Not bad
December 16th, 2009 at 3:59 pm by David FarrarThe Government has released their proposals for S92A, and I have to say that the proposal is not too bad. Some aspects not great, but some aspects are pretty fair.
The press release has a Q&A, but I recommend those interested read the full Cabinet paper.
My initial thoughts are:
Good:
- Three notices needed within 9 months to go to Tribunal
- Users can stay anonymous and send response via ISP
- Users remain anonymous at Tribunal stage unless they lose
- Notices must be sent to ISPs within 20 days of alleged infringement, so a huge number can not be collated over months and then piled into an ISP
- Rights holders will have to pay a fee per notice, to cover their admin costs in issuing the notices
- Termination/Suspension is an option only for courts, not the tribunal (or ISPs)
- Termination is defined as suspension of that account for up to six months so law is clear
- A new definition of ISP to be drafted for S92A only, which will be narrower then current definition which includes employers, bloggers etc.
- ISP given statutory protection where they comply with the Act and any court orders
- Law not to come into effect until six months after amendments passed
- 92A to be available for P2P infringing only, and material under 92C excluded from gambit of 92A
Not so good:
- Time between 1st and 2nd notice can be as little as 10 working days and 10 again between 2nd and 3rd. That means you can get to strike three in a month.
- The fee rights holders pay to ISPs is set by Govt and will not include capital costs of modifying systems
- No sanctions on right holders for false notices
- Termination/Suspension is still an option
Overall I have to say a huge improvement over the original 92A, and even a slight improvement over the discussion proposal.
I do think some further changes are desirable, and if a bill appears based on the paper, will submit for changes at select committee level.
A critical issue will be the level of the notice fee – too low and it will not provide a incentive for rights holders to be restrained in their allegations, and also it may not properly compensate ISPs for their costs.
I think the major change needed is the time frames for notices. They need to be such that a notice has to be based on an infringement that has occurred after one is sure they have received the previous notice. At present it does not do that. You should only get to strike two, if you have clearly continued infringing after receiving the first notice, and likewise strike three should only occur, if you continued after receiving the second notice.
But overall as I said, this is not too bad. Simon Power and officials have done a pretty good job in a complex area. But again that is not to say some further enhancements are not desirable, and I am looking forward to further engagement in the process.
Related posts:
- $25 cost set for copyright complaints
- Copyright termination terminated – for now
- The S92A proposal
- The new Section 92A
December 16th, 2009 at 4:05 pm
Why three notices, rather than two or four? Surely we’re not basing NZ law on a “three strikes and you’re out” baseball analogy?
Vote:December 16th, 2009 at 4:11 pm
One is educational, one is a case and desist and one is a final warning.
Vote:December 16th, 2009 at 4:23 pm
More fart-arsing around with non-issues, more “must be seen to be doing something”. When will this government act to reverse New Zealand’s relative economic decline?
[DPF: What a stupid comment. An unworkable law was passed by the last Govt, and this Govt is fixing the law. Do you think the original law should have been left as it was?
And also it is incredibly puerile to suggest that working in one portfolio area means no work is being done in another portfolio area. The Govt has lots of stuff for economic growth happening including better roads, the minerals stocktake, the tax cuts in April, the cutting of back office public sector costs, the capital markets review etc etc]
Vote:December 16th, 2009 at 4:24 pm
This will not work to stop determined downloaders.
All you need is to setup a download proxy or vpn tunnel and they cannot track you. These services are widely advertised on the net. It is the same type of technology that assists chinese consumers to bypass filters.
But, it may slow down piracy for a while which is good.
Vote:December 16th, 2009 at 4:33 pm
The media companies are still a bit out of this, the NZ consumer is not. I would be all for this IF webistes like HULU or Itunes were able to provide the same content here that they do in the states!.
Vote:December 16th, 2009 at 5:00 pm
Notice 1: http://www.kiwiblog.co.nz/wp-content/uploads/2009/12/cannibal-polar-bear-150×101.jpg from http://www.reuters.com/news/pictures/slideshow?articleId=USRTXRLWU#a=1
Notice 2: http://www.kiwiblog.co.nz/wp-content/uploads/2009/12/what-about-me.JPG from: http://www.scoop.co.nz/stories/HL0912/S00126.htm
Notice 3? : http://www.kiwiblog.co.nz/wp-content/uploads/2009/12/Vinnie-Munro-with-a-card_2380490.JPG
[DPF: 92A will only apply to peer to peer downloading. The examples above would be under 92C which only requires me to remove them if complained about. Which I would do anyway]
Vote:December 16th, 2009 at 5:00 pm
They can not identify the alleged perpetrator any further than the public IP address – a public IP address that can be shared amongst many.
Are they advocating punishing the innocent because they are technically incapable of actually identifying the violator?
Plenty of motels, hotels, cafes, and hotspots will find themselves being hauled infront of a tribunal based on breaking no law.
Vote:December 16th, 2009 at 5:42 pm
DPF>92A will only apply to peer to peer downloading.
So if I offered up a film on a web site, it’d be covered by 92C and the worst that could happen would be I’d have to remove it.
But if I offered up a film on a Torrent, I’d lose my Internet connection.
Why treat cases differently, depending on protocol?
[DPF: If you offered a film on a website they could actually take you to court for economic damages. You will not lose your connection if you offer a film over P2P. You could lose your connection if a right holder actually took you to court (not just the tribunal) for repeated infringing. The cost of court action is prohibitive so I expect they would only do this as a last resort]
Vote:December 16th, 2009 at 5:48 pm
Of course, this’ll all be rendered moot when ACTA comes in and puts our copyright law in the hands of the US entertainment industry..
Vote:December 16th, 2009 at 8:02 pm
At what point does internet filtering become censorship?
GORDON FARRER
December 16, 2009 – 5:03PM
This response to the the Australian Government’s announcement yesterday confirming plans to implement mandatory filtering by internet service providers (ISPs) of certain categories of online material does not suggest that the twitterati are pro-child pornography, partial to incest and bestiality, or keen to incite violence. It does suggest that many people think it is important to fight for openness and the free exchange of ideas, qualities fundamental to the internet.
The twitterverse was predictably scathing.
One tweeter going by the handle “incorrect” wrote “This moronic filtering proposed by Conroy should be referred to as ‘the old Chinese remedy”‘. drunkenkoala tweeted that “for a democratic country this sure does seem like china or iran”. asphotos blasted “Chairman rudd you communist” while om-henners mused “I have to wonder whether Stephen Conroy read 1984 and thought ‘I could totally do that”‘.
More at; http://www.smh.com.au/opinion/society-and-culture/at-what-point-does-internet-filtering-become-censorship-20091216-kwx5.html
Vote:December 16th, 2009 at 9:41 pm
DPF, you forgot about the 2025 report and the tax review. Oh, wait.
Vote:December 16th, 2009 at 11:02 pm
this is the high point of freedom on the internet from here on in the government and their corporate bosses will get back what was theirs.
This will be one part but with the introduction of censorship on the web they will have regained control.
Australia is introducing controls and secret blacklists and national has moved in this direction.
Soon you will be at the mercy of the elite again. Google founder did say that if you want it secret don’t put it on line even a search. All this information about you will is being recorded and if you cause those in power trouble then your life will be over.
Down loads will be the least of your worries soon.
Vote:December 17th, 2009 at 12:38 am
Lmao, the government thinks they can control the internet. Also lmao – the government thinks they have the *right* to control the internet.
Vote:December 17th, 2009 at 6:51 am
Have all the Law and controls you like but surely we should have learned by now that by the time they are in law they are obsolete. Its the nature of the beast, people are not stupid despite that propensity for politicians to think so. Technology doesn’t stand still while pollies sleep.
The market place will see to it that progress is always forward and the smart realize that you capture the market for a sliver of time and then the market moves.
The efforts this year to install world government and censorship world wide by politicians of the left is becoming increasingly obvious as is the Islamic efforts to shut down freedom of speech.
We need to be vigilant about these things and be careful what we allow Govt. to control.
http://www.nzcpr.com/forum/viewtopic.php?f=3&t=927&p=26998#p26998
http://www.nzcpr.com/forum/viewtopic.php?f=3&t=245&p=26909#p26909
Vote:December 17th, 2009 at 7:19 am
I’m with Viking2
Govt is blunt at the best of times.
I’d like to see hackers and companies who put stuff on our hard drives without our permission treated as if they’d committed burglaries by breaking in to our domain.
That would be fair.
This law has come around because people steal.
It’s as simple as that.
If you have music or movies you didn’t pay for and therefore you own them, then you are a thief as you didn’t.
how hard is that to understand?
We should prosecute people for theft or handling stolen property.
not condone it by saying nothing.
maybe if we stopped them in the street and looked at their Ipods and if they can’t prove they own all the copyright then prosecuted them, people might take notice.
What if their employers sacked them for bringing stolen materials into work etc etc.
Now that would be forward thinking, imagine after 10yrs work experience getting the sack because of your theft!
The acceptance of stealing by people is the problem here not the Govt trying to do something about it.
I think we’ve got things arse about face on this issue.
A thief is a thief no matter the excuse.
Vote:December 17th, 2009 at 8:20 am
When distributors stop adding unskippable trailers and anti-piracy shit on DVDs and Blu-rays that I’m paying a king’s ransom for at legitimate retailers, then maybe I might give a damn
Vote:December 17th, 2009 at 9:29 am
>how hard is that to understand?
It is very hard to understand.
When I buy a DVD – what do I buy? I’ve never found the supposed licensing agreement that governs my use of that DVD?
Can I watch it on any device? Can I back it up? Have I bought a license to watch the movie? When I lose the DVD, do I still have a licence to watch the movie, can I download another copy? In another format?
When I visit a website – do I have explicit rights to view their imagery? What about their video?
Copyright is not straightforward as you state or imply.
Vote: