I’m partly to blame
February 26th, 2009 at 2:00 pm by David FarrarAdam Smith (who is a must read blog) blogs a letter to the editor, pointing out a problem with s92A:
So is this true? Is John Key regarded as an ISP by this legislation, and he also will need a policy to disconnect users if s92A comes into force?
Sadly yes, and in one sense I am partly to blame. But not really – more the incompetence of the former Minister.
The original Copyright (New Technologies and Performers’ Rights) Amendment Bill defined an ISP as
‘‘Internet service provider means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing
But the problem is that the exemption from liability for ISPs for material that their users may upload needed a wider definition. It needed to include hosting providers, and even blogs.
So InternetNZ in its submission, said the definition should be expanded to include hosting. We also said that s92A should be deleted. So we (I was part fo the INZ team) got that definition into the bill.
The Commerce Committee admirably did both things. They added this onto the definition of an ISP:
hosts material on websites or other electronic retrieval systems that can be accessed by a user
They also deleted s92A saying:
We recommend that new section 92A (clause 53) be deleted as the standard terms and conditions of agreements between an Internet service provider and its customers usually allow for the termination of accounts of people using the services for illegal activity. Moreover, new section 92C already requires an Internet service provider to delete infringing material or prevent access to it as soon as possible after becoming aware of it.
So the law at that point made sense. No S92A, and an ISP was defined as any person hosting material, in order to qualify for protection from liability if copyright infringing material is placed on their site by others.
But then came along the Minister, who did an SOP. Judith Tizard stuck back in a new form of s92A, specifying:
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.
The Minister and her officials fucked up big time. They stuck in a clause that was reliant on a definition that was no longer appropriate.
So we have a law that now defines even the Prime Minister (as he hosts a website where people can leave comments) as an ISP. And this would have been okay if it was only for the purposes of protecting the PM from liability for any infringing material placed on his website by users. But thaks to Judith the Prime Minister (and every MP who has a website that allows user comments) has to now have a policy that provide for termination of users who are repeat copyright infringers.
Imagine how much money the legal profession is going to make writing such policies for almost every business in New Zealand.
Getting the rights holders and the TCF to agree on a code of practice is a great solution to the problem of people losing their accounts on the basis of mere allegation. And I am hopeful we will get a good result there.
However the code of practice will not be a solution to the fact that the law is an incompetently written law, that is confusing and costly.
February 26th, 2009 at 2:23 pm
How the hell did Tizard ever win Panmure?
Vote:February 26th, 2009 at 2:37 pm
David
Firstly thank you for the kind comment.
Secondly thank you for the background and clarification to what Mr Millett wrote in his letter.
One additional point from my post which people might like to consider is why so much badly drafted law is passed in NZ. It did not happen just under Labour, but under National as well.
Vote:February 26th, 2009 at 3:03 pm
Adam, I ask that myself.
Vote:So much of what I see on a day to day basis has obvious errors, lack of clarity and precision. my feeling is that the PCO which is responsible for drafting much of the legislation and regulations is over-worked and under staffed which has a serious effect on the quality of drafting as cut and paste exercises will be used for the sake of expediency. Also a number of departments use the large law firms to draft legislation regulations and rules so there may not be any consistency of drafting style.
Finally it occurs to me that there will be quite a bit of drafting work done in the offices of members of parliament which may have the effect of diluting the quality of what ultimately appears in statutes. Section 92A is a case in point, removed in the committee stages then re-introduced by the former minister using a SOP employing without proper consideration a wording inconsistent with the drafting of the rest of the bill.
February 26th, 2009 at 3:55 pm
To coin the former minister’s phrase, who do I have to fuck around here to get a decent copyright law?
Vote:February 26th, 2009 at 4:38 pm
This Law is fucked up. Plain and simple.
Vote:February 26th, 2009 at 4:49 pm
Is Judith Tizard famous for any other work and results?
It occured to me that she seemed far to eager to protect the luvies in the Art and Music world.
The Internet should be an open resource without copyright issues.
The World will have a better education this way.
Vote:February 26th, 2009 at 5:03 pm
Um DPF I think you might have your wires crossed with what constitutes hosting.
Hosting should mean basically “owns the physical servers the site is hosted on”.
This does not normally apply to bloggers or the PM. I think you’ll find he purchases hosting services from a hosting provider for this, and that hosting provider definitely provides service.
Vote:February 26th, 2009 at 6:05 pm
I think you’ll find he purchases hosting services from a hosting provider
Maxnet from memory, although this may have changed recently.
Vote:February 26th, 2009 at 6:39 pm
Politicians / lawyers have very little idea about IT/technology. This is why I get annoyed when lawyers are appointed to head tech policy.
Vote:February 26th, 2009 at 9:38 pm
At least Tizzard manages to breathe without assistance. The incompetent way she bumbles around I was beginning to worry she might need help with that. Or maybe reciting “Breathe in, breathe out” is what’s keeping her so occupied she fucks up everything else?
Vote:February 26th, 2009 at 11:15 pm
I am no expert on this law, but some of the shroud waving has got a bit silly.
It may be badly drafted and raise questions about what an ISP is and how copyright breaches should be dealt with, but this cut off on accusation stuff and everyone with a website having to hire a lawyer looks a bit hysterical to me.
I have read the law and that is not how I would interpret it (though that doesn’t matter much anymore, since it appears a law passed by Parliament has been suspended by ministerial decree, which opens up a whole new can of worms).
But putting aside all that. I was interested to see some of the commentary..
“It occured to me that she seemed far to eager to protect the luvies in the Art and Music world. The Internet should be an open resource without copyright issues.”
I know the person who made it is just a ranter (who still owes me a $1000 for betting National would gain 50 percent of the party vote at the last election), but it does offer an insight.
I thought the Kiwiblog commenteriat believed in property rights, surely protection of intellectual property.. copyright should be at the heart of that.
Maybe I am reading it wrong and those who make such comments are more of an anarchist breed and it is okay to destroy or steal the property of others for a greater cause you believe in?
Is it the same as those who believe it is okay to publish lies and defame people because it is on a blog? Do you not believe the rule of law should apply?
Honestly I don’t want to be a troll here or advocate one way or another.
I just may be a bit thick and don’t see the logic behind much of the arguments. I am just interested in what some commentators here believe in outside “us good, them bad”
[DPF: Ian I suggest you read the proposal by the rights holder groups that the correct way to implement the law would be to allow them to decide if a user has infringed copyright, and has the ISP implement their decisions.]
Vote:February 26th, 2009 at 11:45 pm
I read that, but I didn’t see anyone who agreed with it
Vote:February 27th, 2009 at 12:07 am
I also read another version that had those accused of breaching copyright being able to say “no they are wrong” and that being the end of it. Which would equally leave those feeling ripped off a bit upset. These things are a matter of balance… which takes me back to the reason why I commented here in the first place. I am just interested where does the Kiwiblog commenteriat stand on property rights/ the law and the internet
Vote:February 27th, 2009 at 12:42 am
There are numerous problems with the new Copyright laws if you are a rights holder.
For starters Jude decided to give everyone the right to make copies (well, a copy) of anything they get. This is in breach of all our international treaties. I think they might have got around it by an out-clause which basically says “unless you are party to a contract that states otherwise”, which basically allows contracting out of that. A music copyright holder would then need to do what software vendors do, and have people who buy a CD basically sign off on a EULA. Can’t see that being a winner.
I think in general rights must be respected. When you buy a CD you only buy the physical medium. You don’t own the music on it, that’s only licensed to you under strict terms.
Even though I believe rights should be upheld, I don’t believe there is a reliable enough way to do it on the internet. So the risks of punishing an innocent are much higher than in other realms of justice. If the methodologies were published we maybe could get a bit more comfortable with them, but fundamentally you can’t trust the source IP of something connected to you to be necessarily the IP currently assigned to the person behind the client software. There are so many open proxies out there (tens of thousands) that anyone can anonymise their source IP. Next the record companies will try and get ISPs to prevent people surfing through anonymous proxies?
In the end I think the record companies need to find another way forward. Sure, they have lost 50% revenue over the last few years. But clinging on and striking out against individuals on a massive scale isn’t going to help their cause.
In the end, it’s companies like Apple and Sony who are making it easy for people to copy music that should perhaps be looking in the mirror. It’s basically promoted, yet illegal. How does that work.
Vote:February 27th, 2009 at 11:20 am
Stop blaming the previous government, the Nats need to kill this stupid legislation rather than implement it!
Vote: