by Metiria Turei
News that Telstra Clear has pulled out of the code of practice being drafted by the Telecommunications Carriers Forum (TCF) shows that the whole proposal for a code on the back of the draconian s92A, legislation was doomed to fail. Telstra rightly opposed the law and and have decided they can’t continue to support it, through the code of practice.
We need to return to what the select committee decided to do. That is to amend section 92A to set out a ‘notice and notice’ provision for ISP’s rather than the ‘notice and takedown’ in the current law. That is what we proposed and won in the committee. (Labour took it out. It would be great if they could admit they got it wrong.)
Nandor, in his third reading speech described the notice and notice provisions like this:
As I have said, it would work like this: if someone makes a claim to an Internet service provider that some material that it hosts breaches copyright, the Internet service provider will notify the alleged infringer.
In most cases the person would either admit guilt or just fail to respond, and in those cases the Internet service provider would simply remove or prevent access to that material.
However, a small proportion of alleged infringers would contest the claim for genuine — if debatable — reasons, and the matter could then be adjudicated in court.
We believe that this approach would provide fair protection for copyright holders while also protecting legitimate use.
It would at least allow claims to be contested in an impartial forum.
We believe that the current notice and take-down provisions do not provide any protection for fair use.
The select committee believed that approach to be the most fair and the greatest extent of the obligation on an ISP.
This is what the select committee recommended:
92C Internet service provider liability for storing infringing
material
(1) This section applies if—
(a) an Internet service provider stores material provided by a user of the service; and
(b) the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).
(2) The Internet service provider does not infringe copyright in the work by storing the material unless—
(a) the Internet service provider—
(i) knows or has reason to believe that the material infringes copyright in the work; and
(ii) does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or
(b) the user of the service who provided the material is acting on behalf of, or at the direction of, the Internet service provider.
That is the absolute most that ISP should be required to do. The proviosn requires knowledge of an infringement, not an accusation of one. If some company believes their copyright has been infringed they should take appropriate legal action against the infringer not use ISPs as their cheap bully boy.
Published in Justice & Democracy by Metiria Turei on Thu, March 12th, 2009
Tags: , copyright, ICT, internet, ISP, Nandor, S92A
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on the trolls and those who are unable to keep on topic
On that note, Norway’s television service has started providing its shows over Bittorrent (on its own service). Finally a forward thinking company!
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Again what almost everyone who whined about 92A failed to notice was it was accounts that are terminated, not users. A user can have multiple accounts.
Whatever replaces 92A will probably be worse. Folks never realise when they’ve got it good.
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Terminating the account has its own hazards, it is not just a simple thing to do. The law does not provide any adquate protection for ISPs whose user takes action against them for wrongfully terminating thier account, or more to the point, sueing ISPs for loss of earning arising out of the termination. ISPs, under the current drafting of the law would have to terminate despite having no evidence that any actual infringement took place. That makes them extremely vulnerable.
And second, why should ISP’s be required to act on an accusation when under all other forms of law, an actual breach would be required to be proved before enforcement action could be taken. This is not just about domestic or home users. Its about significant NZ businesses being attacked by accusations and having thier business put under serious risk – in the beginning of a recession – of collapse. The use of the current law as an anti competitive weapon is enormous, let alone the risk to NZ ISP’s who also risk being put out of business.
ANy other ISP who provided an account to a user who was terminated under an accusation of a breach of copyright will suffer the same consequences and will be required to take the same action. Moving the site does not protect ISPs.
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If an ISP screws up in some manner then yes, they could in theory have suit brought against them, but that is no different than the situation that exists today (or yesterday).
Of course, it is unlikely that a business (any business) would be terminated by a “proper” ISP, as the business is almost certainly an ISP under the act.
To the second point – accusations under pretty much all of the body of the law requires that an identified entity (such as a natural person or a corporation) be the object of that accusation. Section 92A targets “infringing accounts”, and as far as I am aware an account cannot be the subject of legal action. Thus conventional arguments such as accusations, “guilt” etc are not appropriate.
Thus ISPs are not “judge and jury” in any accepted sense of the term: Under 92A ISPs merely followed a process which could lead to the termination of an account. No judgement is required.
As I noted eariler, in a perverse way, users gain protections that were probably not on the mind of the Tizard when she bequeathed this thing to us: Users are effectively defended against the actions of their accounts…
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“92A required the ISP to have a process, and if an ISP follows that process then they are compliant with the requirements of law,”
That’s not right. They need to have an “appropriate” process and no one knows what “appropriate” means. No one actually knows how to obey this law.
“Of course, it is possible a court could find the process unacceptable but that would have to be considered unlikley: a compelling argument into the processes’ inadequacies would surely be required.”
I don’t think anyone can be so sure. Australian ISPs are going through court for having inappropriate policies: http://www.smh.com.au/articles/2009/02/06/1233423481609.html
“If an ISP screws up in some manner then yes, they could in theory have suit brought against them, but that is no different than the situation that exists today (or yesterday).”
The issue is that they are compelled to act by 3rd parties, or as former chair of the Copyright Tribunal Judge Harvey wrote: “The reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract.”
So that is quite a change.
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I shant comment significantly on the Aus situation; to do so would require me to understand their law and process. But, the wording in the article suggests that the situation there is that there is no specific legislation like 92A that provided a clear instruction in standards of behaviour to ISPs. My basis for this is that the ISP thinks that forwarding the complaints to the police was an appropriate course of action; under 92A that would not be appropriate in NZ.
92A didn’t “compel” ISPs to act – it provided an easy way for ISPs to limit their liability by making the choice to implement an (appropriate) process. Thats a legally large difference, even though in practice it would be a brave ISP that didn’t take advantage of 92A. If an ISP doesn’t cache, or host, then it is possible that it would not need the protections of 92A at all as it could claim to be no more than a conduit, never holding infringing material. That would appear be a similar situation to the quoted Aus news item.
I don’t disagree with your note that this is “quite a change” – it certainly is. But it looked something that was really simple to do, and had very limited downside, and as I’ve noted several times, 92A promised to shield users from the actions of copyright holders. As I’ve noted before, I fully expect whatever happens next to be much worse.
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