Campbell Smith on s92A

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.

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