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The broken Section 92A of the New Zealand copyright law

By Mauricio Freitas, in , posted: 11-Oct-2008 13:34

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)

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Mauricio Freitas
New Zealand

I live in New Zealand and my interests include mobile devices, good books, movies and food of course! 

I'm the Geekzone admin. On Geekzone we publish news, reviews and articles on technology topics. The site also has some busy forums. Also worth visiting is TravelTalk NZ, a community for travelers!

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