Campbell Smith on s92A

March 9th, 2009 at 6:33 am by David Farrar

Campbell Smith of RIANZ has a column in favour of s92A in the NZ Herald:

New Zealand was at the forefront of tackling the issue with a law that had received bipartisan backing.

Indeed. The Select Committee unamiously agreed to take s92A out of the bill, and then it was inserted back in supported by all parties bar the Greens and Maori Party. And since then every party in Parliament has backed to some degree away from the law calling it flawed.

The recording industry has transformed its business models, making music available online and on mobile through a variety of different partners. Yet the widespread availability of unlicensed music on the internet acts as a disincentive to those considering setting up legal services.

Things have got better. I remember the days when it was illegal to use an iPod in NZ, because format shifting was illegal and iTunes was not available here.

I think there is still some way to go. A monthly subscription fee to be able to legally download popular music seems to me to be part of the future.

The recorded music industry has been working hard to find proportionate and reasonable solutions to tackling online infringement. In some countries, labels have taken legal action against users who have uploaded infringing music to the internet without permission for millions to download without payment. We believe section 92A is a better solution for everyone.

It isn’t a binary choice.

Some people have suggested the new law would mean people keeping tabs on what internet sites people visit or monitoring people’s email. That is not true.

I suppose it is possible some people have said this. But it is a bit of a red herring. I’m never heard anyone seriously suggesting this – certainly not any of the key groups or individuals opposing s92A.

Others suggest that under the draft code of conduct designed to implement the law people will be summarily thrown off the internet for downloading a couple of unlicensed files. That is also not true.

This is right – it needs at least four files.

What would happen is simple. Right holders could log on to public file-sharing sites, just as anyone can, and note which IP addresses are being used to upload pre-release music or films or large amounts of copyright-infringing material.

They would then prepare evidence, complete with details of the names of the copyrighted files being uploaded, exact timestamps and the protocol used, and send it to the relevant ISP. They would never see the personal details of the person behind that IP address.

The ISP would then contact its user and warn them that they were breaking the law, advise them not to do it again and provide details of where to enjoy music legally online.

If the user kept breaking the law the ISP could close the internet account.

It is not a matter of “could” as “must”. And the problem is Campbell sees copyright as only being about music files.

I’ve just quoted most of his column here, so I can respond to it. It is arguable I have breached the copyright of the NZ Herald and/or Campbell. I have a defence of fair dealing, but you know I don’t want my blog to face closure because my ISP has to decide whether or not the amount of text I quoted was “fair”.

I agree with the proposition that users should be able to flag to an independent adjudicator anything they regard as mistaken evidence. This is no sledgehammer. On the contrary, it is a reasonable and much preferable alternative to the lawsuits we’ve seen in other countries.

And this stance is welcome. I must point out that their previous stance was itself would adjudicate any disputes, where is the complainant. That is what so many people were against.

8 Responses to “Campbell Smith on s92A”

  1. peterwn (4,284 comments) says:

    Now that a USA NZ free trade deal is off the table for now, any pressing need to implement the section is no longer there. Very cynically if Hollywood and the US music industry desperately want it, they can lobby President Obama to re-start trade talks.

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  2. Chicken Little (707 comments) says:

    2 things –

    1) Biggest downloaded movie of 2008 – Batman with Heath
    Highest grossing movie of 2008 – Batman with Heath (over US$1 billion and counting)

    2) Hollywood has just had its biggest year EVER for cinema receipts in the US.

    How much are OUR costs to access the interwebs going to rise to cover ISP’s for their costs to police the interwebs for corporates that refuse or are slow to change their business model?

    With encryption and private tracker/torrents sites popping up everywhere this law is/will be on a hiding to nothing. In the meantime we are wasting taxpayers money passing it to law. We will waste more taxpayers money in increased costs for users, adjudicating disputes and finally overturning this thing when it becomes obvious in a year or so that it’s not going to work.

    These middle men (in regards to music) are yesterdays people. For years they have been making huge profits from consumers by controlling the access to output of artists. Things have changed. I can fully understand why they want to fight that change to the death. I am however a little disappointed to see our government aiding and abetting them.

    Reminds me of cavalry charges in WW1.

    Won’t somebody think of the horses?

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  3. davidp (3,865 comments) says:

    I might have said this before, but I used to be the guy responsible for investigating complaints of theft by “rights holders” for an Aussie state government. The rights holders didn’t get a single complaint right. Usually the IP addresses they listed were on subnets that weren’t active. In other cases, the internet logs didn’t show any P2P traffic and there was no P2P software installed on the “offending” computer. Besides the poor quality of their evidence, the complaints generally used ambiguous date formats (US-style, but they didn’t say), and did thing like list US addresses and phone numbers without adding “USA” or an international code. They used to threaten us with US laws, possibly unaware that Australia wasn’t part of the US. It was a waste of time investigating, and someone was paying and it wasn’t them.

    Under S92a, these people would be judge and jury while ISPs would be executioner.

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  4. aardvark (417 comments) says:

    Didn’t I read that more than a handful of musicians are opposed to Sec 92A?

    If that’s the case, what right does RIANZ have to claim that they’re representing the rights of musicians in NZ?

    Isn’t this a bit like one Maori claiming to represent all?

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  5. adc (578 comments) says:

    Someone needs to explain to Campbell Smith that just because you can log an IP, doesn’t mean that the “owner” of the IP did the deed.

    All it means is that the connection to their server was from that IP. That doesn’t mean the person running the client download software connected directly to them. There are zillions of open proxies people use to “anonymise” their address. Just google “anonymous proxy” – about 1.9M results.

    Apart from the open proxies explicitly run by organisations to provide anonymous surfing, there are the other ones – open proxies set up by trojans / viruses to allow spammers to send mail through your account without you knowing it.

    There are scanners out there that constantly scan for these, and publish them on lists for others to use. These are also usable to web surf.

    So, one day one of your net users double-clicks an attachment in their email… nothing happens, but it launches a trojan downloader, and infects the rest of their LAN, setting up open proxies. A passing port scan finds this, and publishes it on a list. So then you have lots of people surfing through your IP, downloading and uploading illegal content, for which you get the blame, but no chance to defend yourself.

    You cannot guarantee that the IP address that an offense comes from is owned by the offender. This is why you won’t find any firewall software that has auto-retaliation features, because it could be retaliating against an innocent. Firewall vendors know this. It’s time the music industry learned it too.

    Who is providing tech advice on this?

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  6. NeillR (353 comments) says:

    Let’s deal with the bollocks that this copyright law somehow protects the artists – it protects the RIAA and their outdated thinking (and keeps the artists as slaves to the RIAA). Through their lack of foresight and an inability to take advantage of a changed distribution model they ensured that piracy became so prevalent as to be impossible to counter. And now they want to destroy one of the fundamental tenents of Westminster law to keep themselves in the game – morans.

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  7. MT_Tinman (4,392 comments) says:

    Once again this discussion fails to note the main point; that the recording industry copywrite system is simply protectionism.

    For the best part of fifty years most recorded “music” has simply been a copy of someone else’ work with very minor differences added to create the impression of originality.

    Copywrite has been used to protect and grossly inflate the “value” of this “work”.

    The majority of moving pictures are the same.

    Copywrite should only be available for completely and genuinely original works.

    If that means some noisemaker (ya can’t call the bastards musicians) starves because no-one will go to see him perform live, good.

    Hardship is supposed to be good for art production.

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  8. lyndon (329 comments) says:

    I don’t want my blog to face closure because my ISP has to decide whether or not the amount of text I quoted was “fair”.

    Point taken, but have you seen section 93 (no doubt you have, but everyone else had best know about it)? I’m not sure if it’s in force or not but that the one that deals with hosting (rather than 92 and downloads) and it looks to like the summary injustice there rather more likely. One complaint, and either the ISP has to decide to back you or take you stuff down.

    [DPF: Also a problem, but at least the takedown is targeted to the complained about material – not the whole blog]

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