by frog
The Creative Freedom Foundation‘s internet blackout campaign is gathering steam, and very rightly seeks to pressure Cabinet into killing off the new s92a of the Copyright Act, due to come into force next week.
These are just some of the excellent banners that are going up all over the place in support of the campaign. People are also turning their Facebook, Twitter and other avatars black.
Do you think it is all right for people to be denied their internet access based solely on an accusation, without due process?
Do you think that ISPs and website owners should have to suddenly become experts in copyright law in order to defend their patch or customers from vexatious accusations?
Do you think that such a regulation is even remotely workable, or does it go against everything that this government campaigned on? The Bill was Labour’s baby, but it was supported by national and others and now they are reluctant to acknowledge and correct their mistake.
My favourite summary is by Juha over at geekzone, and it is well covered twice by Kiwiblog as well, who tries to get the Nats off the hook. The Greens and the Maori parties were the only ones to vote against this rubbish in the first place. Public address has a post with the actual section of the Act here. Why not join the fight and join the fun?
Published in Justice & Democracy | Parliament by frog on Tue, February 17th, 2009
Tags: copyright, creative freedom foundation, internet blackout, politics
on the trolls and those who are unable to keep on topic
Absolutely agree 100%
National are fools if the push this turkey through. For crying out loud – it came from Judith Tizard!
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Yes BP, and the Nats voted for it! Not that it was all crap, but s92a is utter crap and the Nats have the power of Cabinet to kill that clause smartly. Ring your Nat friends!
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They’re not my friends.
If they vote to pass idiotic legislation, I’ll say so. This is idiotic legislation.
If the Greens are voting against this, I support you.
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Idiotic legislation which unnecasarily impairs the liberties and freedoms of the populas and foils due-process with no benefit to the populas. This legislation has no place in a country not run by corporates.
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“This legislation has no place in a country not run by corporates”
could be the problem…
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Nice one frog. Hey, BluePeter, Sapient, nommopilot – great to have something we all agree on – this law is a pile of authoritarian poop (not unexpected, since it was Judith Tizard’s creation).
Suggest frogblog readers email Simon Power, who is the lead Minister on this: s.power@ministers.govt.nz
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Nommopilot,
I dont think we are there yet, but certainly getting closer. As this legislation demonstrates.
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Frog asks: “Do you think that such a regulation is even remotely workable”
As someone who has had to become pretty conversant with the Act, and the TCF response, and will have to implement something complying with this act, I think its highly “workable”. On the other hand, I’m not sure end users who get their internet chopped will be very pleased. Doesn’t mean the Act isn’t workable though.
Then its a political decision as to whether me and my other ISP type mates chopping off peoples access is politically acceptable.
The TCF proposal is both great and pain. Its great as it sets up some framework that we can all work to, and provides some of the remedy’s not in the original Act. It also works to protect account holder infomation. But the TCF framework isn’t “law” – if a copyright holder doesn’t like the framework, or like paying for complaints, or wants to sign on the dotted line that (s)he is responsible and will cover costs if wrong, then in theory one could privately prosecute an ISP (note widest use of term)
Its a pain ‘cos the TCF process is a lot more work than just chopping off people’s accounts. Theres a lot of work in there for the typical ISP, including responsibilities to deal with non-reported infringments as one becomes aware of them.
A lot of the people who I will probably end up terminating are obvious repeat violators of copyright, and so one could argue, the Act will work as it should.
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funny you should say “join in the fun” because that’s what’s happening in Sweden at the moment at the trial of the Pirate Bay as well, where the trial has become a piece of online and street theatre.
e.g.
http://torrentfreak.com/pirate-flags-free-candy-and-court-tweets-090216/
http://torrentfreak.com/follow-the-pirate-bay-trial-on-twitter-090212/
I think that the Greens could be on a vote winner with the youth here if we have a strong pro-people / anti-corporate copyright law policy, and we front up to it.
In Sweden they have a political party, The Pirate Party, that is campaigning, and hopeful, for this years euro elections. They certainly resonate with a lot of the formerly politically disinterested youth and I believe they are doing well in opinion polls.
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Did you think it was all right for people to be denied their access to their cars for a month based solely on an accusation, without due process? If you did then you can hardly bitch about the same thing happening with internet access.
Yes, I know the Greens opposed both laws and good on them.
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dbuckley
How on earth is this workable?
Person A goes to an internet cafe.
Person A downloads copyrighted material
Person A reports internet cafe
Internet cafe has service shut down
Person A turns out to be competitor A
Both accusation and case is “legitimate”
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Taking your example on face value, it is workable. Its unfair, I agree, but workable.
Fortunately, though, much of that oft quoted example is ficticious.
Internet cafe fits the definition of an ISP: it provides services for users, defined loosely as someone can make a choice about what is downloaded.
Under the TCF scheme, the complaint explicity flows downstream to the ISP nearest the infringing user. Without the TCF scheme, then the law says the user must be terminated after (and then it gets all vague, but lets ignore that as not germaine to this exact discussion), but still the requirement is to terminate the account of the user who has infringed. The internet cafe itself hasn’t infringed: a user of the internet cafe has infringed. Thus there is no ground to terminate the entire internet cafe, becuase it isn’t a user, even though it is a customer of an upstream ISP. Only users can be infringers, as only users have the ability to make a choice about what they download.
It seems to me that many people are deliberately being obtuse about what the law says, and misinterpreting its clear intent. The intent of S92 is to protect ISPs from libility, and the internet cafe example above fits entirely within that intent. Note however that the protection is not infinite; for example if a user and the internet cafe owner conspired to infringe then the protections offered to the ISP would vanish.
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Is the infringer the person who downloads a work, possibly without knowing that the copyright owner (who-ever that might turn out to be) hasn’t given permission? Or is it the person who posts the copyrighted work on the internet without permission? Or both?
If I click on a link to a web-page and that page has an image on it, my browser downloads that image and stores it on my computer – even if I don’t want it to, and before I have even learned that the image exists on that web page. Am I an infringer if that image turns out to be posted without the copyright owner’s permission?
Trevor.
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Trevor29 – As far as I know, which isn’t far, your first two assertions are correct. The third I don’t think counts. Caching can’t be a crime if an image is posted on a website. I think you have to use the copyright work without permission or appropriate atribution.
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Trevor29: The answer to all your questions is “yes”. Section 92 changes nothing in relation to the situations you describe.
The protections against libility for caching are only granted by Section 92 to ISPs, not to end users. Remeber what section 92 is entitled: “Internet service provider liability“. Thus Section 92 changes nothing in relation to cached copies elsewhere, including on a user’s browser. Strictly, it is (and always was) an infringing copy.
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”
Effectively, a single person’s bad behaviour can bring down an institution, all because certain elements of the recording, videogame and movie industries can’t solve their own piracy problems.
“Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the music, movie and gaming industries face. However, balance is the key. Protecting one person’s interests at the expense of others is completely inappropriate,” Telecommunications Carriers Forum chief executive Ralph Chivers said.
More sadly, it’s symptomatic of a technologically uneducated group of political decision makers being taken for a ride by lobbyists putting their interests ahead of the nation.
– National Business Review “
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dbuckley
Fair enough. I had considered the Cafe to be a user of the ISP – which they are – but I was aware of the clause you refer to.
Wonder how this will work in practice? How will they identify the culprit? How about if I roam for open internet connections? Can I shut down someone elses website, simply by accusing them of having copyright material? If so, why would anyone host on NZ servers?
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typo: aware = unaware
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The cybercafe isn’t a user, as “it” cannot choose what is hosted or downloaded. Only users can make those choices. The next couple of questions have no good answers.
“Can I shut down someone elses website, simply by accusing them of having copyright material?”
At its most basic, the answer would appear to be yes, if you are willing to (lie and) say you are the copyright holder.
If I could change S92, the first thing would be that copyright violation notices have to be sworn, meaning that to falsely make such a claim would be the criminal offense of perjury, and thats an offense the courts treat fairly seriously. That omission is, in my view, this legislation’s greatest failing.
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Hey I think we finally have something we all agree on.
So lets instead talk about anti-smacking laws
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Right. All this agreement is going to get very boring
Frog, ask Catherine to post another rant.
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>>At its most basic, the answer would appear to be yes, if you are willing to (lie and) say you are the copyright holder.
Do you have to sign the thing with your real name? Will the ISPs check its for real? Or will they shoot first and leave it for the courts to sort out, who will then find out that “W. Peters, Unemployed, Auckland” turned out to be a fake name?
Glad I’ve not got any of my sites hosted here. And never will under such laws.
Also, this is the great thing about the internet – it was designed to route around blockades. National and Tizard should wake up and make an effort to understand this point.
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You people always see the glass as half empty. There is an up-side.
For example, the people of Rolleston will benefit. At the moment the local exchange does not have the capacity to provide ADSL to all those who want it. Now you’ll be able to free up space in the exchange by dobbing in your more fortunate neighbours, and get connected. For a while anyway.
As I understand it, they do not need to actually download copyrighted material, so person A does not need to go to the internet cafe. More time saved.
And it gets New Zealand a lot of free publicity. http://www.stuff.co.nz/thepress/4851752a6009.html
But wait – there’s more. If you are the account holder, and are providing internet access to other members of your household, you could be deemed an “Internet Service Provider” and be required to disconnect them on accusation. Now all you nay sayers have got to admit that’s gong to make sibling rivalry a whole lot more fun.
Well – gotta go – did not like your last post, so I am off to call your ISP …
don
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lol Don
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>>internet access to other members of your household
That’ll teach our cat for all that time spent on LOLCats!
I’m on your internetz…..downloading stuff
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I’m in yr ISPs alleging yr infringements
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If I open my wireless connection, in the spirit of providing my unused bandwidth free to the local community as a service, do I become an ISP?
I suspect I do.
If so, I would have no idea who might be accessing alleged copyright material on my connection.
No idea at all
Honest guv…..
This downstream DCF clause could be rather amusing….
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“If so, I would have no idea who might be accessing alleged copyright material on my connection. ”
then you are legally required to have a process for identifying and cutting off infringing users, or face being sued by the accuser.
nice, huh? probably best not to offer anything for free as a service to the community in this world.
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“No idea at all
Honest guv…..”
will probably do you about as much good as it would in any other legal proceeding
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>>then you are legally required to have a process for identifying and cutting off infringing users, or face being sued by the accuser
Where does it say that?
Another thing.
Lets say I leave my connection open. Someone did a drive-by and just “stole” my bandwidth and used it to download stuff. Does the law state I can’t have an open wireless connection now? I must secure it? Else I’m liable? I’m the victim! Twice!
Honest guv
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“92A Internet service provider must have policy for terminating accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.”
reasonably, a process to do this would require you to identify your users…
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presumably suppliers of free wifi and such aren’t required to have registered users, so I am not sure of how this is to be dealt with in the case of libraries and starbucks etc, but a lot of free places still require you to get an account…
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>>but a lot of free places still require you to get an account…
Yes, your honour. We’ve terminated account holder “annonymousneakyuser7838763547″
s/he/it won’t be doing that again!
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“Yes, your honour. We’ve terminated account holder “annonymousneakyuser7838763547″”
that’s what I figured would be the case… the law is stupid but can it really be that stupid?
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“the law is stupid but can it really be that stupid?” has got to be a rhetorical question. Right?
Think of some of the laws still on our statute books
Trevor.
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Its really quite clear, and it baffles me how people are getting confused over the simple stuff.
Section 92A offers protection to ISPs against proceedings being taken against them for copyright infringement under a certain set of circumstances, quoted precisely by nommopilot above. No more, no less.
If you run a free access wireless access point, then you will be an ISP, as you are offering services to users. If you dont have a policy in place to manage infringing users, then the protections offered to you as an ISP by 92A do not apply. You have no protection against legal action being taken against you for the actions of your users by a copyright holder.
In addition, if you do not behave like an ISP (ie you have failed to manage your users and allow them to continue to infringe), then your upstream provider may treat you like a user, and then you risk being terminated by him following the provisions of 92A.
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This act is appalling.
I am disgusted with the NZ copyright laws and this disgraceful current extension of them.
Whatever happened to the law of contract???
How the hell is an ISP supposed to determine whether or not I have written permission to download material??
What if I (or members of my family) are downloading our own music/stories/images??? (our own creations). How could the ISP know what is legal and what is not?
This is just a complete invasion of privacy.
It is as ridiculous as the recent copyright changes that suggest that an artist should get a second payment of royalties if you onsell (at a profit) a painting you bought from them years ago.
The question of who owns what rights under the copyright laws really does need testing in this country.
Heres a good example: Years ago when CDs first came on the scene the record companies advertised that the CDs would last for ever and we would never have to replace them. Of course that was bollocks as they proved to be even more susceptible to damage than tapes were. That is why people started making their own backup copies.
Unfortunately NZ copyright law suggests that such copying is illegal. But I say that it is not illegal: The law of contract covers you making copies when it is done in order to exercise the original advertised right to play a CD forever. You bought the rights, not a cheap piece of plastic.
Internet copyright should also be subject to testing in court.
If Woosh tries to censor my downloads I will be switching.
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>>If you dont have a policy in place to manage infringing users, then the protections offered to you as an ISP by 92A do not apply.
All someone would need do is setup multiple dummy accounts, like fakeusrilovecatz38383837, and if they get pinged, they simply drop the offending account.
Or does the user account have to have a real identity linked with it? How would that identity be established? If this ISP was a library offering free wifi, would librarians need to check drivers licenses before someone used the network?
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“Its really quite clear, and it baffles me how people are getting confused over the simple stuff.”
I’m not confused. it is quite clear that the law is terrible and written by monkeys with their own excrement.
“if you do not behave like an ISP”
so in addition to this stupid law forcing ISPs to do legal work they are not qualified to do or compensated for, it forces all internet account holders to behave like an ISP. nothing weird about that…
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greengeek: “Of course that was bollocks as they proved to be even more susceptible to damage than tapes were. That is why people started making their own backup copies. Unfortunately NZ copyright law suggests that such copying is illegal”
It does? That would be news to anyone who actually knows what the Copyright Act says. I refer the honourable gentleman to Section 81A, “Copying sound recording for personal use”, which specifically permits such an action.
Nice rant, by the way.
BP: If push came to shove the dummy account scheme would be revealed as a fraud, and therefore your protections against prosecution as an ISP provided by 92A would vanish, leaving you responsible.
The latter question about photo ID, that will come out with experience, but I think that it is a realistic probability that proved identity will be required to access public internet, yep. The alternative is that content filtering (possibly using deep packet inspection) would be used to ensure that random unknown users can’t reasonably infringe copyright. In the case of a random download of something publicly available, I would expect the effort of the copyright holders will be at the place the download comes from, rather than the downloader.
The answers to many questions like this will only come out in the wash. I’m facinated to know just how many infringment complaints are going to be arriving. Reminds me of back in the 80s, when the UK Data Protection Act came into force. It, like the Privacy Act, allows folks to enquire of companies what data they hold on them. I was working for a large insurance company, with millions of customers, and we spend ages agonising over how big a department we would need to handle the enquiries. In the end, there were very few, so it was a good job we hadn’t set up a fifty person queries department, which was at one time the preferred option…
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nommopilot : “so in addition to this stupid law forcing ISPs to do legal work they are not qualified to do or compensated for, it forces all internet account holders to behave like an ISP. nothing weird about that…”
All 92A does is that it offers ISPs protection from getting prosecuted, as long as the ISP are willing to chop the accounts of repeat infringers. All an ISP has to do is to receive a complaint from an (alleged) copyright holder, make a note on the account of the user that he’s got a strike, and pass the complaint on to the user. When the pile of stikes gets too big, chop the account. Show me the legal.
The proposed TCF framework changes this, and puts the ISP right in the middle, but it does have a cost recovery model. But the TCF proposal isn’t law, and is just a proposal. And the rights owners dont like it much, if I’ve read the winds correctly.
There are a few loose ends. The first is the complaint is invalid (ie wrong end user identified as the infringer), the second is the alleged copyright owner is not actually the copyright owner (I’ve already whined about this, see above), and the third is that the use of copyrighted material is not infinging as its use is covered by an exception, eg literary criticism, section 42. All of these are arguments between the alleged copyright owner and the end user, the ISP isn’t involved. 92A has no impact on any of these circumstances: the same thing could happen today.
No-one is forced to be an ISP, but the protection against prosecution advantageous for many organisations make it sensible for them to take advantage of being a ISP. They could claim to be a user, but it would be stupid to do so, as then the risk is that a whole organisation really could get cut off. The definition of an ISP is extremely wide, and could conceivably include a dad who makes internet available for several family members. Thus the dad could claim 92A protection against actions of the daughter. A copyright owner would discover that the daughter has no assets, and so is not worth persuing. They would have liked to go after the dad, as he’s got assets like a house. But 92A protection puts him out of reach of the alleged copyright owners…
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>>If push came to shove the dummy account scheme would be revealed as a fraud
How? There will be so many instances at any one ISP, they’ll eventually twig? My example is extreme, but it could be a lot more subtle than that. A sneaky “ISP” could also spread the downloads amongst the numerous user accounts, making the downloads appear like one off incidents.
Unless the accounts are tied to verifiable id, then this is far too easy to route around.
In any case, copyright holders are fighting an unwinable war. Just ask the music industry. What they should be doing is devoting their energy to coming up with a new model that works in this environment. If they opened their eyes, there are ways they can make even more money. For example, slap a flat entertainment tax on all internet connections. Or adopt a broadcast music model (get paid based on the number of times your stuff is played). All have issues, but they could be overcome with a little thought.
Anything would be more productive than what they’re doing now: taking on bored teens, with a lot of time on their hands, who have no money.
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dbuckley, 92a may provide protection to ISPs that take advantage of that status but it does nothing to protect he interests of users *accused* of infringement. It seems pretty clear that ISPs will “cancel on allegation” to protect themselves.
What will we do when rights holders turn their “takedown bots” (that generate 1000′s of notices at once in the US) onto NZ users? Once ISPs start getting huge, auto-generated lists of IP addresses, how will any sort of appeal or mediation process be workable? (especially if the user has already been cut off, removing an important communication channel).
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Farmgeek: Now that is a really good and pertinent question.
First lets remove the inappropriate the emotive terminology. There is no “accusation” – a copyright holder is reporting that there is an infringment of his rights using an infringement notice.
Lets assume that the TCF proposal is not accepted, which is the worse case. If it is then the question is answered therein, case closed.
Assuming there is no TCF proposal acceptance, and we’re all on our own. Any sensible ISP will forward the infringement notice to the end user. If the end user believes that there is some fault with the infringement notice, then they can institute legal proceedings so a court can make a determination of fact.
The only change in the status quo is that the ISP will chop you off because of the ISP taking the report at face value. In particular, the alleged copyright holder does not have a new or easier avenue to prosecute for IP theft under S92A; that remains exactly as it is today.
If the implementation of S92A does lead to mass bad things happening there are two things I’d like the Government to do and do quickly, and those with the ear of a minister are invited to pass these on:
a) I’d like the infringment notice to be sworn under threat of perjury as I’ve already noted above. Thus the Police can take action against a lying (or negligent) complainant.
b) I’d like the Disputes Tribunal remit widened so they can hear S92 copyright cases. This would provide an easy avenue for individuals to respond to what they believe is an erroneous infringement notice.
S92A-day is getting nearer now, the speculation will end soon…
Remember here – the chances of you in particular being required to respond to an infringement noticve is low. I almost certainly weill end up processing them
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“There is no “accusation” – a copyright holder is reporting that there is an infringment of his rights using an infringement notice.”
splitting hairs, I think. this ‘report’ is an accusation. I mean we could call it a posey to make it sound nice, but it is the copyright holder claiming a crime has been perpetrated against them by a user, hence an accusation.
I think the two changes you suggest are essential, especially a).
“If the end user believes that there is some fault with the infringement notice, then they can institute legal proceedings so a court can make a determination of fact.”
If the end user believes there is some problem with them having been accused and assumed guilty of a crime, they can institute legal proceedings…
personally I’d prefer it if the time and expense of instituting legal proceedings were borne by the accuser.
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I don’t think so. The recording industry in NZ has been trumpeting for a long time that they would like to prosecute anyone who makes a CDR backup copy of a shop-bought CD they have purchased.
Their attitude is unfortunate but legally correct. Morally reprehensible, and out of step with every other country but legally correct.
The recent changes appear at first glance to have relaxed things a little, but if you read them in their entirety the new rules are actually more restrictive and seem to be heading us toward an east-european “stasi” type of regime.
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