first meeting between the two too sort this out was held this morning. What I haven’t heard from anyone on this thread is a suggestion of how you balance fair use of the Internet with the rights of people who are having their property stolen using it. So please if you have a suggestion I am all ears.

    I personally believe that if you are going to sell a service (broadband) then you have a responsibility to make sure it is used legally and fairly. Russell’s original comment that ISP’s shouldn’t cut connections because a mother might be penalised due to the actions of her son makes no sense, it likes saying that if the same son went out and used his mothers car to speed around the neighbourhood then he shouldn’t be punished in some form (including losing the car) because the mother might need it to take the sister to the hospital

    In terms of Independent Labels in NZ we are trying to find a pragmatic balance to this problem, so like I said if you have any ideas I’d love to hear them

    And the IMNZ has never contacted anything to any political party. But if you want to donate to the local music industry, please feel free to buy the new album from Cut Off Your Hands which came out last week or wait another week for the new Cobra Kahn, which is equally wicked

    Since Oct 2008 • 11 posts Report Reply

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