Posts by Rick Shera

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  • Hard News: Quantum Faster,

    There are significant regulatory issues and even greater tax ones with Telecom disposing of Chorus (as adverted to by Telecom itself in its alternative opsep submission around para 109 (note this is a link to a large-ish pdf).

    Seems to me therefore that Telecom either needs to dispose of its retail piece or will not be able to play in this new sandpit ... unless of course its operational separation undertakings are to be amended (see para 113 of the Government paper) or the prohibition on being a retailer drafted in such a way that opsep of Chorus and Telecom retail is sufficient.

    On that note, ensuring separation of the wholesale and retail businesses sounds like the anti cross involvement provisions that apply in the electricity industry. These focus on both ownership (10% limit) AND "material influence" so, if the same rules were to be applied to Telecom, op sep would not be sufficient.

    Assuming that, then the only way to "integrate" Telecom into this new mix is for the LFC's to come to commercial arrangements for access to Telecom's existing and new networks. Those will be interesting discussions.

    Final point Russell, whilst you are right that "peering" is not mentioned, I assume that this is what the paper means when it talks of "interconnection at neutral points of presence".

    Auckland • Since Feb 2008 • 25 posts Report Reply

  • Legal Beagle: Asserting ancient rights,

    This may now be a defunct thread but I though I'd just make a few comments:

    1. Your starting point Graeme re the lack of constitutional due process with the "suspension" of s92A should not surprise anyone. I think we would all be hard pressed to recall a more illegitimate gestation of any law since Muldoon's time. Submissions to Select Committee substantially against s92A, MED officials say it is not required, Select Committee takes it out, SOP, unannounced, puts it back a week before Act passed (and at same time takes out penalties for false or misleading s92C notices ... by SOP?!), Tizard says that Cabinet policy always trumps Select Committee and everyone should have known that, original Gazette notice is mucked up, then two delays and the suspension announcement which also seeks to make the passing of a law conditional on an agreement between two non-representative private bodies.

    2. Re the s92C vs s92A issue, one result of the ill-considered rebirth of s92A is that, effectively, the guilt by accusation which is implicit in s92C also flows inexorably into s92A. So, if someone posts twenty (or whatever number=repeat) allegedly infringing posts on an ISP hosted website, the ISP may get a separate s92C takedown notice for each of them, decide it has "reason to believe" an infringement is taking place, and therefore remove those posts. Each of those takedowns is effectively an acceptance of infringement by the ISP, so, at some stage, if the person keeps posting allegedly infringing works (which of course they may well do if they dispute that they are infringing), under s92A, the ISP will need to terminate their internet account. That is why the TCF code uses the words "reason to believe", in an attempt (as futile as it may be) to introduce consistency into the mess which is the whole of s92.

    3. To answer someone's question, as Mark H says, no, s92C does not have a counter-notice procedure (and so is worse than the US DMCA - as I have said here). Again, in an attempt to at least add some degree of fairness, the TCF code borrows heavily from the DMCA counter-notice procedure in the US.

    Auckland • Since Feb 2008 • 25 posts Report Reply

  • Hard News: The Public Bad,

    dammit beaten by Sacha of all people ;-)

    But, that's right - as per an earlier post, 34 film and TV companies are suing iiNet in Australia for "authorising" p2p users to infringe using its services, on the basis that it did not terminate them in response to multiple allegations (which iiNet referred to the Police).

    Auckland • Since Feb 2008 • 25 posts Report Reply

  • Hard News: The Public Bad,

    @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).

    Auckland • Since Feb 2008 • 25 posts Report Reply

  • Discussion: On Copyright,

    Geez (and not that is not a reference to you Mark), I dropped in here a few days ago and thought to myself, I must find time to dive in - but where to start? ... and of course IAAL so that makes me a RIAA stooge by the look of it ;-)

    I'm not hearing people say that copyright is dead or should be axed. More that:

    - It is being used as a tool to protect outdated business models (which, even when built had very little to do with rewarding or encouraging creativity or innovation);

    - It is being tied to all sorts of non-IP related bargains (FTA, ACTA et al). Supporters of this tie-up seem to believe that stultifying copyright protection is justified not on the basis of its own inherent public benefit but rather on the basis that as a bargaining chip it is worth it. How else does one explain support for measures such as TPMs, notice and takedown, repeat infringer termination etc all of which can be detrimental to rights that we though we all had;

    - The monopoly that it provides is being extended in all directions (mickey mouse ain't getting any younger);

    - Because copying digital material produces a "new original" and approaches being free, the traditional purpose of copyright, like that of diamond cartels - creating scarcity so that an economic model can be applied - starts to break down. The traditional copyright owners' response (and here I am not talking about authors generally but the owners to whom they have assigned copyright), is both to ask for stronger protection and to ask people like me to issue cease and desist letters.

    - The other response is to recreate scarcity by requiring ISPs (and anyone else who might conceivably have anything to do with making it available), to throttle the conduits via which allegedly infringing material is transmitted or hosted.

    And so we end up with laws that many people do not respect, least of all the under 10 year olds who are its supposed inheritors (older bit-torrenting generations perhaps being lost causes).

    Laws like section 92A which we have managed to have delayed but which will come into force no matter what apparently on 29 Feb 09. S92A effectively requires ISPs (which includes schools, libraries, universities, businesses as well as the more traditional ISP) to terminate completely users' internet access on the basis of a few unproven ... ahem ... cease and desist notices. There are so many things wrong with this regime it is hard to know where to start.

    Laws like our new format shifting exception, which will allow format shifting of music between devices but not films (MED decided that this was not common enough so no need to cater for it).

    etc etc

    One of the real ironies in this international copyright struggle is that we are told by US interests that any relaxation of copyright is anathema and will put NZ out of step. And yet, in the US, users benefit from a fair use doctrine founded on constitutionally enshrined free speech rights. Even then, Stallman/Lessig et al argue that fair use is not enough!

    Perhaps then, an expanded overriding fair use exception is something for us to consider. Don't throw copyright out, just provide for more flexible boundary setting.

    Auckland • Since Feb 2008 • 25 posts Report Reply

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