The S92A proposal
Simon Power has released a proposal for the review of s92A. One can give feedback on the proposal until Friday 7 August.
The Proposed Approach: Summary
Phase 1- First Infringement and Cease and Desist Notice Procedure
Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber
concerned. This notice must then be forwarded by the ISP to the subscriber. If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity to reply to either notice by way of a response notice directly to the RH with their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.
There will be issues here of who do you define as an ISP and a subscriber, and also quite importantly do ISPs get their costs covered for looking up who was at an IP address at a particular time, and passing a notice on. But the principle of the ISP passing on the infringement notice to the subscriber seems sounds to me, so long as costs are resolved.
Phase 2- Obtain Copyright Tribunal Order
Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).
This seems appropriate. It should be an independent body such as the Copyright Tribunal that should have the power to order contact details of an alleged infringer. This is similar to how a court can order an ISP to name a customer if needed for a court case such as defamation.
Phase 3- Copyright Tribunal
A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise.
The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate the subscriber’s internet account.
I like the ability for mediation. Again this looks a significant improvement on the original which has ISPs deciding who was guilty.
However there are still aspects I am uncomfortable with. I am not convinced that termination of Internet access is an appropriate penalty in a world where the Internet is so critical. No other offence or infringement has this as a sanction. Even extremely serious offences such as trading child pornography, doesn’t have a penalty where a Judge can order your Internet cut off. They send people to jail, and fine them.
I do support the option of a fine, rather than merely damages.
Also have queries around the cost of filing a complaint with the Tribunal (what will it be), and what the total cost of the regime would be, and comparing that to the benefits of this regime. If MED have some ballpark estimates, it would be good if they could share this.
Also of considerable concern is that the ISPs are still piggy in the middle to some degree. When you get into the fine print of the proposal, you see ISPs are required to still record infringements notices against customer accounts etc and work out when they expire. Now this means an ISP has to reconfigure their CRM database. For some of the bigger ISPs, this could well cost them over $500,000 to do. Over the entire industry of 100 ISPs, the cost on these businesses could run to many millions of dollars. Will there be reimbursement for these costs? Is a recession a good time to be forcing extra costs on these businesses?
This is definitely a big improvement on the original s92A, and the Government should be praised for that. But there still remains significant questions about whether this is the best way to help rights holders combat copyright infringement.
That’s my initial take. I imagine I’ll have more to say once I’ve had more time to consider the detail.
July 14th, 2009 at 3:26 pm
I’d be interested in a penalty regime for infringement allegations that are based on shonky evidence. In my experience, far more false allegations will be received than ones that are proven by reliable evidence. If a member of the public needs to defend themself against a false allegation, then they should be awarded costs. And the rights holder should have their internet access terminated.
July 14th, 2009 at 4:06 pm
All good for catching the casual BT users (e.g. via honeypot), but the proposal is no good against newsgroup and file hosting services hosted overseas. Don’t forget most NZers don’t upload or share copyrighted materials illegally, but download them from overseas. Since most file hosting and newsgroup services don’t log user activities, it’s almost impossible for copyright holders to found out which Kiwis are downloading their work, unless the copyright holders first summon the service provider (the newsgroup and file hosting services, not your local ISP) for access log (if they even keep one), before they can contact the NZ ISP to identify the user.
July 14th, 2009 at 4:18 pm
Does the technology actually exist to get to phase 2?
How will a RH know if there is a repeat infringement? They will only see the IP address, and that can change each time a user reboots their ADSL modem. The RH will have to rely on the ISP’s to identify 2nd infringements. But, that does not seem to be addressed.
July 14th, 2009 at 4:26 pm
All this is eventually going to lead to a requirement to have an Internet passport or drivers’ licence. One day we will tell incredulous youngsters that it was possible to be anonymous on the Internet.
July 14th, 2009 at 4:34 pm
Sorry, what right does any ISP have to spy on (either themselves or on behalf of a rights holder) what their users are doing?
NZ Post can’t search letters if they think there’s something illegal going on.
If rights holders have evidence of breaches of the law then they should go to police – enforcing the law is the police’s job, not ISPs or rights holders.
July 14th, 2009 at 4:37 pm
I’ve got a proposal, it invloves a match.
July 14th, 2009 at 4:46 pm
Can’t say there’s anyone or anything above to disagree with, except for the proposals for new laws. Laws we don’t need. We already have copyright laws. Enforce those.
Do we want to end up like this?
http://www.youtube.com/watch?v=goEEbsEDEM4&feature=player_embedded
July 14th, 2009 at 4:48 pm
NZ Post can’t search letters if they think there’s something illegal going on.
And even if there is, one is prosecuted for that offence, not denied a mail service.
Why stop at cutting of the internet? Better also cut off electricity so I can’t burn CDs and listen to them.
July 14th, 2009 at 4:58 pm
If you would like to listen to a programme about copyright and S92A,
http://podcast.radionz.co.nz/inst/inst-20090712-0812-Insight_for_Sunday_12_July_2009_Copyright-048.mp3
July 14th, 2009 at 5:16 pm
All this seems rather elaborate for what could be expected to be a civil tort. It looks like the primary purpose is to reduce the cost to the copyright holders in persecuting a claim of infringement, and probably to a lower level of proof, too. Creating a new judiciary system and placing burden upon ISPs seems to be cost shifting.
July 14th, 2009 at 5:28 pm
Ok listen up class – time to remind most of you, and time to learn something new for you young’uns.
It’s a **standard** technique, and you must be weary of it.
How do you get a population to accept an unpopular something, called A?
Simple. Also push for a much more outrageous something, called B.
Populace all up in arms about B.
Government “caves in” on B, gets A accepted
Government smiles
Population thinks “they won”
Ok, you need a forinstance, ok.
Introduction of credit card picture drivers’ licenses.
Unpopular idea, because of privacy and big brother concerns, probably not going to fly
Introduce option B at the same time: NATIONAL ID CARD FOR EVERYONE
Oh my gawd – it IS true, they ARE trying to introduce Nazi like Government control!
“Cave in” on compulsory national id card idea
Accepted: picture drivers license, the original aim.
Public thinks they won. (of course not, as this is a national id card for 95% of all adults)
Now that you know, you can use this for your own life
1. recognise it when it is happening to you, and learn to derail option A also
2. use it yourself (school board, club committee, meetings at work) to get option A through
Someone once said to me “never ask a question you don’t already know the answer to”
Have fun, and be sure to send Miss Petal a postcard
July 14th, 2009 at 6:21 pm
Anything to come out of the vile Tizard should be thrown out immediately. During the election National claimed Helen was enforcing a nanny state… so what would we call this? Lesser nanny state? Other countries have thrown out such proposals, why should we “lead” (riiiight) on this?
July 14th, 2009 at 7:33 pm
Clare on Red Alert has moved further away from s92A than David. Interesting. http://blog.labour.org.nz/index.php/2009/07/14/not-much-chop-on-copyright-or-anything-else/
July 14th, 2009 at 8:20 pm
Why stop at cutting infringers off from the internet. They used electricity to download so lets ban them using that as well.
Banning them from using the internet will also mean losing their jobs, as many people who are capable of downloading work with computers with internet access. If the infringing was at home will an employer have to ensure that one employee has no internet access?
July 14th, 2009 at 9:26 pm
Trev are you the new Philu with your linkwhoring? If I cared what was said on your communist propaganda website I’d be reading it already.
July 14th, 2009 at 9:50 pm
Hagues, its worse than that.
You’re just chilled out and ready to hit the pit (that would be order to get up in the morning and go to work Phil) and the deadbeat yobbo political neandertal duckman chimes in to remind us not only what a complete and utter arse he is, but also what the last 9 years were like. If he had half a brain he would lie low so we can try and forget all about him. At least then he and his cronies would have half a chance next time round. But no, he’s too stupid and arrogant to figure out that he should just quietly fuck off into the shadows.
July 15th, 2009 at 12:30 am
It’s a **standard** technique, and you must be weary of it.
I think you are right in most cases petal but you picked exactly the wrong example in this case.
I would prefer to live unlawfully before having to carry around any “National ID Card” Smart or otherwise.
But, by putting a persons photo on a license, it removes one big reason for any authority to introduce said ID cards.
July 15th, 2009 at 7:27 am
If yo uare going to compare the costs and benefits since the marginal cost of software and music is 0 then the benefits of piracy are likely to outweigh the costs even before the government spends a cent. That would only not be the case if the lack of sales was forcing the companies under (and does anyone think we have a shortage of movies and music in the world today?) and since the vast majority are non NZ companies that would be unlikely to be very large compared to the costs from a NZ perspective (in this regard it is rather like the global warming debate).
If such a law is to get off the ground it has to be entirely about protection of property rights at any cost.
July 17th, 2009 at 12:22 am
http://www.voxy.co.nz/national/internet-filtering-lead/5/18541
So much noise but so quite?
If you have nothing to hide you have nothing to fear.
This may not be connected to copy right but an unpublished list and tracking
You invent a weapon that you and your buddies may-not use but it will be eventually and by people that may-not hold your intentions.