If someone thinks an ISP’s process is not appropriate, then the burden of proof is with a plaintiff to prove the process is inappropriate, and the courts are well used to deciding on matters of reasonableness.

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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Hi folks, Matthew from the Creative Freedom Foundation here…

“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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92A required the ISP to have a process, and if an ISP follows that process then they are compliant with the requirements of law, and thus it is difficult to see how a case could be brought: their defense would be they are doing what the law requires. 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.

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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dbuckley, two points:

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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Are you sure about that dbuckley? I was under the impression that you would not be able to reconnect through said ISP…

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What Metiria has failed to notice is that the 92A provisions as written shielded end users from the agressive actions of rights holders. And it shielded ISPs. All ISPs had to do to get the benefit of protection was to terminate the account that was infringing. There’s nothing that said an account couldn’t be terminated by an ISP on Thursday and a new account be signed up for on Friday.

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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If that. Copyright holders need to pick up the pace and provide content online, internationally. TVNZ are doing the right thing with Ondemand. You watch a brief ad and you gain access to all of their content, which is magnificent! This approach now needs to apply to movies as well and other content. It has been generally accepted that the best way to beat piracy is to offer a better service. Once copyright holders get on board and figure this out, we will all be better for it.

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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