Hard News: The Public Bad
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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?
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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.
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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?
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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.
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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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(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.
So what constitutes a "duly authorised agent"? Is there an umbrella body here in NZ that handles copyright from overseas owners? I guess I'm wondering, say, if someone's been bittorrenting Canadian public access TV shows, who gets to slap that notice on the user?
Plus, if we're requiring that the owner of a copyright (or their agent) file the infringement notice, doesn't that put the onus on the owner to establish which copyright has been violated? As in, it's not enough for them to argue that Telstra User #1354 has logged 20GB of traffic in the past week so they're bound to be doing summat, they have to say "Hey, Telstra User #1354 has violated my copyright on episode 54 of New Zealand's Funniest Sports Accidents". Or am I missing something? Since there's no penalty for malicious accusations by the copyright holder, would the likely tactic be for them to say "Hmm, Telstra User #1354 has a shedload of traffic, they're probably up to something, let's accuse them of downloading a couple of episodes of our TV show... better safe than sorry."
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Perhaps it follows that the internet is a repeat infringer
There's an explicit exception for caching.
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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?
Who is Parliament's ISP? Heaps of copyright violations on that den of piracy...
(I'm serious. Pass a bad law, get hoist by it. And then they'd call it contempt...)
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It occurs to me that there have been a fair number of occasions where I have clicked on a link thinking it leads to a web page or some form of streamed media and am then surprised when something starts downloading. I wonder if this could potentially get one into poo?
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I sent an email to my MP. Everyone should do this. Remind them that you have a vote and keep at them.
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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).
I'd have to say that, although Tizard was fronting it as Minister, the MED officials are right in behind it and would have been the ones to write it. These are the same officials that conflate copyright infringement with terrorism, by the way.
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Hamish, I'm not really sure that works. Section 92C creates liability for ISPs who store copyrighted information. This is the section that means if I put a file of a video on my site, the ISP of the site must take it down on the basis of the allegation.
It doesn't follow in any way that consequences under s 92A should follow. Because the ISP hosting the site has taken it down, they're fine, and cannot be done for any breach themselves.
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There's an explicit exception for caching.
For ISPs, not for individual users or (possibly) corporations.
How about I put on my blog a clause to the effect that this site is copyright and freely licensed to all users, excepting the RIAA, the NZ government and their employees? Then issue takedown notices to the upstream ISPs when I see their IP pop up.
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I'd have to say that, although Tizard was fronting it as Minister, the MED officials are right in behind it and would have been the ones to write it
Officals advise, Ministers decide. She could have rejected the advice/drafting.
As could the MPs who voted for it, e.g. Peter Dunne.
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Graeme:
Section 92C creates liability for ISPs who store copyrighted information.
As was said much earlier, there is provision for caching.
It doesn't follow in any way that consequences under 92A should follow. Because the ISP hosting the site has taken it down, they're fine, and cannot be done for any breach themselves.
No, the ISP doesn't take the site down, they take you offline. This isn't about them storing illegal information, it is about accusations made against downloaders.
You asked: "So where's the bit that says they have to cut me off on the basis of accusation only?" .. so, someone complains, the ISP cuts you off to protect themselves. This is what we're talking about. No one actual charges you with anything at all.. they just accuse, the ISP is required to protect themselves from litigation so you get sinbinned.
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Graeme - AFAIK you're right that it doesn't actually say that.
For example, I think the code of practise actually has basically four uncontested accusations. I happen to think that remains draconian anyway, and since the code does not appear to be viable that may be moot.
I assume an accusation would not be the default interpretation in a court. But the law provides no mechanism for establishing the facts it refers to. It's mostly the non-judicial practises that worry me and at the moment things seem to be at the accusation side of things.
And of course, I still struggle to think of anything good about the clause.
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It doesn't follow in any way that consequences under s 92A should follow.
You're right: the process for (D) does not necesssarily apply for (A).
On the other hand, there is no process stipulated for (A), and the copyright owners have explicitly said they need this law because they can't abide with any due process. Their solution is to be allowed to adjudicate their own complaints.
But (D) and its model, the DMCA, do provide a useful pointer. ISPs and service providers like YouTube don't seek to try and adjudicate complaints of infringement. They simply take down the content. TelstraClear has said that would be its approach to 92(A) complaints: it would disconnect on complaint.
The TCF code of conduct might ameliorate that, but I'm not sure where that stands now.
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Graeme Edgeler - you could be right. Maybe we are getting worried over nothing.
On the other hand, I have spoken to lawyers representing some of the parties to the CoP, I have spoken to an IP litigator and they are of one mind on the way this law could be interpreted. If they were wrong, why would the RIANZ and their pals be trying to put exactly these terms (guilt by accusation) into the CoP?
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@Graeme E -
It doesn't follow in any way that consequences under s 92A should follow
I agree ... technically ... but the difficulty in practice is that if you don't implement s92A in a way that the recording and film industries agree with, they may well sue you as an ISP (as they are doing in Australia vs iiNet, which used to own ihug). iiNet's policy was to refer such allegations to the Police.
@ Russell B -
The TCF code of conduct might ameliorate that, but I'm not sure where that stands now
The TCF code (make submissions on it by clicking the copyright topic at [http://www.tcf.org.nz]) is a code to assist ISPs to comply with their obligations under s92A (so that they do NOT get sued as per the above). It would be good if RIANZ could accept that it is a reasonable compromise and endorse it. But, if not, unless we can get rid of s92A, ISPs need to have something so I'd go for the code (but then I am biased).
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Telecom is in the process of trying to shut down analog phone service - pretty soon now (for some value of "pretty soon") - if their plans go ahead we'll all be getting our phone service from the internet - shutting down ones internet connection will mean shutting down ones 111 service - no fire, no ambulance, no police
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(of course this is already true for those early adopters who have already moved to VOIP providers)
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Just been having a chat with a friend who is a lawyer-to-be. He believes this law is a breach of section 25 of the Bill of Rights act - you are innocent until proven guilty. He recommends that if you are writing to your local MP. ask them if they think the law breaches the Bill of Rights act and if not, why?
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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?
I must say that was my initial reaction, too.
Graeme,
you don't seem to think this is as concerning as many others here do. Can you explain how you think the law is meant to work/will likely work?
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.
Yeah, that's certainly Campbell Smith's take on it, as per your link: 'But Recording Industry Association chief executive Campbell Smith said that would not be acceptable as it would require copyright holders to sue infringers to prove their guilt. "That is just impractical and ridiculous. I don't think that is what was intended."
Instead, ISPs should cut off customers who infringed copyright after notifications from rights holders, he said.'Sounds ludicrous to me.
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See, even Campbell Smith's "just trust us" position wouldn't bother me so much if his overseas counterparts didn't have such an outrageous track record.
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