Adam 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.Tags: copyright, The Inquiring Mind