Kiwiblog

Charlie Gates at Stuff reports:

The first New Zealand cinema census of 4000 people found 62 per cent went to the cinema once a month, with 27 per cent seeing as many as three films a month.

It also found 51 per cent regularly downloaded movies, but 87 per cent of those did not pay for them.

Only 40 per cent of respondents were opposed to illegal downloads. The survey was conducted by movie website flicks.co.nz, and 48 Hours and Incredibly Strange film festivals creator Ant Timpson.

Flicks managing director Paul Scantlebury said he was surprised by the number of people illegally downloading films.

He said people turned to the internet because movies were shown in New Zealand much later than the rest of the world.

“Everyone is online and knows a movie is out and is good, but often it will be out on DVD in the US before it is out in the cinema here,” he said. “iTunes is not really much better. The legal way of doing this is not very good.

“If there was a viable, legal and local option, people would use it. It is sad because people are forming habits and learning new ways to access movies.”

Exactly. If you do not make movies available legally, this means that the only way to see a movie in a timely manner is to access it illegally. Isn’t that sort of dumb?

However, Motion Picture Distributors’ Association chairman Robert Crockett said illegal downloads could damage an industry that sustained 22,000 New Zealand jobs. “This highlights the issue that there is illegal downloading and we need to do something about it as a creative industry,” he said.

“I think most people want to do the right thing if they know that what they are doing is illegal and has a cost locally.

“I’m sure they will choose to do the right thing if they are given a viable and legal option to do so.”

Exactly.

Top copyright law professor Michael Geist blogs on how Wikileaks revealed the extent of the US lobbying pressure on our copyright laws:

Wikileaks has also just posted hundreds of cables from U.S. personnel in New Zealand that reveal much the same story including regular government lobbying, offers to draft New Zealand three-strikes and you’re out legislation, and a recommendation to spend over NZ$500,000 to fund a recording industry-backed IP enforcement initiative.

Yes, the US Embassy actually offered to do the rewrite of Section 92A. Thanks, but no thanks. We’ll write our own laws thanks.

Geist also notes:

Finally, an April 2005 cable reveals the U.S. willingness to pay over NZ$500,000 (US$386,000) to fund a recording industry enforcement initiative. The project was backed by the Recording Industry Association of New Zealand (RIANZ) and the Australasian Mechanical Copyright Owners Society (AMCOS).  Performance metrics include:

“The project’s performance will be judged by specific milestones, including increases in the number of enforcement operations and seizures, with percentages or numerical targets re-set annually.  The unit also will be measured by the number of reports it submits to the International Federation of the Phonographic Industry (IFPI) on its contributions to IP protection and enforcement methodology.”

The proposed budget included four salaried positions, legal costs for investigation and prosecution, and training programs. The RIANZ still runs an anti-piracy site, but does not include disclosure about the source of funding.  It certainly raises the question of whether New Zealand is aware that local enforcement initiatives have been funded by the U.S. government and whether the same thing is occurring in Canada.

The current S92A is not too bad (but it should not have termination as an option), but the real danger is the TPPA negotiations. The US is demanding as part of those negotiations a total rewrite of our intellectual property laws in their favour. This is a price we should not be willing to pay, unless the trade gains from the deal are massive. To date the NZ Government has been resisting the demands. I hope they continue to do so.

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 Copyright (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 copyright 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 urgency 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.

Few people are more enthusiastic advocates of free trade than me. I basically want to see a world without trade barriers.

The path to free trade is difficult due to entrenched interests. The best path is a multi-lateral agreement such as the GATT agreement which set up the WTO. Failing that, bilateral trade deals are worth pursuing. The China-NZ FTA, for example, has already led to a huge increase in exports to China. And CER with Australia is part of our economic DNA.

Personally I think bilateral free trade agreements are far too complex. My ideal FTA would be as follows:

1. Country A agrees that the businesses and residents of Country B can sell any goods or services they like to the business and residents of Country A, so long as they are legal in Country A.
2. Country B agrees that the businesses and residents of Country A can sell any goods or services they like to the business and residents of Country B, so long as they are legal in Country B.
3. There shall be no duties, tariffs or other barriers on exports or imports between Country An and Country B
4. ENDS

NZ is currently negotiating a free trade agreement, called the Trans-Pacific Strategic Economic Partnership Agreement, or TPP.

The TPP is now a brand new agreement. It is an extension to an existing agreement between Brunei, Chile, Singapore and NZ called the P4. Five additional countries are seeking to join it – Australia, Malaysia, Peru, Vietnam and the US.

Now New Zealand would gain immensely from free trade with the United States. One study estimated our exports to the US would increase by 51%. That’s an extra $2b a year approx.

So free trade with the USA would be great. But sadly free trade agreements are not as simple as the one I wrote above. They include areas which are not about reducing tarrifs, such as intellectual property laws. The United States wants New Zealand to agree to change our intellectual property laws, as part of any TPP agreement.

Top IT lawyer Rick Shera, has done a guest post at Public Address on what the US is asking for. I highly recommend you read his post in full. A summary is:

• Rights holders would be allowed to prevent parallel imports
• Massive extension of copyright terms, from life of author plus 50 years, to 70 years
• Circumventing a Technological Protection Measure (TPM) will to be a criminal offence even if the work it protects is in the public domain or you want to exercise fair dealing rights like educational use or current affairs reporting
• The return of guilt upon accusation three strikes Internet termination laws
• Forcing us to reverse the decision recently taken to exclude software from being patentable
• Introducing statutory damages (which give rights holders windfall damages up to 3 times their actual losses)
•  ISP policing of IP rights including a requirement for ISPs to give up their customers’ identities when they receive a mere allegation from a rights holder
• Criminal liability even where the infringement has no commercial value at all
• Pushing Courts to impose imprisonment as the default sentence for infringement even where no monetary benefit is obtained

Bloody nasty isn’t it. And it is not as if NZ is a country with weak copyright laws. The Property Rights Alliance do an annual index of property rights. Their 2010 report for New Zealand ranked NZ the 4th best country (out of 125) in the world for (lack of) copyright piracy.

The New Zealand Government position has been to reject these provisions, which is good. But at some stage, there will be some calls to be made and compromises to occur to get an agreement.

This will pose a challenge for free trade advocates such as myself. Is allowing the United States to rewrite our copyright laws, a price worth paying?

Well if it was a true free trade deal, where the United States agreed to phase out all (or at least the vast majority) of its tariffs, then yeah it might be. An extra $2b a year of exports would create a lot of extra jobs, extra investment, extra wealth and extra tax revenue.

But what if we don’t get the US to agree to let in our lamb, our beef, our wool, our milk, our fruit without restrictions? What if the lowering of trade barriers is modest at best? This can not be ruled out – the US/Australia free trade agreement was very modest in terms of lowering trade barriers.

Eric Crampton has blogged on the TPP agreement. I know Eric well enough to confidently say that he is probably just as big a fan of free trade as I am. However he is pessimistic about the TPP:

I suggested New Zealand might do best by sidelining the US for now. The biggest potential gains to New Zealand from a free trade deal with the States would be an opening of American dairy markets to New Zealand dairy products. But that won’t happen – a trade deal that would actually open up American dairy markets to New Zealand product would never make it through the Senate.

The actual economic impact on the US of allowing dairy competition would be minor overall. But it would create a political fuss in certain states which would make it very difficult for Obama to ignore.

Eric continues:

I’d put decent money that, if America signs onto the deal, there’d be years of costly arbitration before New Zealand had any kind of increased access to American dairy markets. For starters, American dairy farmers would argue that failure of the New Zealand competition authorities to prosecute New Zealand dairy cooperative Fonterra as a monopoly constituted a subsidy under US law and justified counterveiling duties. …

I don’t think the United States has any credibility on free trade when it comes to agricultural products. They can’t make time-consistent pledges. At point of signing it’s all friendly, then you’re straight into arbitration over whether you’re hurting US domestic competitors – never mind the benefits to American consumers who are paying double what Kiwis are paying for baby formula.

His solution:

And so it’s better that New Zealand sidelines America in the Trans Pacific Partnership negotiations so the rest of us can have a serious free trade zone. Get a serious free trade zone, then look to widen it by inviting China. The threat of a Pan-Asian free trade zone that includes China is about the only thing I can imagine that would bring the States around on agriculture. Since New Zealand already has a free trade deal with China, it’s not implausible that China could someday join the TPP.

The idea of a TPP without the US may sound implausible, but I think it is more important to have a high quality agreement that actually reduces trade barriers and doesn’t force IP law changes on us, then a free trade agreement that is more symbol than substance. John Key I believe wants this too – he basically told Japan to stuff off from the TPP negotiations, unless they were seriously willing to commit to a “high quality” agreement.

The same attitude should apply to the US. If at the end of the day we can’t get decent lowering of trade barriers, and they insist in trying to force draconian IP laws on us, then we should be willing to say that we’ll go ahead with Australia, Malaysia, Peru, and Vietnam joining the P4 – and leave the US for another day.

Both the Daily Show and the Colbert Report are no longer available on Sky, on the NZ Comedy Central channel.

Aaaaarrrrgh.

I don’t know who made the decision, but I’d like to shoot them. Both those shows were on my daily record series.

If you want to help push for their return, you can join the Facebook Group asking for that.

And people wonder why people use bit torrent? I pay almost $100/month to Sky so I can legally view overseas content such as the Daily Show. Take away my only legal way of viewing it, and well what a great incentive you give me.

Stuff reports:

Smash-hit Kiwi film Boy has been illegally uploaded on to the internet, potentially slashing the earnings of its investors.

Boy is a great movie. I went to see it at the cinema and blogged about it here.

It is a shame it has been placed on the Internet, but not surprising.

The Taika Waititi-directed flick has had huge box office success, going on to gross $8.4 million at the box office since its release in March, placing it third on an adjusted list of all-time New Zealand film takings.

Worth noting this. Despite the downloads, it has been very profitable.

However, with it yet to be released overseas and on DVD, its availability online is expected to curtail its future earnings.

And this is why of course people placed it on the Internet – there was absolutely no legal way anyone overseas could pay for it and view it, and no legal way anyone in NZ could buy it to view at home.

The days when movie companies can release it for cinemas, but not for individual purchase is fast dying – just as the days when we had to wait six to 12 months to see a US block buster in NZ cinemas have faded.

The world is now one global market. Try and maximise revenue by only releasing it to one segment of the market, and the response is entirely predictable – it only takes one person out of five billion or so to place it online.

Boy has been a fantastic success. Kiwis overseas have heard about it and want to view it. When you make it impossible for them to pay to see it, no surprise that they will turn to the only way they can see it – file sharing.

The last time a Kiwi film was illegally copied, it cost investors about $1 million.

Jesus, I wish media would not print assertions as fact.  Assuming that every downloaded copy is a lost sale is economic lunacy.

Just finished this submission. Now working on my electoral finance one. Curses they both close today.

SUBMISSION OF DAVID FARRAR
TO THE COMMERCE SELECT COMMITTEE
ON THE COPYRIGHT (INFRINGING FILE SHARING) AMENDMENT BILL

About the Submitter

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
2. I appeared before the Committee in 2007 on the Copyright (New Technologies) Amendment Act 2008 where the removal of S92A of the principal act was advocated, and agreed to by the Committee. It was later reintroduced at the Committee of the House stage.

Executive Summary

1. I support the Copyright (Infringing File Sharing) Bill as a huge improvement on the current S92A of the Copyright Act.
2. I believe the provisions allowing for suspension of a person’s Internet account should be deleted as an unproportional response, and a bad precedent.
3. There are a number of other desirable amendments to the bill, which would in the main be considered technical improvements.
4. I urge the Committee to try and obtain quality research on the level of economic damage caused by personal non-commercial file sharing, and whether the proposed tribunal regime is justified in terms of the taxpayer investment into its costs

   The overall bill
   

5. I congratulate the Government, and especially Commerce Minister Simon Power, for his response to the problems highlighted by S92A.
6. The policy consultation and development process was robust and inclusive, and the policy outcome as laid out in this bill is generally well balanced. This was reflected in the unanimous support for this bill at first reading.
7. The critical features of this bill are
   * that the law will no longer presume guilt upon accusation
   * ISPs do not have to act as a judge in any disputes
   * rights holders gain the ability to send notices to alleged infringers
   * users have their privacy protected
   * ISPs can charge a fee to reflect the cost of processing and data matching infingment complaints
8. * That any tribunal action can only happen after ongoing alleged infringing

   Suspension of Internet Access as a penalty

9. I appreciate that the bill has considerable safeguards around the provision to allow suspension of an Internet account – specifically that the power is reserved to the Court, not the Tribunal, and that the circumstances in the proposed s122O(3) must be taken into account.
10. However I believe that it would be a very bad precedent to pass a law which has suspension of an Internet account as a penalty.
11. The Internet is a utility, much like power, water, and phone. It has become essential to many New Zealanders, and in fact the Government itself requires certain transactions to be done online, such as company annual returns.
12. If someone grows cannabis plants in a heated glasshouse at home, we do not give the courts the power to suspend their electricity account for six months. We charge them for the offence.
13. If someone sends a threat by fax machine to the Prime Minister, we do not give the courts the powers to suspend their phone line for six months. Instead we charge them for the threats.
14. Even with other highly undesirable activities on the Internet, we have not given the courts the power to suspend or terminate an Internet account. Many would agree the worst material on the Internet is child pornography. If someone is convicted of trading in child sexual abuse pictures, they may get sent to jail, or fined. But the court does not have the power to suspend or terminate their Internet access.
15. For what is a civil, not even a criminal, offence of copyright infringement, a punishment of Internet access suspension is grossly disproportional.
16. While it is unlikely to be used often, it would set a very unhealthy precedent.
17. I recommend that the Committee delete the proposed sections122O and 122P. Also a consequential deletion of S122Q(2)(e)

    Other Amendments
    

18. In s122Q(4) the date “31 September” should be replaced with “30 September”
19. Also in s122Q(4) I would propose that rather than require ISPs to publish compliance statistics on their own websites, it would be more useful for the purpose of analysis to have them submit the statistics to a government agency (probably MED) and have the statistics published in one central location.
20. A number of other technical amendments are detailed in the submission by InternetNZ, and I endorse those proposed changes.

    Research on economic damage
    

21. At the 2007 select committee hearings, I recall music industry representatives talking about how the failure to pass that law would lead to artists like Bic Runga having to flip burgers at McDonalds so she can earn enough money to live on.
22. Some rights holders produce reports stating that the economic damage is in the billions, assuming every single download of a “work” is a sale that would have otherwise occured. This ignores the fact that many downloaders “try before they buy”, or in other words download to see if they like something, and if they do then purchase it legally. This is not to condone such acts, but to point out that the assumptions over economic damage are unwarranted.
23. In Australasia, the most recent stats (from the Int Assn of the Phonographic Industry) show that music revenues are up 3.5% (physical sales down 2.4%, digital sales up 41.4% and performance rights up 8.6%) in 2009. Also APRA reported that in 2008/09 distributions to music creators increased by 10%
24. In the movie industry, global ticket sales were up 7.6% in 2009, during the worst recession in 70 years
25. Again, this is not to condone illegal file sharing, or to suggest it is of no consequence. But to put the claims of industry groups in proportion.
26. In giving the Copyright Tribunal a mandate to hear file sharing infringement claims, Parliament will be investing many hundreds of thousands of dollars into the Tribunal so it can do this work.
27. It would be prudent for members of the Committee to ascertain that they have sufficient quality research on the economic damage caused by non-commercial personal file sharing, to justify the investment of taxpayer dollars into the Copyright Tribunal’s expanded mandate.
28. An alternative is to do what Canada and the UK have done, and to simply implement a notice and notice regime, which research has shown will deter 70% of file sharers), and evaluate how that regime works, before deciding on the need for the Tribunal.

In summary I urge the Commerce Committee to recommend the Copyright (Infringing File Sharing) Amendment Bill be passed, with appropriate amendments.

David Farrar

Many readers will have seen various Downfall parodies. They have become an Internet cult. Hundreds of people have inserted their own subtitles over a four minute clip where Hitler goes beserk at his generals.

I especially enjoyed three of the parodies – Clark, Peters and Tizard in the final weeks of the 2008 campaign. Thankfully they are still up, but many other parodies have been removed due to a copyright complaint by Constantin films.

The clip above is a parody of the fact You Tube is removing the parodies.

AP report:

On Tuesday, the clips on YouTube, many of which had been watched by hundreds of thousands, even millions, began disappearing from the site. Constantin Films, the company that owns the rights to the film, asked for them to be removed, and YouTube complied.

Martin Moszkowicz, head of film and TV at Constantin films in Munich, said the company had been fighting copyright infringement for years. Jewish organisations have also complained about the tastefulness of the clips, he said.

“When does parody stop? It is a very complicated issue,” Moszkowicz said. “So we are taking a simple approach: Take them all down. We’ve been doing it for years now. The important thing is to protect our copyright. We are very proud of the film.”

The clips were in no way a commercial threat to the film. Not a single person would have not purchased the film, because of a four minute parody extract. On the contrary, it has exposed parts of the film to millions.

There is a real debate about whether the parodies would be allowable under the US fair use laws. However the DMCA can make You Tube liable if they do not err on the side of caution and remove them. It is a pity that this doesn’t go to a Judge. It does highlight the danger of adopting US style notice and takedown laws.

Abraham Foxman, national director of the Anti-Defamation League, said the league was “delighted.”

“We find them offensive,” said Foxman of the videos. “We feel that they trivialise not only the Holocaust but World War II. Hitler is not a cartoon character.”

On this issue I respectfully disagree. The parodies do not disrespect the Holocaust in my opinion.

For years, the meme has held an unusually steadfast position in internet culture. While most online parodies come and go overnight, new Downfall spoofs have been continually created for years.

It’s not known exactly how many have existed but estimates run in the hundreds.

I’ve seen a dozen myself. If done well, they never get boring.

Grant Robertson just started his speech on the S92A bill by saying he will join in the Simon Power lovefest. And Grant is right, the House has been having a Simon Power lovefest for the last four hours – a but a justified one.

The House unanimously passed the MMP referenda bill, and speaker after speaker praised Simon for the process. While some advocated for spending restrictions on campaigners, the fact the bill was passed without dissent spoke for itself.

Then we had the S92A copyright file sharing bill, and again every speaker said that the proposal developed by Simon was a huge improvement over the status quo, and was reasonably balanced.

Having been involved in this issue myself, I have to say that I agree – it is a very complex area, and the Government has done well to come up with a workable model. I still think the Internet suspension provision should go, but we’ll have that debate at select committee. Pleased to see the House unamiously pass the bill.

Fairly rare for a Minister to get two bills in a row passed unanimously, and to praise from all parties. Also good to have constructive speeches from all parties.

Back to the MMP referendum, two questions for people.

1. Should the voting at the first referendum for an electoral system to go up against MMP in the second referendum be a simple plurality option (tick one option, most ticks wins) or a ranked preferential option (ranks the four systems 1 to 4, and none get over 50%, drop off least popular option and redistribute preferences)?
2. Should the second referendum be held at the 2014 election, or held before 2014 as advocated by this petition?

I generally regard a preferential voting system as superior, but it can make things a bit more complex and put people off. However if we are asking us to pick a preferred option out of four, then is it too much to think they should be able to rank them?

The timing of the 2nd referendum is finely balanced. One wants a very high turnout for a binding constitutional change. However I think as it is a binding vote on a binary choice, we would have a high turnout even if held outside a general election. The first referendum would suffer from a low turnout if done stand alone as it is not a final vote, but the second one less so.

It occurs to me that one would get a better debate on the second referendum, if it was not held at the same time as a general election. The contest for Government will dominate the media.

So I think there is merit in looking at whether the 2014 referendum (if there is one) can be held in late 2012 or early 2013.

Peter Cresswell discusses copyright and says copying without permission of the owner is theft:

Make no mis­take, copy­ing with­out the per­mis­sion of the owner is theft–-no mat­ter how many sappy sugar-coated dit­ties you hear to the contrary.

I don’t think theft is the best word for it, but I agree it is illegal. PC notes however:

The way ACTA proposes protecting intellectual property–by going through people’s bags, laptops and MP3 players at airports; by holding ISPs responsible for what their customers do; etc.–-is hardly in accordance with the principle of property rights they purport to be upholding.

He says this violates the very principles they want to protect.

What I found most interesting is this comment by Eric Crampton on the post:

Strength of copyright protection has never been an absolute: it’s varied in duration and scope over the years. There’s a Laffer curve that operates in copyright as well: zero protection and fewer things will be produced, but too strong of protection and nothing is produced either.

Eric is right. Copyright is not an absolute right. It is a manufactured right that is about a balance of rights. Eric explains:

Let’s take the extreme case over on the right tail of the distribution. Every musician using a chord must pay a royalty to whomever invented that chord, then must pay another royalty to whomever came up with the chord sequence they’re using. Think much music gets produced under that regime? Nope. It’s too costly to produce anything new.

Another example is the right of a newspaper to quote something. If a politician writes on their Facebook page “I think the top tax rate should be 90%” they own the copyright to that statement. Would anyone want a society where it is illegal for a newspaper to report that statement, as they do not have permission of the owner?

Take it to blogs. Suppose copyright didn’t just protect the expression of an idea, but also the idea itself. Would you ever post anything, given fear of being sued by someone who’d previously come up with some idea you’d thought was original to you? Would Landes and Posner sue me for basically restating their argument in the first paragraph?

Spot on.

If you grant those two cases, then the optimal degree of copyright isn’t infinite. The optimal degree isn’t zero either. I’m reasonably convinced that we’ve pushed too far to the right on this curve: the costs of copyright in impeding new creation, at current legal levels of protection, exceeds the benefit of higher returns for those things that are created. And, I’d argue this is mostly due to Disney who earns more off its back catalogue than out of new production. The period of protection is too long, harm is done by excessive protection on orphaned works, and insufficient scope is given to fair use.

Copyright is for a specific term. If it was not, then every school in the western world would probably have to pay royalties to the great great great great great great great great grand nephew of William Shakespeare.

Eric makes a fair point that copyright protection is for too long a period. In the UK protection is for 50 years after making a sound recording, while in the US it is 120 years after creation.

Personally, I’d sooner see copyright abolished in favour of a solution through private contract where folks use creative commons to designate the strength of protection they’d like applied to their own works, but where also we’d deem the extant corpus of common culture (Grimm fairy tales, etc) only being available for commercial use if the folks making the film, book or whatever applied a duration of protection no greater than 20 years or so, helping to rejuvenate the commons from which they drew.

I am a big fan of Creative Commons which makes it easy for creators of works, to set their own terms and conditions of use.

Clare Curran blogs:

This is one of those times when the Opposition says the government’s done a good job.

Which I think it did last week in chairing the secret talks on ACTA (Anti-Counterfeiting Trade Agreement) and gently pushing for transparency. I think they’ve listened to the people who are raising serious concerns about the secret trade talks and the rights of citizens.

After more than a year of sustained pressure, the countries negotiating the Anti-Counterfeiting Trade Agreement (ACTA) decided that the time is right to release the draft text of their work.

Kudos to the Government for their part in this decision. Not only did they obviously push for transparency, but chaired the session that finally got agreement from everyone to do this.

MFAT also hosted a reception last Tuesday where local stakeholders could meet the negotiators and discuss issues. This was a welcome initiative, and I found it quite useful. Was impressed when a couple of officials told me that they actually agreed with most of the points in the Wellington Declaration. Also had interesting chats with some of the EU negotiators over their copyright laws, and our S92A.

Clare also blogs on the software patents issue:

Giving the government more credit. Twice in once day. Phew.

Now don’t let your eyes glaze over just because I’m talking about patents! I’m giving the government credit so listen up.

The Patents Bill, which is about to come back before the House for its second reading was originally crafted in 1953 it was long overdue for a redraft.

One of the most interesting changes to the Bill is  a proposal to exclude computer software from being patentable, on the basis of it being, like books or movies or music, based on a concept and receiving protection under copyright. …

And Simon Power recently announced the Government would back the Select Committee’s recommendation, which I think is the right call. This is already the case in Europe.

Many software patents have been used to stifle competition or extort money from firms. A few years back a Canadian firm, DET, sent invoices to hundreds of NZ small businesses demanding royalties as they had a patent for mulit-currency e-commerce systems. The patent was eventually disqualified, but it took considerable effort.

The NZ Computer Society has backed the proposed law change, and a poll of their members found 80% support for that stand. Their letter to the Simon Power sets out the arguments well.

Good to see an Opposition Spokesperson taking the time to say “Hey we actually think the Government made the right calls here”.

Computerworld reports:

A controversial plan to crack down on online piracy and counterfeiting will be opened up to public scrutiny for the first time next week, when the negotiating text of a secret international copyright treaty will be made public, the European Commission said on Friday.

Negotiations over the past two years have been conducted in secret. Leaks of the draft text have sparked a public outcry, mainly because of how the text deals with online copyright infringement.

Countries involved in talks on the Anti-counterfeiting Trade Agreement (ACTA) agreed unanimously to make the documents available to the public at a meeting in New Zealand this week, the Commission said in a statement.

This is excellent news and a real win for those who have been pushing for transparency. Having the draft text out there helps people make informed submissions.

However, they don’t plan to reveal their individual negotiating positions.

Which would be useful also. However the release of a draft text means the Government can be asked questions relating to that text.

I spent most of Saturday at the Public ACTA meeting in Wellington, discussing the text of the leaked draft ACTA treaty, and helping formulate what is now known as the Wellington Declaration.

The funniest part of the meeting was hearing from Michael Geist that in the Canadian Parliament that a Canadian Minister said there was no need to officially release the draft text of the ACTA treaty, as there was a leaked copy on Michael’s blogsite.

One shouldn’t have to rely on leaks, to know what is being negotiated.

Some key parts of the Wellington Declaration:

Consistent with the European Parliament’s Resolution of 10 March 2010 on the Transparency and State of Play of the ACTA Negotiations (P7_TA(2010)0058), ACTA should be limited to an Agreement regarding enforcement against counterfeiting (the large scale commercial production of illicit physical goods).

ACTA should not be a backdoor way to rewrite intellectual policy laws.

We recognise that the Internet has enabled creativity and innovation, the sharing of knowledge, citizen engagement and democracy, and is an engine of economic growth and opportunity. This is the result of certain attributes of the Internet: its open protocols and its generativity; the fact that anyone can connect and anyone can build new applications, and find new uses without discrimination. ACTA should preserve these attributes.

I like this clause. We take for granted too often the open nature of the Internet.

We note that the World Intellectual Property Organisation has public, inclusive and transparent processes for negotiating multilateral agreements on (and a committee dedicated to the enforcement of) copyright, trademark and patent rights, and thus we affirm that WIPO is a preferable forum for the negotiation of substantive provisions affecting these matters.

WIPO is far from perfect, but at least it negotiations are public, and often involve stakeholders.

We declare public scrutiny and accountability to be important aspects of life in a free society. We call for full transparency and public scrutiny of the ACTA process including release of the text after each round of negotiations. Governments have been unwilling to respond to specific concerns raised by the public. Public scrutiny will help to ensure the Agreement has no unintended consequences and has maximum positive benefit.

A number of Governments, including New Zealand, have been pushing for more transparency. However it takes only one country to veto the release of the text.

We declare that ACTA must recognise that intermediaries, such as ISPs, web site hosts, and search engines, are central to enabling people to derive the benefits of the Internet.  Their role must be protected and encouraged.

Intermediaries who do not initiate or direct the content on their systems or networks must have the benefit of safe harbours that are not predicated on enforcement obligations designed to address third-party infringement.

ACTA must not mandate secondary liability standards.

The Internet basically stops working if ISPs have secondary liability for what their users do. An ISPs obligation is to obey the law as directed by a competent authority.

We declare that access to the Internet is increasingly necessary for participation in society.

Disconnection, account suspension, or limitation of service, have disproportionately negative consequences for civil rights. ACTA cannot require or allow that it be an acceptable sanction for copyright or trademark infringement.

And this is what the US is pushing for.

We declare that ACTA must provide a high bar for criminal liability. ACTA must not attempt to reframe personal use and private acts to fit a definition of “commercial” infringement.

One proposal in ACTA is to make it a criminal offence to use a camcorder in a movie theatre.

If you support the Wellington Declaration, you can sign your name to it here. Almost 1,000 people have signed it so far, and it will be presented to the actual ACTA negotiators on Tuesday.

Well done to the organisers for a very useful and productive meeting on Saturday.

Some people may think I am anti-copyright, but that is far from the case. I think copyright laws, and other intellectual property laws, are very important to a country and an economy.

However such laws are about a balance between creator and the public. With no such balance, there would be no ability to quote extracts of a written work, to record a TV show off the television, to tape a song off the radio etc.

I do think music companies should be able to take action against people who download music, to avoid paying for it. This is one reason I quite like the new S92A. Under the old Copyright Act, there was no cost effective way to take non-commercial infringers to court. The new S92A allows cases to be heard relatively cheaply by the Copyright Tribunal.

So it is a mistake to portray opponents of the old S92A (or those who scrutinise the ACTA treaty) as opposed to copyright. Sure a few people may fit into that category, but not the vast majority.

The biggest frustration I have is that business models are not changing quickly enough to take account of the Internet, and this is one reason why so many download works for free. I’ll give an example.

At a dinner on Friday night with the organisers of the Public ACTA conference, one of the organisers mentioned to me she had just purchased Leonard Maltin’s “151 Best Movies You Have Never Seen“.

Now most film goers will know who Leonard Maltin is – the God of reviewers. So I thought that sounds like a really good book.

But that then got me thinking about how one would go about seeing those 151 movies. By their nature, they are not top viewing ones, that you could easily pick up at the video store. There is no website in NZ where you could order them from. If you were really dedicated you could spend hours wading through Amazon locating them and pay $6,000 or so to buy them all individually, and wait a month or so for them to arrive. Oh yeah, would also need a cupboard to store them all in.

But in reality, what many people would do if they have that book, is go to a torrent site and search for a torrent of the films listed. Because that is the easiest and quickest  way to do it.

But what if you could buy all 151 movies legally, easily and for an affordable price? Say the books costs you $25, but for an extra $250 you could also buy a 300 GB external hard drive with all 151 moves on it at Whitcoulls or Borders?  Hell, I’d buy that as a xmas present for a loved one, and so would many other people I reckon.

A reminder to those interested, that the Public ACTA conference is on all day Sturday in Wellington at the Town Hall. ACTA is the treaty being negotiated that may require countries to implement policies to terminate Internet access of copyright infringers.

As I have previously blogged, the position of the NZ Govt on ACTA has generally been a good one – but we only know this because the secret draft texts have been leaked in Europe.

This is an opportunity to learn more about ACTA and help critique the proposals around Internet access.

The programme is here. We have three top international experts speaking, plus a panel of local pundits. The three international speakers are:

• Professor Michael Geist, law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. Michael has a Doctorate in Law (J.S.D.) from Columbia Law School and is an internationally syndicated columnist on technology law issues.
• Kim Weatherall is a Senior Lecturer in the School of Law and an Adjunct Research Fellow with the Australian Centre for Intellectual Property in Agriculture. Kim teaches and researches in intellectual property law, with a particular interest in digital copyright, the relationship between international trade and intellectual property, and the systems for administration and enforcement of intellectual property rights.
• Jonathon Penney is the Internet NZ Senior Research Fellow in CyberLaw at Victoria University and has a MSt from Oxford and a LLM from Columbia. Hailing from Canada, he has previously worked as a lawyer with the Justice Department and as a policy advisor at the federal level

If you wish to attend, you can register here. Looks to be 100 or so people attending at this stage. There is no charge to attend thanks to InternetNZ,

Labour have announced:

Labour today announced it would support the Government’s Copyright Infringement File Sharing Amendment Bill but remains strongly opposed to some aspects of the Bill.

Labour’s Communications and IT spokesperson Clare Curran said the bill includes some sensible provisions, so Labour will be supporting it to select committee to make sure people have a chance to have their say.

However, Labour is strongly opposed to the provision for suspension of an Internet Service Provider (ISP) account.

This is excellent to see – both that Labour are supporting the bill to select committee (as it is a huge improvement on status quo), but especially that they have now declared their official policy to be against any provision for suspension of Internet access.

As the original S92A was introduced by Labour’s Judith Tizard, it has been a remarkable change in position to go from supporting the original S92A, to now opposing any suspension of Internet access as a response to copyright infringing.

Kudos is due to primarily Clare Curran for getting this policy change though. Also been impressed generally with Labour’s outreach on this issue – the meetings they hosted with stakeholders were a good example of genuine engagement.

What will be interesting is to see if the Internet suspension clause survives select committee hearings. The Commerce Select Committee has ten members on it – four Nats, three Labour, one ACT, one Green and one Maori Party.

If you are in Auckland and want to learn more about the Anti Counterfeiting Trade Agreement (ACTA), there is a public briefing run by InternetNZ this afternoon.

The venue is the Coromandel Room, Level 1, Rendezvous Hotel, corner Vincent St and Mayoral Drive in Auckland’s CBD.

It commences at 2.00pm and will be finished by 4.00pm.

Speakers include

• Officials from the Ministry of Foreign Affairs and Trade
• Jonathon Penney – the 2010 Cyberlaw Fellow at Victoria University of
  Wellington
• Colin Jackson – a Wellington consultant and blogger at IT.gen.nz
• Rick Shera – Lawyer, Lowndes Jordan
• Jordan Carter – Policy Director, InternetNZ

If you click on my ACTA tag you’ll find more info about ACTA and why it is important to be vigilant about it.

I’ve blogged in the past on ACTA, the Anti-Counterfeiting Trade Agreement. Readers will gear a lot more of this in the next month, because the next meeting of the ACTA negotiators is in Wellington in April.

There are two major issues around ACTA. The first is that the negotiations are secret, and this has even upset the EU Parliament:

Wary of the lack of openness surrounding the Anti-Counterfeiting Trade Agreement (ACTA), virtually representatives of the EU parliament have banded together, voting 663 to 13 in favour of passing a resolution that would require the EU Commission (who are the EU’s representative in ACTA negotiations), to share all information about ACTA talks, and to refuse to support any Internet disconnection penalty for online copyright infringement.

The resolution is very specific and blunt about the EU Parliament’s displeasure with the lack of transparency around EU ACTA negotiations, citing concerns over the “lack of a transparent process in the conduct of the ACTA negotiations”.

The second is the concern that ACTA may force countries that ratify it, to legislate for Internet disconnection for people accussed or found to have infringed copyright.

Now, all trade agreements are negotiated privately, but whether an agreement on copyright law should be seen as a trade agreement is a big issue – most IP agreements are not. Many countries would like to be more open about ACTA, but the rules of trade negotiations are that you need unanimous permission to agree to anything – including releasing information. So just one country, such as the US, can block the release of the draft text.

I’ve attended two meetings (in my role with InternetNZ) with officials from MFAT and MED, and have to say I am impressed with their willingness to engage, within the limits of what they can say. They have consistently said their position has been that ACTA should not require NZ to do anything beyond its current law (including the replacement S92A). However they can not tell us what has been proposed by other countries, and the concern is what pressure there may be to get an agreement in the final stages.

What the Government has done is asked for public submissions on “enforcement of intellectual property rights in the digital environment”. If you have concerns about ACTA, you should take a few minutes to make a submission and state what is and is not acceptable to you. Topics include:

• Liability of ISPs for third party infringement
• Safe Harbour provisions for ISPs and associated conditions
• Identifying Infringing Users
• TPMs (Technological Protection Measures)

Now despite the ACTA negotiations being secret, a draft text has been leaked. And, assuming it is accurate, it shows the New Zealand negotiators in a pretty favourable light – opposing some of the more undesirable aspects.

Nathan Torkington covers this in a blog post. His summary:

On the balance this bit isn’t too bad–New Zealand is a good voice for sanity in the negotiations.

I was pleased to see from the leaked draft, that the official position of the NZ negotiators, was very much in line with the informal indications they had given. It is ironic that we can only verify this, because someone leaked a draft.

Now as I said the next round of ACTA, and the round most likely to be discussing the Internet section, is in Wellington from 12 to 16 April. I am hoping the organisers will allow an opportunity for some sort of public forum or dialogue with negotiators, and this request has been made.

InternetNZ has organised a PublicACTA conference on Saturday 10 April, which will allow interested people to debate the issues, form positions, and report them to the main ACTA negotiations the following week.

And in a further announcement, the keynote speaker will be Professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa in Ontario. Michael is a real expert in this area, and a great advocate for balance in copyright laws.

I would recommend people attend, just for the chance to hear Michael. And if you wish to stay up to date with what is happening, I recommend this ACTA coalition site.

Taken from Geekologie. People may also like this similar link, on trying to use an e-book.

Simon Power introduced this week the bill to amend and replace the S92A copyright 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. InternetNZ 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.

Pat Pilcher 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  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.

ZDNet reports:

Australian ISP iiNet was today announced as the victor in its long-running defence against a lawsuit by major film and TV studios represented by the Australian Federation Against Copyright Theft (AFACT).

The studios first dragged iiNet into the Federal Court back in November 2008, arguing that the ISP infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers from copying films and TV shows over its network. …

The studios were trying to make ISPs liable for what their users did, and force them to be unpaid sheriffs and terminate users on the basis of unproven allegations from the studios.

The court ruling is very strong – it says that iiNet did not sanction, approve or countenance copyright infringement – they simply did no more than provide an Internet service to its uers.

The court also said “iiNet is not responsible if an iiNet user chooses to make use of that (BitTorrent) system to bring about copyright infringement.

This is the first ruling of its kind in the world on whether ISPs can or should be liable for what their customers do, and if they have a duty to stop them. Hence it may prove to be a very useful precedent in future.

The 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.

I’m getting nervous on the copyright front.

I was pleased the Government suspended the introduction of the “guilt upon accusation” S92A.

I was also pleased with their proposed policy replacement, that came out on 7 August. Didn’t agree with everything in it, but it was a lot better than the law passed by Judith Tizard. So far so good.

Submissions closed on that document on 7 August – that is four months ago. Most of the submissions were supportive.

So why I wonder has the Government not released its final proposed policy?

One reason I can think of is that they are getting furiously lobbied by United States lobby groups demanding changes to the proposed policy. We know the US MPAA had a Vice-President out here. I was pleased he only got to meet with officials, and not the Minister, but it would be naive to think such lobbying has no impact.

I hope I am wrong, and what emerges is at least as satisfactory as what was in the proposed policy. But why has it been four months with no news?

And then we have the ACTA (Anti-Counterfeiting Trade Agreement) which could remove our ability to determine our own laws in this area. Let me quote Peter Dunne and Clare Curran on this:

Peter Dunne said:

UnitedFuture leader Peter Dunne has called on the Government to release details of the recent international negotiations on the Anti-Counterfeiting Trade Agreement.

“There is a lot of conjecture about the contents of ACTA and what it will mean for the protection and enforcement of intellectual property and copyright law here in New Zealand,” said Mr Dunne.

“The veil of secrecy surrounding the contents of the ACTA agreement is causing a lot of concern not only here but also among the other nations involved.”

Indeed. And there are conflicting reports on what ACTA covers. Some say it is large scale commercial piracy. Other say it seeks to mandate S92A type laws for everyone.

“It is in the public interest for the Government here to be as transparent as possible over ACTA.”

“While we have been told by Mr Power that the negotiations bear no relevance to the issues around the review of S.92A of the Copyright Act, many people are nervous that this is what has held the current review up.”

“A simple disclosure of the terms and text of ACTA negotiations would allay any misplaced anxiety while also giving New Zealanders the opportunity to voice concerns they may have.”

“Mr Power was quick to listen to New Zealanders over S.92A and scrap Labour’s unjust law; I encourage him to do the same over ACTA,” said Mr Dunne.

It would be great to both have the ACTA text made public, and also to be told what is causing the delay in the review of S92A?

Clare Curran has also said:

In the interests of transparency and public interest, the New Zealand Government should reveal the text of recent secret discussions in South Korea on the Anti-Counterfeiting Trade Agreement (ACTA).

Clare has also blogged a transcript of questions about ACTA at a select committee.

The official says:

On the section 92A question that you ask, the answer is difficult to give. I just do not know how the United States is going to approach this issue, either in TPP or in ACTA as yet, in that they have not come to a definitive negotiating position even in ACTA. It is also very early days, as you know, internationally in terms of putting place these kinds of provisions, and a lot of people are looking at New Zealand in terms of how we do it and whether we can provide something of a model for others to follow. The strong hope that we would have is that the kinds of provisions that we are going to recommend shortly—and that, hopefully, the Minister will propose shortly to Parliament—will be enough in terms of any further concessions sought from us from the United States, etc. I think that in terms of the kinds of bases that the US wants hit, we will hit them but we will still have enough safeguards to protect the interests of users as well as owners.

That to me suggests that what is acceptable to the US, is a factor in the review of 92A.

Now I am a fan of an FTA with the USA. But I’d rather not give them everything they want before we even negotiate an FTA. Hell, we might be able to get rid of some lamb tariffs if we don’t bend over prematurely.

The official also said they hope for an update on S92A before Xmas. Not many days to go.

Also people interested in this issue might be interested in Kiwiright – a 12 minute documentary about the fight against S92A. It is embedded below.

© kiwiright from nu4mz on Vimeo.

The Herald reports:

Brits who illegally download music from the internet also spend more money on music than anyone else, according to a new study.

The survey, published today, found that those who admit illegally downloading music spent an average of 77 pounds ( NZ$176) a year on music –33 pounds more than those who claim that they never download music dishonestly.

So illegal downloaders spent almost twice as much as those who don’t download.

I’ve never downloaded music myself, but talking to those who do I gather that many of the downloads are to try before you buy. Now that is not an excuse for breaking the law, but it means that when you hear that 19 out of 20 songs are downloaded illegally, that does not mean sales would be 2000% greater without such downloads.

The findings suggest that plans by the Secretary of State for Business, Peter Mandelson, to crack down on illegal downloaders by threatening to cut their internet connections with a “three strikes and you’re out” rule could harm the music industry by punishing its core customers.

Ironic.

Chris Keall at NBR reports:

In the US, some of the biggest tech buzz of the year has been generated by Spotify, an online music service that lets you stream an unlimited amount of songs via the internet each month, for a set fee, rather than buy tracks or albums individually on the iTunes model.

Last month, a similar service was launched in Australia, called Bandit.fm.

Now, Bandit.fm is set to migrate across the Tasman with a New Zealand launch set for late November.

The new service will let you stream (that is, play but not save) an unlimited number of songs each month for $9.95, payable in advance by credit card.

That is a great move, and the pricing seems very reasonable.