The new Section 92A

February 25th, 2010 at 3:29 pm by David Farrar

introduced this week the bill to amend and replace the S92A law. It is called the Copyright (Infringing File Sharing) Amendment Bill.

As I blogged at the time, the Government’s Cabinet paper on the new law wasn’t bad, and a big improvement on the existing S92A. There are still provisions I don’t agree with, but the worst aspects were gone.

The draft bill is actually, in my opinion, a slight improvement on the Cabinet paper. The Cabinet paper had a number of potential fish-hooks in it – such as the possibility one could get multiple infringement notices, for alleged infringing that occurred at the same time. detailed to the Minister a number of these fish-hooks, and it is pleasing to see that officials (and presumably the Minister) took account of these in drafting the bill.

in the Herald comments:

Under the new bill, offenders will receive three warnings. First a detection notice, which is then followed by a warning notice should the internet subscriber be accused of infringing copyright again.

An enforcement notice is finally issued that could see third time infringers being fined up to $15,000 or have their internet disconnected for up to six months.

Giving credit where credit is due, the Bill does incorporate time frames within which subsequent infringement notices cannot be sent, giving accused infringers time to amend their copyright infringing ways.

As I said previously, this is a quite important thing. Generally there is a gap of three weeks┬á from the first “strike” until any alleged infringing can count for a second strike and so on.

The new bill also allows accused for copyright infringers who feel they have been unjustly accused to apply to have their case heard by a Copyright Tribunal at no cost.

This is definitely a good thing as the scope for wrongful accusations is potentially massive. Take, for example, the number kiwi broadband users using of Wi-Fi broadband routers.

Yes, that is good that you do not have to pay to defend yourself. Also your identity is protected, unless you are found liable.

ISPs are also going to be burdened with the costs under the new bill. Matching internet subscribers to IP addresses supplied by copyright owners, and keeping track of the three strike process is, at best, going to be a deeply complicated undertaking and likely a costly nightmare as well.

While some of these costs will be met by copyright holders paying to lodge infringement notices, most ISPs will be left with little choice but to pass costs onto their subscribers.

The level of fee which ISPs can charge is likely to be set by regulaton. It is a concern that the fee will probably only cover their variable costs of each notice, and not the very large one off capital costs of reconfiguring their systems to record such info.

While copyright owners can ask for repeat infringers to be disconnected, they must do so through the courts and disconnections will last for up to six months.

This is good in that courts are geared up to hear both sides of any infringement argument and will bring some much needed legal rigour where it was lacking in the previous bill.

I don’t think termination is an appropriate penalty, plus it will largely be ineffective. But having said that, I welcome the fact it can only be done by a court after due process.

Whilst the Copyright (Infringing File Sharing) Amendment Bill represents a step in the right direction (especially when compared to the original bill), it still incorporates some serious flaws.

Worse still, it could prove ineffectual as most serious infringers are will utilise encrypted virtual private networks to avoid detection by copyright holders.

I think there will be a fairly big drop in copyright infringing downloads (and that is not a bad thing), resulting mainly from people receiving an alleged infringement notice. Overseas cases have indicated over 50% of people stop downloading such material if they receive such a notification.

Those that carry on regardless tend to be very dedicated, and will probably just move to networks which hide their IP addresses.

I hope all parties in the House will support the bill at first reading, as it is a big improvement on the status quo. Once it hits select committee, I will encourage people to make submissions to improve the bill further.

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16 Responses to “The new Section 92A”

  1. dime (9,424 comments) says:

    hmmmmmm its basically gonna nail people that use torrents?

    if one were to use rapidshare, one should be ok? :)

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  2. oob (194 comments) says:

    Seedbox located in a data centre of a liberal European country/corrupt Eastern-bloc country.
    +
    Access seedbox exclusively with HTTPS, SSH and SFTP.
    +
    LUKS or similar on-disk encryption of local storage.
    =
    Prove it.

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  3. davidp (3,540 comments) says:

    What will protect people from having their identities revealed when someone with an IP address claims to be a copyright holder and makes a complaint to an ISP? Will this require a court order?

    [DPF: The ISP does not reveal the name of the user. They will probably just be given a reference number]

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  4. davidp (3,540 comments) says:

    So I’ve read the bill and while people’s identities are protected, it requires ISPs to handle the notice-issuing process. We can forget about cheaper broadband for a long while to come, because managing this task is going to be expensive for ISPs.

    I didn’t see any provision for awarding costs to people falsely accused. Either for them to write challenge notices, or to defend themselves in front of a tribunal. That is bad. Computer forensics investigations are expensive.

    But you could have a bit of fun with this. Find out the IP addresses of organisations you don’t like: IRD, Green Party, Dianetics, The Standard, etc. They’re all publicly available. Then complain to their ISP. There is a good chance that the infringement notice will be missed by whoever receives them. Sometimes the person responsible will have left the organisation and the organisation won’t have updated its contact details. Then sit back and enjoy watching them run around defending themselves against your allegations, or watch them fall off the Internet. This is probably going to be the easiest way to denial of service a government department or corporation.

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  5. Tassman (238 comments) says:

    I know, it’s called File Sharing for the government and its masters but a copyright infringement for anyone else. That way, they can withdraw the profit and claim a loss at the BNZ for another hand out. And when caught, it’s all public shows resignation until later… Whada #@&!

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  6. Chicken Little (793 comments) says:

    So let me get this straight – We, the consumers, are going to pay the tab through ISPs increasing costs, for copyright holders to uphold their copyright?

    What a load of crap. If they want to uphold their copyright they should be responsible for ALL costs. They need to pay the ISPs whatever it costs to set up these new systems.

    As Davidp points out above – the opportunities for mischief are great and with such a unfair ( to consumers ) system in place much mischief should be made. Grind it into the ground.

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  7. RBNZ (1 comment) says:

    End result will be that most people will get into end to end encryption. If you’re savvy enough to download a torrent you’re smart enough to get around these rules.

    Old folks and internet newbies will be in trouble.

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  8. diogratia (9 comments) says:

    “The new bill also allows accused for copyright infringers who feel they have been unjustly accused to apply to have their case heard by a Copyright Tribunal at no cost.”

    This is still guilty until proven innocent, more in keeping with the precepts of Napoleonic law than English common law. Looking at 122L through 122N we find that you don’t have the right to legal representation and you can be in jeopardy for a fine up to $15,000, and a finding of the tribunal can be enforced as if by a District Court. There is also no statement in support of Part 2 27 (2) of the Bill of Rights Act (” Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.”). Further while it makes for tidier and perhaps speedier proceedings without the right to appeal or the right to counsel how can this be justice? There is no defined process for establishing fact other than opinion of the tribunal members and to a lesser degree the ISP and or the accusing copyright owners. It’s ‘legal’ theater allowing an infringement action to proceed outside the proper venue – a District Court – with an easier time of it passing the costs of prosecution to the accused.

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  9. JiveKitty (869 comments) says:

    ISPs should have nothing to do with it.

    Some quotes from a lecture given by Bronwyn Howell of the New Zealand Institute for the Study of Competition and Regulation:

    “Whilst the internet may facilitate infringement, ISPs are limited in their ability to monitor and enforce as they are not party to the copyright agreement.”

    “Thus we conclude that the logical electronic intermediaries to facilitate the low-cost monitoring and enforcement of digital works subject to copyright are not ISPs but distributors.

    Moreover, the simplicity and alignment of incentives of the Walled Garden model confirms that in principle, the traditional copyright law principles are robust to cope with changes in technology.”

    Further information here: http://www.iscr.org.nz/n536,53.html. (Note that I am not affiliated with this group in any way.)

    @RBNZ: re: encryption. I agree.

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  10. GT (44 comments) says:

    Honestly, this is now small fry. The elephant in the room is the ACTA agreement that is being negotiated in private. Indeed, all we seem to hear about ACTA these days is from the leaks that keep coming out on WikiLeaks. S92 is only being implemented so that we come in line to be able fulfill our roles under ACTA.

    http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement
    http://www.kiwiblog.co.nz/2009/12/acta.html

    DPF – would be good to see more coverage of ACTA leading up to the Wellington meeting in April. More people need to know about what the US are trying to impose globally.

    [DPF: Yes I will devote more space to ACTA]

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  11. infused (636 comments) says:

    More bulllshit. The world is laughing at us.

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  12. Banana Llama (1,105 comments) says:

    http://phoenixlabs.org/pg2/

    So hard how do i internet┬┐

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  13. longbow (130 comments) says:

    p2p guardian + encrypted protocols zzz

    and yes, ISP should have nothing to do with it

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  14. Michaels (1,317 comments) says:

    Stupid stupid law.
    Questions:
    1. What will happen if I log onto someone’s unsecure wireless and download something?
    2. What will happen if I take my own coffee to Starbucks (can’t drink theirs) and use their wireless?
    3. Will gas stations start phoning the police with cars that aren’t registered?
    4. Will bottle shop owners phone the police if they believe someone has had to much to drink?
    5. Why not just a heavy fucking fine and the payment can go directly to the copyright owner?

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  15. GT (44 comments) says:

    For those promoting PeerGuardian, it appears that it is no longer being actively developed, and indeed Phoenix Labs are recommending moving to PeerBlock – which is based on PeerGuardian.

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  16. JiveKitty (869 comments) says:

    What happens to households/flats with multiple computers and multiple users but the internet only in an individual’s name?
    Why are ISPs involved in this at all?

    A regressive law, and all because an industry refuses to evolve and ignores the power its customers do have.

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