Copyright termination terminated – for now
Overall the changes made by the Select Committee to the Copyright (Infringing File Sharing) Amendment Bill represent an improvement. I’m especially pleased that they have effectively shelved for now the termination provisions, as I thought that would set a bad precedent. What are the changes?
- The definition of an ISP has been narrowly defined to cover traditional ISPs and exclude universities, busineses and the like who might provide Internet access but are not really ISPs. This is a good change
- The definition of file sharing has been tightened so it won’t cover downloading a single file off a website etc. Has to involve using file sharing technology. Also a good change.
- Those given notices have an extra week now to challenge them – also good.
- ISPs are no longer required to consider whether to accept, reject or refer on challenges to rights holders – all challenges get passed onto rights holders
- No lawyers at Copyright Tribunal hearings unless very good cause. Yay.
- Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof. Different rights holders may establish different levels of reliability. I hope the Government will consider amenemdents to this at committee of the whoel stage.
- The committee have said that any damages should include a punitive element, and not merely compensation. I partially agree. Compensation only would not provide any disincentive. However any punitive damages should be linked to the level of lost revenue. I see it like the IRD with 100% penalties. If you download $100 of music then you could get fined say $200 and if you download $500 of movies then the fine may be $1,000. But if the punitive damages are unliked to the offending then you may have someone fined $15,000 for downloading one song.
- The provisions for a Court to order an Internet account to be suspended for six months have themselves been suspended. The Minister can activate them by order in council, but only if other penalties are seen not to have worked. Not a bad compromise. I;d rather no provision at all, but this is a lightyear better than what was in the law passed by Judith Tizard and Parliament in 2008.
The Greens have said they support the bill going forward, but think Internet suspension should be out of there entirely – not just held in reserve. I agree.
Ai I said, overall this improves the bill, and the bill itself was a huge improvement on the old S92A. MPs, and Simon Power, have done a good job of dealing with some challenging and complex issues.
However, the bill can be made better still – a universal burden of proof assumption is not warranted, and I hope MPs will consider further enhancements to the bill at the next stage.
November 4th, 2010 at 10:28 am
Well done to all who have worked for modifications. The Internet is the last frontier for the rules/bans/controls crowd and we have too many of them in Parlaiment – and in NZ. The freer the better. I still think the accuser should have to prove harm or loss, with copying no offence as it is so ingrained in so much of our life and society that it cannot be made a crime on its own.
November 4th, 2010 at 10:29 am
>If you download $100 of music then you could get fined say $200 and if you download $500 of movies then the fine may be $1,000.
I have a problem with any sort of penalties for downloading material. If someone is offering material for download then it is safe to assume they are aware of the ownership of that material and can be held liable for any infringing material they are hosting. But it isn’t reasonable for a downloader to determine ownership of material and whether or not the person hosting the material is the owner or has authorisation to offer it for download BEFORE downloading the material.
>The definition of file sharing has been tightened so it won’t cover downloading a single file off a website etc. Has to involve using file sharing technology. Also a good change.
I’d like to see this in action. Web servers are by definition a method of sharing files.
November 4th, 2010 at 10:42 am
Great article, we’ve linked it from our site.
The reversal of the presumption of innocence is particularly dangerous because of the poor quality evidence that’s historically been given. Often the methods of detection are considered a trade secret and the software is protected by copyright and not available (even to the courts).
The business compliance costs of proving that you didn’t do it would involve buying hardware to track all network activity, and we estimate that this would cost $1,500. We’ll continue to ask for some studies of the compliance costs around this.
Regarding, “The definition of file sharing has been tightened so it won’t cover downloading a single file off a website etc. Has to involve using file sharing technology. Also a good change.”
The suggested definition reads,
“file sharing is where—
(a) material is uploaded via, or downloaded from, the Internet
using an application or network that enables the simultaneous
sharing of material between multiple users;
and
“(b) uploading and downloading may, but need not, occur at the
same time”
Unfortunately this is still a loose definition and it covers websites, chat, etc. Many websites are using live technology sch as Flash sockets and HTML5 Websockets and this is increasing. The proposed definition seems to overlap with that of Section 92C (webpage takedown based on allegations).
November 4th, 2010 at 11:15 am
The whole bill is bullshit. If anyone is to punished it should be the host of the content for making it available. It’s not always easy to tell when you may be committing piracy when downloading. File sharing technologies are used for thousands, if not millions of legal downloads everyday.
November 4th, 2010 at 11:37 am
EverlastingFire… That was my point, altho you’ve stated it much better. As an analogy… If TV news broadcast some copyright material that they didn’t have rights for, then are they liable OR all the people who viewed the news report? The principles behind this law say that the viewers are at fault, and should have their TVs confiscated if Simon Powers says so.
November 4th, 2010 at 11:41 am
So far the only justification I’ve heard for the presumption of guilt is the claim that the evidence will be so good that there’s no need to presume innocence.
The problem is that these claims haven’t ever been substantiated, and yet if they form the basis of this law we can’t test them. I hope the Select Committee weren’t told a fishy tale about how all the problems have been fixed because they haven’t. If anything the technical issues have become more complex.
Historically the statistics have not been on the side of those who would like to presume guilt: A University of Southern California report on US copyright infringement has found that businesses targeting competitors account for more than half (57%) of all claims. The same report shows that over one third (37%) of claims of copyright are invalid. Within New Zealand Judge David Harvey has commented that 30% of copyright litigation fails due to a failure to prove ownership of copyright, or due to the copyright in question not being governed by New Zealand law. A recent OECD study into online crime has found that 25% of computers are infected with viruses that download and distribute material without the owners knowledge. ISPANZ estimate that 90% of NZ businesses use Network Address Translation (NAT) technology to connect their employees to the internet, and most NAT networks don’t have hardware capable of tracking usage.
@EverlastingFire The difficulty of identifying legitimate downloads was recently shown when a tech savvy journalist bought movies from a dodgy Russian site,
http://www.stuff.co.nz/technology/blogs/connector/3956331/Dying-to-download-part-2
November 4th, 2010 at 11:53 am
Matthew… I used to be involved in IT security and have handled a few infringement notices served against an Australian state government network by the motion picture people. None were found to be valid. In most cases the non-NATed IP addresses resolved to subnets that weren’t active. In one case they stumbled across an address that was actually in use, but we didn’t find any P2P software installed and our own gateway logs didn’t support the traffic they were claiming.
The infringement notices were also shockingly amateur. US phone numbers listed without an international prefix, statements of US law that obviously didn’t apply to us, times given with a US time zone rather than UTC, etc. I don’t trust these rights holders at all, and it is expensive to follow up their complaints.
November 4th, 2010 at 11:57 am
What’s $100 worth of music? It costs nothing to copy an mp3 file, so in my opinion the music is worth nothing. I have not deprived the copyright holder of anything when I torrent a movie I was not going to pay for anyway.
The government should forget about this costly restrictive law. It will not help any NZer or any NZ business. What a waste of their time and our money.
November 4th, 2010 at 12:06 pm
Regarding the ratio of downloads to lost sales, the major label’s own international lobby group the IFPI only attribute 10% of infringing downloads to be lost sales (in their “Digital Music Report 2009″)
November 4th, 2010 at 2:44 pm
Clearly the thousands of jurists through the centuries who’ve upheld the presumption of innocence as a foundation of the fairness of jutice were intellectual pygmies compared to a suburban solicitor from Palmerston North. Thank goodness we have a great legal mind, well versed in the intricate complexities of property conveyancing and defending a bit of petty larceny, to show us the way.
How long before the aptly named Mr Power decides the burden should shift to the accused in criminal matters? After all, he keeps telling us the courts are clogged and we need “efficiency”. I hear ducking stools are a reliable means by which someone accused can prove a negative.
Hurry and get those 3rd world sweat boxes stacked up, Judith, Simon has a delivery for you.
November 4th, 2010 at 2:46 pm
As long as we don’t get into a situation like this: http://news.cnet.com/8301-1023_3-20021735-93.html?part=rss&subj=news&tag=2547-1_3-0-20
Stupidest thing I’ve ever seen.