An own goal

Andrea Vance at Stuff reports:

Fierce protest erupted last night as the Government rushed through legislation that could cut off internet users.

Opponents took to social media sites such as Twitter to revive the 2009 “blackout” protest that brought about the redrafting of the controversial illegal-file-sharing legislation.

The replacement (Infringing File Sharing) Amendment Bill, which aims to stamp out internet piracy, is expected to pass through its final stage today. The new law would allow owners to ask for a six-month suspension of the internet accounts of those who repeatedly infringe by sharing protected material. …

In November the select committee suggested a change to allay fears. Although the legislation still has a provision that allows for disconnection, this can only be enacted on the recommendation of the commerce minister by an order in council. It must be proved that other sanctions such as warnings taken over a two-year period had not proved effective.

Up until this week, the Government had followed pretty much a model policy process in rewriting S92A, but the decision to pass it through the remaining stages under has led to the backlash, and has in fact over-shadowed the many positive changes the bill makes to the current law. It is, to be blunt, an own goal.

It ironically happens the same day as my blog post with Grant Robertson about over-use of urgency – which the Herald has reported on.

I’m quite understanding the Government has a big legislative agenda and needs to use urgency to clear the order paper before the election. But in this case they could have avoided unnecessairly alarming people by not having included the third reading of the law in the urgency motion, and having that debated the following sitting week.

To put things in context, I want to cover the process to date on the bill, and also the policy changes from the current law which was passed by the previous Government and Parliament. The previous Parliament passed a law requiring ISPs to have policies to terminate Internet access of repeat copyright infringers. This provision was thrown out by the Select Committee, but stuck bakc in by then Minister Judith Tizard (and supported by both major parties – kudos to the Greens who voted against).

The previous law was unworkable and would have led to ISPs having to act as judge, jury and executioner and people would have lost Internet access on the basis of unproven and untested allegations. The blackout campaign (which I helped with) resulted in the new National Giovernment suspending s92A from coming into operation, and they set up a process to amend it.

As I said, the process up untul this week had been pretty first class. It was:

  1. Set up a working group to consider options
  2. Working group proposes a policy
  3. Feedback sought on proposed policy, changes made
  4. Minister releases cabinet paper on proposed policy
  5. Feedback given to Minister on proposed policy, changes made
  6. Minister introduces bill
  7. Select Committee hears submissions
  8. Select Committee makes changes and reports back
  9. Further submissions are made to Minister asking for “technical improvements” by way of SOP at Committee of the Whole stage
  10. Minister agrees and introduces SOP

As I said, up until now the process has been consultative, considered and in my opinion at every stage the bill has got better and closer to what Internet users want (but still not ideal – I will cover that later). The process has stretched out over two years, and has been far from rushed.

The bill was reported back from Select Committee on 3 November 2010. So it has been sitting them for five months waiting for a second reading. And then suddenyl we have second reading, committee of the whole stage and third reading in (almost) one day. This is what has led to the protests – the public don’t like having multiple stages of a bill gone through in one day.

As I said, Im not arguing using urgency to progress the bill – just don’t do all remaining stages in the one urgency session – that is hat has turned what should be a good news story into a bad news story.

Now let’s turn to the substance of the policy of the bill. As I said previously, it is a big improvement over the former law. And the really nice thing is that at every stage we have managed to get some further wins  but that is perhaps a reflection of how bad the old law was.

Here’s what I blogged in response to the Cabinet paper:

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.

And then in response to the select committee:

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 whole 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.

 In relation to the third to last bullet point, we got a further partial victory on this with the Minister introducing a SOP to clarify that you don’t need to prove yourself innocent. Rick Shera has said that the SOP may not fix the problem entirely, but it is an improvement.

I said in my last blog post:

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.

The Greens have consistently voted against termination being an appropriate punishment, and I support them on this issue. Over the years I’ve had several meetings with initially Nandor and then Gareth Hughes on this issue, and they have been excellent to deal with.

Chris Carter and Hone Harawira also voted to remove termination, so pleasing to see them vote with their consciences outside a party whip.

Amongst the opposition, Clare Curran deserves recognition for moving Labour from having supported the original S92A, to a policy position where Labour is against termination as a response to copyright infringement. At select committee they did a deal with the Government where the termination option was “put on ice” as a compromise and I think that’s a good example of an Opposition being constructive and gaining improvements in a bill rather than just engaging in rhetorical opposition that achieves little.

It would have been nice to get termination removed entirely. But over the last two years we got it changed from ISPs terminating upon accusation, to having a tribunal process. We then get termination removed as a “punishment” for the tribunal and restricted to the courts only. And finally got even that suspended as a punishment, so that it can’t be used unless there is an order-in-council to reactivate it.

Overall I’d say those on the “Internet side” got around 80% of what we wanted, and the rights holders didn’t get anywhere near what they wanted. Their biggest “loss” is the fact they will have to remimburse ISPs for their costs if they want an infringement notice sent to their customers. this will provide a significant economic incentive for rights holders not to file hundreds of thousands of notices.

Overall I think Simon Power has done well on this issue, with the exception of the use of urgency for the remaining stages. The policy process of the last two years was good, and the changes made to the law have overall been beneficial.

Again it is a pity that what had been a good news story for the Government has turned into a bad news story, due to the use of urgency.

Once the bill passes into law today, that isn’t the end of the issue. MED will be working on some regulations around the law, and one essential one will be setting the cost per complaint notice that rightsholders have to pay to ISPs. If it is set too low, then it would punish ISPs and encourage a huge torrent of complaints.

There is likely to be some sort of consumer guide to the new law also, so people understand what may happen if they download copyrighted material without paying for it after 1 September.

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