TelstraClear kill off s92A Code

March 12th, 2009 at 9:53 am by David Farrar

TelstraClear have killed off the Code of Practice designed to try and get workable process around the deeply flawed s92A. They have said they will veto the code at the Board. rules allow any board member to veto.

I was initially pissed off at TelstraClear, because all the hundreds of hours of work put into the code are now wasted. But upon reflection, I think they have have done the right thing by stepping back and saying this law is just so bad, we can;t make it workable through a code. Their submission explains:

TelstraClear considers that there is a fundamental problem with the TCF being a party to any code of this nature, which is that the code would be based on flawed legislation.

In TetstraClear’s view, any industry code would simply be an attempt to tidy up poorly drafted legislation. TelstraClear does not consider this to be the responsibility of the TCF. Indeed the best outcome would be if s92A was repealed. Failing that, it should be amended to address the above concerns:

So there will be no TCF code. The other ISPs can continue work on the code as an unofficial grouping, but it would be madness to have s92A come into force with no code in place.

The submission on the code are very interesting, and I hope MPs look at some of them. Take this submission from the leading IT jurist in NZ – Judge David Harvey. is also the former Chair of the Tribunal so about as authoritiative as you can get on this area:

This section is poorly drafted and makes a number of unsupported assumptions, but in essence it suggests that an Internet service provider must develop a policy to cancel an existing contract as a result of copyright infringement.

The reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract.

Judge Harvey further concludes:

section 92A is unnecessary and gives rise to a situation where a person may be deprived of rights under a contract without proper legal process.

Does the Government really want to persist with s92A bearing in mond those comments, and that there will now be no TCF code?

If it had been Parliament’s intention to provide for a process whereby contract termination should take place, Parliament should have provided such process by legislation after proper consultation with all interested parties.

This is basically TCL’s point. You can’t ask private players to determine these rights when the law is so silent on details.

The Australian ISP Association has commented:

As mentioned above, we are aware that a concerted worldwide effort has been made by rights holders in the music and film industries over the past two years to lobby for the introduction of a ‘notice and disconnect’ scheme along the lines of that proposed in the Code. In spite of that, no ‘notice and disconnect’ scheme has been implemented anywhere in the world.

Yay, we could be first. In fact that is why the US groups are pushing so hard – they want us to be an international template.

In all jurisdictions (except France) where the introduction of ‘notice and disconnect’ schemes have been considered and consulted on by Governments, there is now a general move away from any scheme which requires ISPs to terminate internet accounts, on the basis of an allegation of infringement from rights holders.

The whole world except Judith Tizard has realised what a bad idea this is.

Auckland University says:

The main problem is in Section 92A of the Copyright Act which we believe should be removed from the Act or, if it is to remain in some form, then substantially redrafted with input from stakeholders as would have happened during a select committee process.

The Auckland District Law Society:

Section 92A represents a mechanism whereby the copyright holder, an unrelated third party, can interfere with the contractual rights between an ISP and a customer, where the customer is identified as a repeat copyright infringer. Under common law, that could, without significant justification, amount to the tort of interference with contractual relations.

This law is just as flawed as the Electoral Finance Act. When the former Chair of the Copyright Tribunal, the and the country’s largest university says the law needs to repealed or amended, it is time to do so.

National did the right thing by delaying the introduction until a code could be completed. But we now know that unless the law is amended, a code is not going to happen, so time to introduce a bill amending or repealing the clause.

UPDATE: Also worth reading the submission from the Society of Authors. They are as pro-copyright as anyone, yet they say:

The NZ Society of Authors is concerned about the introduction of the proposed s92A of the Copyright Act 1994. Whilst we strongly support the need for measures to control repeat copyright infringement we feel that this clause is not ideal – it has been hastily written and we recommend the need for further discussion.

We feel that should Section 92A be implemented, it is imperative that the Code of Practice be effective and respectful of the rights to freedom of expression.

Radio NZ has said no disconnection should occur without a court order unless there is an independent body established by the Government to rule on any disputes.

And Internet giant Google has also made a submission:

Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement. …

Copyright law is often complex and context sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. Indeed, in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders. In this context, the responsibility should not fall to ISPs to determine cases of infringement.

It is very relevant that Google has testified that many rightholders notices are inaccurate and indeed improper.

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16 Responses to “TelstraClear kill off s92A Code”

  1. Glutaemus Maximus (2,207 comments) says:

    What a lot of hot air, and waste of time about nothing.

    Well done Judith Tizard. Perhaps the only job you attempted, failed miserably.

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  2. philu (13,393 comments) says:

    very tidy round-up there..dpf..

    ..i’ll haff to link to ya..

    phil(whoar.co.nz)

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  3. goodgod (1,348 comments) says:

    The only party more stupid than Tizard in this matter is the National Party for believing they could pick up a turd from the clean end. This is becoming a pattern of our new “saviours” and it should be pretty clear by now, given the history of the last lot of retarded malcontents to hold power, that their M.O. is not going to change.

    The fourth estate has abandoned it’s responsiblities. Now it is up to the bloggers to stand alone, give up their poltical affiliations and call this communicable disease of political mis-thinking for what it is.

    Otherwise our great friends, greenfly and Paul Williams, were right – the wailing of the past nine years, on this blog and others, was a complete waste of air. If we continue to make fools of ourselves by subordinating good sense to political entertainment we have only ourselves to blame. The system will never be fixed until it is accepted that it is broken. Thought processes cannot be changed until they are exposed as wrong. Wasted resources cannot be redirected until they are recognised as wasted. There is a right and wrong to this. The National Party, their current hold on power and their delight in applying relativity in all things, is not more valuable than our people’s ability to think straight.

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  4. philu (13,393 comments) says:

    “..The only party more stupid than Tizard in this matter is the National Party for believing they could pick up a turd from the clean end..”

    heh..!

    phil(whoar.co.nz)

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  5. philu (13,393 comments) says:

    goodgod..

    you should read this..

    (freidmans latest piece/thoughts/conclusions..)

    http://whoar.co.nz/2009/2008-when-mother-nature-and-the-market-both-saidno-more/

    it’s a ‘good read’..(as they say..)

    phil(whoar.co.nz)

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  6. adc (595 comments) says:

    so who is the minister now in charge of this? Is it Steven Joyce?

    [DPF: No, Simon Power]

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  7. goodgod (1,348 comments) says:

    you should read this..

    (freidmans latest piece/thoughts/conclusions..)

    http://whoar.co.nz/2009/2008-when-mother-nature-and-the-market-both-saidno-more/

    it’s a ‘good read’..(as they say..)

    phil(whoar.co.nz)

    (for those of you who are, shall we say, undisposed to visiting whoar.co.nz, it is part of an article frorm The Onion news site, a satire of world events, but this contains some interesting points…)

    From your link:

    I hear that Americans can buy anything they want, and I believe it, judging from the things I’ve made for them,” Chen said.

    “And I also hear that, when they no longer want an item, they simply throw it away.

    So wasteful and contemptible.”

    Let’s today step out of the normal boundaries of analysis of our economic crisis and ask a radical question: ..

    .. What if the crisis of 2008 represents something much more fundamental than a deep recession?

    What if it’s telling us that the whole growth model we created over the last 50 years is simply unsustainable economically and ecologically ..

    .. and that 2008 was when we hit the wall —

    ..when Mother Nature and the market both said: “No more.”

    I agree in some way. This “global recession”, or as I call it, an imaginary recession, is just the market murmuring that efficiency has fallen below acceptable levels. I don’t need to attribute it to mother nature, Global warming, an very thin attack on capitalist style growth, sneer at it as contemptable, or scaremonger that resources will run out. We have resources coming out our ears and will have for ever, as far as I’m concerned. I don’t believe a return to past models will work either, such as making cars that are so well constructed, and of such high quality steel, that they don’t break down or even think of rusting for 60+ years.

    What I believe this recession is, is the market offering us a opportunity to stop and review how we do business, how we manufacutre, how we supply our products, how the part of our society that bases itself around consumer goods can be changed to a more efficient model. That is what this imaginary recession is about. We can either go on as if nothing happened, fire all government funds (our taxes) into saving things that would be better re-designed or considered obsolete and solve it that way – temporarily – or we can seriously reconsider our approach to capitalism.

    Simple huh? Well, it is when you write it down, but then reality comes racing in and the political left start wailing their way is right and the political right coutner that with the same and the compromises and bastardisations begin resulting in not much of anything useful. That’s what we have happening now. But it needn’t concern us.

    The problem can be solved by individuals already in business, or those who are in a position to begin their businesses, who have the urge to be better, to be efficient, to take risks into an aspect of capitalism that has not yet been explored. In short, it is up to them to shunt our world’s way of trading forward. They must bravely, if not blindly, grope around for something new because they think it may exist. That’s just how all our advances were once born.

    There is no need to look to government during this exploration, nothing they can do can stop the search for increased efficiency.

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  8. philu (13,393 comments) says:

    um..googgod..!..i didn’t link to an article in ‘the onion’.

    ..i linked readers to an article by thomas freidman..

    ..that in the preface..referenced ‘the onion’..

    yours..in the interests of accuracy.

    phil(whoar.co.nz)

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  9. philu (13,393 comments) says:

    and that you have chosen to selectively quote..

    ..and to use that as the starting point for your own tangential practice..

    ..only confirms for me the worth/’accuracy’ of my ‘practice’..

    .. of urging my readers to go and read the whole piece..

    phil(whoar.co.nz)

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  10. petal (706 comments) says:

    Who’s greenfly?

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  11. transmogrifier (522 comments) says:

    I think we have to face facts and admit that a lot of people oppose the law because they like downloading copyrighted material for free, and don’t like the idea of not being allowed to do it anymore. This, I think, is undeniable. This, however, doesn’t make this crappy piece of law right.

    Everyone get your damn heads together and work out something workable and just.

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  12. goodgod (1,348 comments) says:

    I love giving you negetive karma without even stopping to see what you’ve said, read or thought phil, because you consistently portray yourself as a complete twat. And this is no exception. If I read something or part of something or part of a part of something and choose to comment on it I will – without any recourse to what you think I should have done or said.

    As transmogrifier has stated above, the same principle applies for S92A: End the layer upon layer of stupidity that attempts to make something that is ruined, into something that is not ruined, and start again sensibly.

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  13. philu (13,393 comments) says:

    “..I love giving you negetive karma without even stopping to see what you’ve said, read or thought phil,.”

    never experienced the freedoms/delights of an open mind..?..eh goofgod..?

    ..my condolances..

    (do you need a fork..?..)

    phil(whoar.co.nz)

    and..um..!..easily entertained..?..eh..?..

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  14. kiwipolemicist (393 comments) says:

    Quite apart from the guilt-by-accusation aspect of s92A, there is another problem with it: it’s impossible to prove a negative.

    Basic logic says that it is impossible to prove a negative, i.e. it is impossible to prove that you didn’t steal content.

    Saddam Hussein ran into the same problem when Bush demanded that he prove that he didn’t have any weapons of mass destruction.

    Furthermore, the conflict is between the copyright holder and the thief. It is grossly unjust to force ISPs into being agents of copyright holders, because the ISP is a third party that has no culpability.

    This Bill came out of the south end of a politician that was facing north at the time.

    In a similar vein:
    http://kiwipolemicist.wordpress.com/2009/03/10/are-we-innocent-until-proven-guilty-in-a-court-of-law/

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  15. peterwn (3,272 comments) says:

    And what is more, TelstraClear has sufficient legal clout to walk all over the copyright people.

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