The broken Section 92A of the New Zealand copyright law
One the biggest technology issues we are facing in New Zealand is the topic of copyright, specifically the new Section 92A of the New Zealand Copyright Law:
...[Section 92A] says that ISPs have to cut people off the Internet if a music company accuses them of copyright infringement. There’s no trial, no proof, and no accountability on the record companies to get it right. This provision was inserted into the Bill by the government after the Select Committee had told it to do the opposite and then passed by a large majority in the House.
This wrong in so many ways... No proof, no trial, no accountability. Any company representing a "copyright holder" can unload thousands of those letters and ISPs would have to cut the service to their customers.
Then, just this week, as reported by Colin Jackson, Hon David Cunliffe (Minister Technology and Communications) and Hon Judith Tizard (Associate Minister of Commerce) met with IT people here in Wellington:
When it opened, Judith Tizard spent 30 minutes telling us why the change had to be made. She began by strongly expressing her anger that we had complained to her at this stage in the proceedings. None of us, she said, had been to see her before this on this topic. When we protested that we had worked with the Select Committee, which had removed this provision - and balanced it with one which made licence holders liable for false accusations - she said that this was completely inappropriate of the Select Committee, because Cabinet had already decided this was going ahead. We should not have been surprised, we were told, that this provision was reinserted by the government at the last minute before the bill was passed.
Back in September 2008 InternetNZ, the organisation that manager the Internet space in the country issued a press release saying:
“A deeply flawed law that undermines fundamental rights and simply will not work.” That is what the telecommunications industry, internet service providers, user groups, internet advocates and IT professionals think of parts of the recently passed Copyright (New Technologies) Amendment Act.
Section 92A, when it is brought into force, will require ISPs to “reasonably implement” a policy to disconnect ”in appropriate circumstances” the internet services of users who have repeatedly downloaded or uploaded infringing music, movies, games and other copyright material.
“The Act gives no guidance on what ‘reasonably implement’ or ‘in appropriate circumstances’ mean,” Mr Chivers said. “This leaves the door wide open to those who seek disconnection of an alleged repeat infringer based on flimsy evidence, or worse, allegations alone.”
Why, would you ask, is it so important to consider one's Internet connection? We had a very good discussion on Geekzone about this topic. Basically more people are using the Internet today for their remote work, home business, even telephony using VoIP services such as 2Talk, iTalk, VFX.
What happens to these people if a notice is sent and their ISP simply cut their Internet service?
Businesses stop. Communications stop. People won't be able to do basic things such as calling Emergency Services.
Fair enoug though, if there's evidence. But who will investigate the notices? Who will determine if an accused is guilt or innocent?
As Brenda writes in her blog about this topic:
You don't get a trial, you're just cut off and no more internet for you.
No more email, no booking airlines, no more buying books on the internet - you're cut off based only on an accusation. If they decided to accuse me, I would not be able to continue my occupation as an Open Source programmer / gadget wrangler. I'd have to give up and probably retrain as a barrista.
A few months back we started getting reports in the Geekzone forums from people being cut by their ISPs based on requests from alleged copyright holders or people representing those copyright holders.
Here is an example. The letter was sent by WorldXchange to a customer, after a notification from Lion Gate.
In another instance Paul Clarkin, WorldxChange Director Operation and Carrier, has confirmed accounts were closed due to this kind of notice.
We ran a round of Q&A with some CEOs of the major telcos around and this what a couple of them have to say about this:
6.What is your opinion on the obligations set out in the Copyright (New Technologies) Amendement Bill for ISPs over Copyright Infringement by your customers? What is TelstraClear's Policy on this?
This is an issue our legal and regulatory teams have been taking a keen interest in and it has been a hot topic in Australia too. The Bill you refer to has been passed by Parliament, but the changes have not come into force yet. These changes include imposing obligations on ISPs to terminate the accounts of customers who infringe copyright and also to remove infringing material from websites. We see significant practical challenges with this as we have no real ability to determine whether or not any given material infringes copyright. However we will put in place appropriate processes to ensure that we comply with the law, in a manner which also protects the interests of our customers.
(Dr Allan Freeth, Chief Executive Officer of TelstraClear.)
9.There has been some comments recently around the account suspension correspondence from some XNet customers. How does WorldxChange validate the party sending the cease and desist email is valid and not someone sending the email as a joke or prank? And how does WorldxChange manage customers who may dispute the email, or who have had their internet connection hijacked due to unsecure wireless, or have unsupervised minors up to no good?
Oh yes; the question that I’ve been looking forward to most. The legislature on the subject still requires clarification. Of that there is no doubt but my understanding is that if we were operating to the letter of the law, we would be required to suspend a customer on their first offence.
In reality; I fail to understand why the ISPs have been made responsible for the adjudicating the issue full stop. When a boy racer exceeds the speed limit and runs over someone, do we make it the responsibility of the Minister of Transportation or company that laid the road? No, it is between the boy racer and the courts.
In my opinion, it should be between the aggrieved party that feels that someone has stolen their property and the person accused.
That said, life is never that simple and we have an obligation to all of our customers; not just those that do not agree that media/content is as much another person or company’s property as is the TV on which you might watch it, is your property.
Xnet is not prepared to take any risks on the matter and with the low margins Internet services provide, I am certainly not willing to cop any fines because of the choices made by a few people. Our views on the matter have been outlined in several Geekzone threads and have not changed.
To the question of validating the cease and desist order. It would take a pretty elaborate prankster to be able to send the order and identify the content that the subscriber downloaded, the size of the file and exactly when they downloaded the media. The agencies that we accept reports from always identify themselves, the media/content downloaded and a time stamp with associated IP address.
I am unaware of any instances Xnet have processed invalid orders and we always give the report we receive to the subscriber affording them the opportunity to dispute it. We receive many more orders than we actually action because spam style stuff does hit us now and then.
On the issue of customers having their Internet connection “hijacked” due to un-secure wireless or unsupervised minors up to no good; ARE YOU KIDDING ME? The security of one’s wireless connection is their responsibility. We are not responsible if you leave your house unlocked or if you forget to turn on your alarm; are we? The onus for managing access and supervision of my PC and wireless connection is mine alone. Not my ISP’s. Xnet Technical Support are always glad to offer advice to secure your PC or wireless device.
Now then, all activity in relation to cease and desist email is conducted by the Technical Response managers. They are in communication with all affected subscribers and regularly give them the benefit of the doubt. We have breached the legislation on many occasions by allowing customers to carry on with the service after discussing the issues with them.
The folks who have complained on the Geekzone threads have had every opportunity to dispute and discuss their suspensions with Xnet Management prior to being suspended. They generally leave that part out of their threads.
(Cecil Alexander, WorldXchange CEO)
You can read other reactions here, here, here, here, here.
The image here (c) opensourcecinema.org.
Other related posts:
Did Twitter really take in consideration these DMCA notices?
Bill Gates changing the world
The New Zealand DIA Internet filter status
Comment by Daniel C., on 11-Oct-2008 18:27
Goodness, this is so irrational. So cutting an internet service will prevent someone from pirating music, eh? How about I take my flash drive around to a friend's place?
It shows her level of technological understanding.
Comment by chiefie, on 12-Oct-2008 10:42
I think Judith probably does all her internet browsing while using the office's connection... so she's "clean" when she's home... or she probably doesn't even have internet access at home, so to her, it is less worry to incriminate herself if she had any wrong-doing.
I seriously doubt that she know the modern technology well enough to be able to say or give her "professional" opinion into this Section 92A copyright law.
Comment by juha, on 12-Oct-2008 12:24
Somehow I don't think .govt.nz and parliament.nz domains, or {labour|national|greens|etc}.org.nz will see many infringement notices.
Comment by sbiddle, on 12-Oct-2008 13:14
How ironic that the Police are also warning of insecure wireless routers possibly being used to trade kiddi porn
http://www.stuff.co.nz/4723294a11.html
Why worry about kiddi pr0n? Somebody using your WiFi for downloading a song via P2P will find your internet chopped off with no comeback.
Comment by jpollock, on 13-Oct-2008 11:09
I see an increase in stored value credit cards being used to anonymously purchase internet access in our future.
Comment by wongtop, on 13-Oct-2008 12:19
How is this going to be workable for people operating wifi hotspots??
Comment by dave, on 18-Oct-2008 19:40
All I want to know is how exactly is this going to work? What are all the details?
Comment by bob, on 2-Dec-2008 15:01
Its about time the government learnt a lesson for themselves, they need to have all their ISP accounts stopped in all departments and same for all politions home internet connections. That would really get them onto getting it sorted promptly and hopefully so the detail is worked out and clearly understandable by anyone.
Comment by SL, on 27-Jan-2009 10:35
Daniel C,
Surely you aren't comparing sharing with a few friends via a USB key to sharing with millions of people worldwide via p2p?
Chiefie,
I've heard that workplaces will be treated as an ISP, so they will also need to have provisions in place to remove an employees internet access if they're accused.
Comment by DarkSon 1, on 31-Jan-2009 22:25
This is rediculuous. I partly blame myself - I never saw this in the near future when I voted. Putting the rights of people under, while those of lobby groups first is why the USA is in the state that its in today.
Postscript
Hey SL
I think the flash drive statement by Daniel C is to show how 'stupifyingly easy' it is to copy and access WaRez - most people would use their external HD anyway. - She's should go back to whatever ne-anderthal home(cave) she stumbled out off and make her way back....
nuf said
Comment by hutchwilco, on 2-Feb-2009 10:28
I would challenge Mr Alexander of Xnet on several points in his response. Recently I was suspended from Xnet based on an email from Lions Gate, and was never once emailed or phoned by Xnet Management (or anyone at Xnet for that matter) prior to suspension.
I also never received an email containing the allegations via Lions Gate. Suddenly one day my internet just stopped working.
If Mr Alexander is going to continue to write "smarmy" responses with a rich coating of self righteousness as he has above, perhaps he should ensure he has his facts and company policies straight first.
Comment by Jaidan B, on 13-Feb-2009 14:08
Ok, if i download copy right material and my account gets locked do i...
A. Still have to pay the rest of my 24 month contract,
B. Have to pay the early disconnection fee,
or C. no further charges and the ISP misses out?
and as previous readers have said... USB sticks, EX HDDs and Data DVDs will still share the warez its just not using a data network consisting of copper and fibre optics anymore.
Comment by Clare Curran, on 19-Feb-2009 16:55
Just for everyone's information, here's what I introduced (unsuccessfully) in the House today and here's my release. Labour takes the copyright issue very seriously and is listening and wanting to be constructive:
Despite official advice on the importance of finding a solution to the copyright issue, the National Government today missed an opportunity to take steps in that direction when it refused leave for an Amendment Bill to the Copyright Act to be introduced.
Labour spokesperson for communications and information technology Clare Curran today sought leave to introduce a Bill to amend the Act to ensure a workable code of practice was in place with the approval of the relevant Minister before Section 92A comes into force.
"Despite indications of support from most other parties, the National Party refused leave and is now sitting on its hands on the copyright issue," Curran said.
"Ministry of Economic Development senior officials in today's Commerce Select Committee said this was an issue of high priority and needed to be addressed quickly by the government," she said.
Section 92A of the Copyright Act is due to come into effect on 28 Feb. More time is required for the affected parties to negotiate the issues and reach agreement on a workable code that upholds the principles copyright protects while not placing an unreasonable burden on the internet service providers.
Labour considered a variety of measures including delaying the enactment of the clause, however, only the government can do this by revisiting the date of commencement and I call on Commerce Minister Simon Power to do so urgently.
"The Copyright (Internet Service Provider Account Termination Policy) Amendment Bill creates a mechanism for developing guidelines, something not included in the existing legislation. This Bill therefore proposed to amend section 92A to include the following clause:
"(3) A policy as required by subsection (1) must be in accordance with guidelines developed by industry groupings representing the interests of telecommunications carriers and rights holders and agreed by the responsible Minister.
"The effect of this would have ensured that the parties would have developed guidelines before the section became effective.
"I intend to submit the Bill to the ballot as a Private Member's Bill so that these issues can be addressed.
"It is in keeping with the objective of the Act which is to ensure a robust intellectual property rights system for the continuing growth of New Zealand's creative and innovative sectors.
"The wider issue of the future of copyright law in a digital age is complex and fast changing. In order for the Section 92A to be effective, a workable code of practice between the rights holders and the internet service providers must be achieved.
"There is widespread and growing support for an education campaign around the complex issue of copyright. It's time the government took action on this issue," said Curran.
Clare Curran
Comment by Hatori Magic, on 21-Feb-2009 14:03
I received an infringement notice from Xnet for allegedly downloading copyright material. Xnet advised that my account would be temporary suspended if I did not get in touch with them & on repeated notices, my internet connection will be disconnected. What I want to know from Xnet is how do they know that the download was completed before accusing me of illegal download. They went on to mention that they do with to lose a customer. Well too bad... you have lost one. I reckon my privacy has been infringed with Xnet monitoring my internet usage. If they keep sending out infringement notices to their customers without concreate proof of illegal downloads, they're going to lose more customers.
Comment by Andrew, on 23-Feb-2009 08:06
Interesting times we live in no doubt. What is going to be interesting is how they will police foreign language sites.
I foresee loads of digital rights companies trying to employ foreign speakers to add their bait to the mix in Chinese, Japanese or Russian.
So until then people it's time to learn a foreign language or adopt a non native to help you in your searches, after all babel fish offers no direct translation and "The Curious Case of Benjamin Button" in Chinese = "本傑明按鈕好奇盒 " which in English Translates Back to "Benjamin button curious box" or in Russian it would be "Любознательний случай кнопка Бенджамин" which in English is "[Lyuboznatelniy] the case is button Benjamin" note the first word has no comparative in Russian which is (curious).
So the likes of Xnet, Telstra etc will only be policing English speakers and those complaints which I loathe to tell the enforcers is only the tip of the ice berg, as no one has ever going to get a letter from any film company that says due to the downloading of "The Case is Button" which legally we don't actually own that title name, we figure you should have a ban...
Comment by M_, on 24-Feb-2009 14:39
This act even if in force will still not stop music copyright! at all
for a start i could go to youtube or anywebsite and rip an audio track using a program that records off my soundcard. there is no way in hell ISPs will know that you have done that.
also how will they determine contents of encrypted torrent files?
whether they are legal or illegal
also people will just find another way of doing what they do. some geeks will come up with a new program or encryption or method
have any laws introduced with regards to drugs for example stopped people buying selling or using illegal class A drugs etc anywhere in the world?
NO? of course not!
people will always find another way
Comment by Charlette, on 20-Mar-2009 14:58
@ Graeme - perhaps that is the solution? Someone please make an unjustifiable complaint and get the minister's internet cut off with no trial or proof and see how she feels about it then!
This has probably been suggested before, but as a freelance web designer who also runs music information websites, I'm terrified that someone could make a complaint about me and ruin my business. What can we do?
Comment by Jess, on 26-Mar-2009 04:33
LOL Don't get to worried guys...
This wont last, and if it does say hello to all torrents/music etc being compressed or zipped there wasting there time and money...
Freakn noobs!!!
Comment by jjlinux80, on 18-Dec-2009 10:40
Newsgroups, ftp etc will come back like the old days. anyway, you can go buy a 50c blank dvd and goto a video store hire it for $1 and 30 min later perfect copy for $1.50. or even cheaper if you rip to your HDD. There is always ways around things
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Comment by Graeme Reeves, on 11-Oct-2008 15:02
Hi there - I wonder how Judith Tizard will feel if her internet connection is terminated because of an unjustifable complaint?? Graeme