Kiwiblog

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.

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.

Before I add my comments, you can also see some summaries at Tech Liberty NZ blog (worth subscribing to also).

Also the Twitter feed is extensive. Over 250 tweets. Is one of the best Twitter coverages I have seen as we had nine or ten people et the seminar twittering and several people not there also commenting and asking questions.

The morning session was mainly focused on contempt of court, and the afternoon on name suppression issues.

Warren Young, the Deputy President of the Law Commission, gave an overview of the recommendations from their recent report on suppressing names and evidence. He said the threshold for getting name suppression shoudl be “extreme hardship” not just hardship as at present.

Most usefully he clarified that the recommendation relating to ISPs removing or blocking suppressed material is not meant to imply an obligation on ISPs to block overseas hosted material, just to remove material hosted on their own networks.

I asked a question about whom an ISP should be obliged to act on a complaint from – my preference is it should only be if the Crown Law Office or Police inform an ISP of suppressed material.

Judge Harvey spoke about the challenges of the Internet and supressed material, but did not think the horse had bolted. He made the case that one doesn’t have to achieve perfect suppression – it is often mainly aimed at making it hard for jurors to access material not relevant to the trial.

The final panel was myself, Sinead Boucher (Group Online Editor for Fairfax) and Ursula Cheer from Cant Uni Law School. Sinead and I talked about the issues we face from a practical point of view in trying to complay with the law, and Ursula touched on how different technologies come in and out of vogue with different challenges.

Now I can’t avoid mentioning a huge fuckup I did. It was one of the rare times I was speechless as I realised what I had done. I had a few slides to go with my talk, and I was talking about the recent high profile entertainer case, and was detailing the different sites you could find out on.

The point I was making was it was not just blogs, but the name was on Yahoo Answers, MSN NZ, was findable through Google search and even on the entertainer’s facebook page. I found it amusing that the entertainer himself could be liable for breaking his own name suppression.

I displayed the above page to show the comment someone had made on the page. I pointed out to the room packed full of lawyers from the Courts, Ministry of Justice, Crown Law, Law Commission etc (plus the Judge who originally dealt with the case) how careful I had been to draw green boxes over seven parts of the page to stop my showing the page, itself being a breach of the suppression order.

I went on to say how I then realised the URL gave the name away also, so had to go back and green that out also, and then also realised two of my open tabs displayed the name, and edited the graphic for a third time to green them out.

Just as I was about to move on, someone in the audience then pointed out that sadly I had overlooked the Google search box in the Google toolbar, and to my horror there indeed was the name of the entertainer (now behind a yellow-brown box). I was mortified as the audience started pissing themselves with laughter.

I mean how much worse can it be – you are boasting about how careful you have been to not break the name suppression order, and bang the name is up on the screen in front of everyone – and especially in front of that audience.

In the general discussion at the end, there was some discussion around the role of the media committee of the Courts. The TVNZ lawyer said the committee had one rep from print media and one from broadcast media, and many in the room thought an additional rep from Internet media could be a useful thing. Of course that is a decision for the judiciary, but it was agreed InternetNZ would write to the Chair to discuss the concept.

Feedback from participants was incredibly positive, especially from many of the lawyers. A common comment was how useful it was not just having lawyers there discussing things academically, but also having media and Internet practitioners with practical knowledge. There was a strong feeling that there should be more opportunities to get the various industries together on issues of mutual interest.

Kudos to InternetNZ President Frank March who MC’d the day well to finish ahead of time, and to the InternetNZ staff who primarily organised it. And most of all to the participants – had many great contributions not just from the speakers, but from the floor.

The Law Commission published yesterday a report and recommendations to Government on suppression order. One chapter deals with the Internet, which I will talk about in more detail. First the major recommendations:

• starting point for considering publication of evidence and names should be a presumption of open justice
• suppression should only be used in exceptional cases where there were compelling reasons
• grounds on which suppression may be granted need to be clarified and tightened
• development of a national register of suppression orders should be advanced as a matter of high priority.

These all seem good and sensible moves to me. The use of suppression orders has been growing, and they should be the exception, not the rule. Having tighter criteria is a good step in the right direction.

I am especially pleased to see the recommendation for a register of suppression orders. It is very difficult to sometimes know what has or has not been suppressed. And this is a complaint not just from me, but from many in the media.

With regards to the Internet, they recommend:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.

The wording here is somewhat vague.  Under the best case scenario this is not greatly different from the status quo. ISPs already have an implicit obligation to remove material if it is in breach of a suppression order.

But what has not been defined is is what they mean by carrying information, and what they mean by “become aware”. It is one thing to require an ISP to remove material hosted by that ISP. It is quite another to require them to try and block information from other sources.  That would be highly undesirable, plus it won’t work. ISPs should be responsible (once notified) of material on their own networks, but not be ordered to block overseas sites such as Wikileaks etc.

What constitutes bringing the information to the attention of an ISP will need clarification also. I have no problem with an ISP having to remove material upon official request by the Solicitor-General and Crown Law. But just having a member of the public allege hosted material breaches a suppression order should not be enough. The ISP is not competent to decide what is or is not a breach of a suppression order – hence it should be an official agency that has to make the request.

So overall the main recommendations look to be a move in the right direction. The recommendation relating to the Internet is too vague to be able to say for sure at this stage.

In a fit of good timing, there is a seminar on the 3rd of December where some of these issues can be discussed and debated.  The seminar, titled R v The Internet, is hosted by InternetNZ, the Law Commission and the Ministry of Justice.

The seminar is at Te Papa, and has an impressive line up of speakers, including:

Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Tony Smith, Dean, VUW Law School
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Deputy President, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
Ursula Cheer, Associate Professor of Law, University of Canterbury

I’m also taking part in one of the panels. I think it will be a fascinating day. It is intended for legal, media, and Internet professionals, and anyone can register to attend for $100 + GST. You can also apply for a discounted rate.

I’m very very happy with today’s announcement from Steven Joyce:

Communications and Information Technology Minister Hon Steven Joyce today released the details of the government’s $1.5 billion ultra-fast broadband investment initiative. …

Key highlights of the proposal include:

• An open, transparent partner selection process, which will be initiated in the next month.




• Government investment directed to an open access, wholesale-only, passive fibre network infrastructure.




• A new Crown-owned investment company (“Crown Fibre Holdings”), which will be operational by October, to carry out the government’s partner selection process and manage the government’s investment in fibre networks.




• Crown Fibre Holdings and each partner establishing a commercial vehicle, a “Local Fibre Company” (LFC), to deploy fibre network infrastructure and provide access to dark fibre products and, optionally, certain active wholesale Layer 2 services.




• Provision for national and regionally-focused proposals, as well as consortium and proposals aggregating any combination of LFC regions.




• Independence, equivalence and transparency requirements for LFCs.




• Expansion to 33 candidate coverage areas based on the largest urban areas (by population in 2021).

What is really good is the commitment to open access to dark fibre, and the regional approach to the issue. The Government has held firm to most of their draft proposal, with the main change being an increase in the number of coverage areas to 33.

Computerworld reports on positive reaction:

“This ushers in the biggest and most fundamental change to telecommunications in New Zealand since the privatisation of Telecom 20 years ago,” TUANZ CEO Ernie Newman said in reaction to the news.

“The paper builds very constructively on the work done previously,” Newman says. “It takes into account most of the key issues raised in submissions, and sets a timetable with milestones. It is an excellent blueprint on which to build.” …

InternetNZ also welcomed the plan, saying it is “delighted” with today’s announcement of a regionally-based approach to investment.

“This is a world-leading programme that can be expected to deliver the infrastructure New Zealand needs,” spokesperson Jordan Carter says.

“Steven Joyce and the Government have put in place a framework that over time can deliver a widespread fibre rollout across urban New Zealand.”

Those unsure about the benefits of ultra-fast broadband, might want to read the guest post from Rod Drury earlier this week.

Chris Keall (and Kelly Gregor) at NBR cover the proposal in detail. Keall highlights a new focus:

In the proposal document released today, the minister also flags that “The capacity and reliability of New Zealand’s international data connectivity will become increasingly important as LFCs’ [local fibre companies'] networks are deployed over the course of the UFB Initiative.”

The Commerce Commission recently identified slow international data as a roadblock to better domestic broadband performance, with testings showing that overseas pages take twice as long to load as those hosted locally – even with our current copper-dominated networks.

International bandwidth and data costs are often cited as a big issue also.

In a fit of good timing, Juha Saarinen has an article in Computeworld on dark fibre, and how you basically can not get it from Telecom or TelstraClear. Have a look at this price comparison and weep:

James Watts, who runs Palmerston North-based ISP Inspire Net, says the reason dark fibre is attractive to his customers is because they can “do whatever the hell they want with it.” Inspire currently charges $595 and $995 for intra-town dark fibre pair leases, depending on contract terms, and double that for inter-town unlit circuits.

To light the circuits, Watts says his company sells Gigabit Ethernet transceivers for $140 each.

A similar 1Gbit/s circuit from Telecom apparently costs $7000 a month, plus installation charges.It’s $69k a year according to Telecom’s pricing book.

Finally a focus on the issue of fibre providers being discouraged from also operating retail telecommunication services, both here and in Australia. Steven Joyce said in a Q&A:

Will Telecom have to structurally separate its network business to participate?

Any such decisions are up to Telecom.  The Government has made it clear that it will only invest money into fibre companies that are not controlled by shareholders who also operate retail telecommunication businesses.  The Government is also clear that potential partners who already own fibre assets can table options that involve those fibre assets being vended into any new fibre companies.

Preventing vertically integrated monopolies is crucial. This basically means Telecom can not be a majority shareholder in any regional fibre company unless they structurally separate (ie sell off Chorus). They can have a minority stake however.

In Australia, the Government has done similiar:

The government could also deny Telstra access to new spectrum for advanced wireless broadband unless the telco sells off its cable network and 50 per cent stake in Foxtel (25 per cent owned by News Corporation, owner of The Australian)

If you want to be part of the future, you need to be separated.

For those who think separation is not a big issue, think what it would be like if Air New Zealand owned the airports and could set access terms for other airlines. Or if Ford owned the roads and set the rules for what other cars could drive on them, and for how much.

So as I said, very pleased with the announcements today, and now working my way through the details.

The Herald reports:

Internet service providers will soon begin blocking access to hundreds of websites that are on a secret blacklist compiled by the Department of Internal Affairs, but critics say the system lacks transparency.

Some ISPs – those that choose to use the service.

There are two sorts of views about the desirability of a voluntary filtering scheme to block child pron sites. Both have some validity.

One view is that any sort of filtering sets a bad precedent. That if you accept a filter for child porn sites, then someone may propose a filter for copyright infringing sites, or sites that advocate crime, or sites that are defamatory of someone. The concern is that this is the thin end of the wedge. The argument is you don’t block sites to stop people breaking the law, you prosecute them afterwards for doing so.

The other view is that if ISPs do not act to voluntarily block access to child porn sites, then it will give ammunition to those who want compulsory filtering such as in Australia, and that such compulsory filters may be far wider than just child pornography. It is better for most ISPs to have input into a voluntary filtering scheme, than have a compulsory one implemented on them.

The department this week announced its new Digital Child Exploitation Filtering System, which it said would help fight child sex abuse. The $150,000 software will be provided free of charge to ISPs in a couple of months and will reroute all site requests to Government-owned servers. The software, called Whitebox, compares users’ site requests with a list of banned links. If a match is found, the request is denied. It will not cover email, file sharing or borderline material.

The best info on the proposed scheme comes from Thomas Beagle who has an FAQ on it.

Critics say the system has been introduced by stealth and lacks accountability. The department will not disclose the 7000 objectionable websites for fear “inevitably some people would visit them in the interim”, effectively facilitating further offending and making the department party to the further exploitation of children.

Through my work with InternetNZ, I got briefed on the proposed scheme some months ago.To be honest I did not realise until recently that info on the proposed scheme wasn’t in the public domain. As DIA had been talking to various ISPs, I just assumed it wasn’t a big secret. I actually suggested the DIA be invited to make a presentation to the InternetNZ AGM, which is a public forum, and they seemed relaxed at that. I suspect it has been “secret” more by neglect rather than design.

InternetNZ has had a healthy constructive relationship with DIA for some years. Around four years ago we supplied a technical expert to test the UK filtering scheme, and to check for stuff like false positives – ie does the filter block sites that are not hosting child pornography.

In terms of listing the websites that will be blocked, I have some sympathy for the notion that this is undesirable as it is like publishing a guide to find all the child porn sites. But I also understand that many people could be nervous with a regime of “Just trust the DIA”. A suggestion I made was that maybe one could have the Office of the Auditor-General empowered to audit the filter list every six months or so, to certify it has not been expanded beyond its mandate. Mind you I feel sorry for the poor staffer who would have to check some of the sites out to do such verificiation.

Internal Affairs censorship compliance head Steve O’Brien said the blacklist would be personally reviewed by staff each month and would be restricted to paedophilic content only.

This was a key area I quizzed the DIA staffer on. I am very much oppossed to filters that work on keywords, assumptions etc as these inevitable have false positives – they block sites they should not. A manually reviewed list is the only way to go.

Also essential (to me) is that the filter will be directed towards child porn sites only, and not all sites with “objectionable” content. While most prosecutions in NZ for “objectionable” content relate to child porn, the definition of objectionable is wider. It includes (for example) sex involving urine or faeces. It is somewhat strange that it is not actually illegal to perform or receive a golden shower, but it is illegal to view an imagine of a golden shower!

Now just so no one gets the wrong idea, I find the idea of sex involving wees or poos as bloody disgusting, and am not a champion for such practises. Yuck. But they are not like child porn, in that child porn has actual real victims – the abused kids. So to my mind it is important a filer targets child porn only, and not the wider definition of all objectionable or illegal material. DIA agree, which is good. I imagine the fear of some people is that the definition could be widened in future. For my part I don’t detect any desire on behalf of DIA to grow it in future. They have a pretty nasty job to do, and generally do it pretty well. That is not to say I agree with everything they do.

Filtering systems in Australia, Denmark and Britain have been accused of serious flaws, with unexplained blacklistings of straight and gay pornography, Wikipedia articles and small businesses.

Yep errors do get made. However there is a system to get a decision reviewed if you get told a site is blocked, and you think it should not be.

Mr Beagle said he favoured providing optional clean feeds for users, but believed Governments would be tempted to expand the blacklist in reaction to events.

I am against any filter being compulsory for ISPs. And I agree user level decisions are best. But personally I am pretty relaxed about individual ISPs making a decision about whether or not they would use the DIA filter – so long as they do so transparently and inform customers they have done so. Some ISPs may even use it as a marketing tool that they provide a slightly “safer” environment, while other ISPs may choose not to take part, and use the fact they are unfiltered as a marketing tool.

What would I do if my ISP, choose to use the DIA filter? So long as it was restricted to child porn sites only, and so long as there was some sort of external review (such as the Office of the Auditor-General), I would stay with that ISP.

Some ISPs could even choose to provide it as an option for customers to select as a preference, but I understand that require a bit more than just a line of code.

Chris Barton looks at the Government’s fibre plans:

We do know fibre-optic cable is at the centre of Joyce’s rewiring plan and the mechanism to get there is the much-vaunted public-private partnership.

So far so good. But just who does Joyce plan to partner with? And will he be seduced by Telecom’s wiles?

There’s no doubt Telecom would love to bed Joyce. Such a tryst – Telecom building, operating and no doubt, wanting to own, the new wires – would secure the firm’s monopoly dynasty forever.

I think Mr Barton needs to take less Viagra before he writes his column

But it’s also clear such a dalliance would be a terrible mistake. Not to mention a betrayal of voter trust and a very poor return on taxpayers’ money.

And getting the maximum return on the Government’s investment is crucial.

If Joyce is still uncertain about what to do, he should re-read the very fine piece of analysis prepared for Internet New Zealand by Network Strategies. There, in glorious return on investment detail, is a simple answer to who the Government should partner with instead of Telecom – electricity lines companies.

Why? Because if New Zealand wants to rewire its aged telecommunications to a fibre-optic future, the electricity lines companies are the cheapest, most efficient way to do it.
Plenty of power poles and ducting are already going by our homes, already with resource consent, making it much easier to string or trench fibre to our doorsteps. How much cheaper? Without the lines companies, Network Strategies estimates a fibre network will cost $5 billion.

With the lines companies on board, the cost drops to $3 billion – making the Government’s $1.5 billion investment look like a very realistic sum to fulfil its election promise.

A $2 billion difference is far from insignificant. I am of course on the Board of Internet New Zealand, but we were as surprised as anyone I think that the research turned up such a massive price difference.

There are other reasons why this is very good idea. Most of the 27 lines companies in New Zealand are owned by consumer trusts – an ownership structure that tends to be sympathetic to longer payback periods and fits well with local initiatives that recognise the importance of broadband to a region’s economic and social wellbeing. And some, such as Vector and Counties Power, are already providing fibre to homes or businesses.

And even more importantly, lines companies do not tend to be in the business of providing services over their lines – they are an access provide rather than a service provider. This is actually crucial as you then avoid a vertically integrated monopoly, and then multiple service providers can comptere and offer different packages over the fibre.

But there are two problems. The first is what such a network would do to Telecom’s share price. There’s no doubt it would have an unsettling effect. But if the new wires are “open access”, it’s hard to see how Telecom can complain too much.

Open access means companies get equal access to the infrastructure on non-discriminatory terms and conditions, so all comers are offered the same wholesale products or services at the same price and equivalent conditions. In other words, consumers get choice and Telecom competes for business with everyone else, probably getting a whole lot more efficient in the process.

The impact on Telecom is a real issue – not just in terms of share price, but also their fibre to the cabinet plans. Would they continue? Would they sell Chorus if the line companies get the nod to build the fibre to the home network? Could there be a win-win – maybe some partnership with lines companies and Telecom/Chorus? So many issues, which is why a decision should not be rushed.

There’s been quite a bit of media interest lately about the Australian Government’s daft idea to force Australian ISPs to install compulsory filters that will ban sites the Government deems undesirable.

Radio NZ did a piece this morning:

The Australian government plans to force Australian ISPs to filter out more than a thousand websites with content including child pornography, excessive violence, crime and drug information as well as promoting terrorism.

The policy, dubbed the ‘Great Aussie Firewall’, has been met with a storm of criticism across the Tasman.

Internet New Zealand board member David Farrar says much of the banned content is traded over peer-to-peer networks which won’t be caught by filters.

He says the filters will also cause a sharp fall in download speeds for Australian users.

Internet Service Providers Association of New Zealand president Jamie Baddeley said the policy is insane and unworkable.

But he says it is symptomatic of pressure coming on ISPs to do more to police the internet.

One can also listen to the full item, at the bottom of the linked page. Jordan Cater is also interviewed.

I’ve also just been interview by TV3 for their 6 pm news tonight on the same issue.

I commented that luckily in NZ we have far smarter MPs, and I doubt more than a handful here would back some sort of compulsory government filter.

Also put in a plug for Netsafe, who provide really great resources for those worried about Internet safety.

InternetNZ released today the first ever comprehensive costing of options for achieiving ultra high speed broadband to at least 75% of New Zealanders. This was defined as a minimum 100 Mb/s for residences and 1 Gb/s for businesses.

The report is 150 pages of detailed models and costings. It was done by Network Strategies, who are an independent leading firm of telecommunication economists.

There are lots of technical details on whether one should build just layer zero or layer one infrastructure, whether it should be GPON or Ethernet or even peer to peer. The techos will find that part interesting.

But the real “big news” in the report is that it may be billions of dollars cheaper to build a fibre network through existing utility (electricity lines) companies, than through expanding current telco networks.

The major cost of fibre deployment is the cost of placing it. And lines companies already have networks of ducts plus overhead cables, and very importantly resource consents. If 50% of fibre deployment can be done using existing utility infrastructure (and some estimate as much as 70% could be done this way), then the total cost is projected to reduce from $5 billion to $3 billion and the cost to the Government from almost $4 billion to under $2 billion.

Now this is only one report, but hopefully a useful contributor to the debate over how to best achieve the Government’s goal of ultra high-speed broadband to 75% of NZ. But one reason I am quite enthusiatic about the path it suggests, is because it makes vertically integrated monopolies far less likely. You see none of the electricity lines companies offer telco services (such as Internet access, TV, phone). They would operate any fibre network on open access principles to all telco providers at a standard wholesale cost (estimated to be around $40/month). In one sense very similar to how Citylink have operated – they just provide the fibre, and let ISPs offer the services over it.

This actually has the potential to reverse much of the regulation in the telco sector. If there is infrastructure competition or separation, then you probably don’t need Telecom (for example) to be giving competitors access to its networks. Regulation is what I call a necessary evil. If one can get the infrastructure setup in a way so there is less regulation, that is a good thing.

There are literally dozens of big questions facing the industry and the Government, in working out a way foward. This report does not seek to answer them – it is a first step. Issues such as national vs regional, ownership, existing investment plans, the role of Chorus, RMA issues, funding, are all very significant ones.

It is going to be a very exciting time over the next few months, as the Government’s plans get finalised. Some people are sceptics, but I think there will be significant economic and environmental benefits to NZ if we get a fibre network in place ahead of most other countries.

I blogged last week on the new copyright law, and how the provision about ISPs having to terminate Internet access for repeat infringers was causing huge problems.

The good news is the Government seems to be listening. IT Brief reports:

The government has bowed to unprecedented ICT industry pressure, announcing a four-month moratorium on Section 92A of its new Copyright (New Technologies) Amendment Act.

Communications minister David Cunliffe revealed the back-down during the InternetNZ TVNZ7 Internet Debate held on Tuesday night, saying the delay would give the industry and content providers time to come up with an alternative approach to controlling copyright on the internet.

The debate incidentially went really well I thought. Possibly could have been a bit shorter, but we had a good mixture of politics and policy. There was some generally good natured sparring that kept it interesting, but also some useful and interesting policy discussions around broadband, copyright, filtering etc.

From a technical point of view it was pretty seamless as we took questions from journalists, from the studio audience, from the online chat channel and also video questions through Skype. The InternetNZ staff and TVNZ staff and contractors did very well making it happen. Several people said they would like to see more debates with that interactive format.

Damien, Russell and Fran were all good at challenging the MPs, quite aggressively at times.

The funninest part for me was Maurice WIlliamson saying he had no idea why he voted for the new copyright law, as it is such a stupid law. I thought Maurice did very well, but in fact all four MPs did well with strengths in different areas.

You can view the video of the whole thing at debate.net.nz.

Anyway back to copyright. The Dominion Post also reports:

Paul Moreno, a spokesman for Justice Minister Judith Tizard, said a delay to regulations required to put the cut-off clause into force was being considered, and that the delay might be “endless”.

“Judith is of the mind that Internet access is almost a human right now, similar to water and electricity.”

But Ms Tizard then appeared to toughen her stance, stressing that the Government was concerned to protect copyright holders.

And it is important to protect copyright holders. But look at the gap between the possible interpretations:

Ms Tizard would not say whether the intention was that the cut-off threat should apply only to people who had been repeatedly convicted of copyright offences, or to those who had been accused of infringements by bodies such as the Recording Industry Association – indicating it had been left deliberately unclear.

“The intention of this provision is to provide a framework for the ISP industry and rights holders to develop an efficient and effective mechanism that is workable for both parties.”

Telecommunications Carriers Forum chief executive Ralph Chivers said if the former definition was used, that might be one solution.

But Recording Industry Association chief executive Campbell Smith said that would not be acceptable as it would require copyright holders to sue infringers to prove their guilt. “That is just impractical and ridiculous. I don’t think that is what was intended.”

Instead, ISPs should cut off customers who infringed copyright after notifications from rights holders, he said.

Losing your Internet access on the basis of unproven accusations is not a goer for me.

The TVNZ7 debate with InternetNZ between four parties on Internet and ICT issues in on tonight starting at 9.10 pm. The first hour is on TVNZ7 and the second hour (plus the first hour also) is webcast at debate.net.nz.

It is a fully interactive debate and you can ask questions online, vote for the party (via website or text) with the best policies and have fun discussing it in a chat channel.

The MPs taking part are David Cunliffe, Maurice Williamson, Rodney Hide and Metira Turei.

The two journalists on the panel are Fran O’Sullivan and Russell Brown. The moderator was to be Sean Plunket but he has been replaced by Damien Christie.

The Herald reports on why Sean will not be doing the debate. Despite it being as small and un threatening as you can get, the Radio NZ Chief Executive refused permission for Sean to do it. This has led to Sean announcing he is planning to leave Radio NZ and is looking for a new job after 11 years there.

Damien will do a very good job, but I am annoyed Radio NZ has refused to let Sean do the debate – are they not meant to support public good broadcasting? I suggested Sean as the moderator, and never had any idea that it could lead to problems with Rado NZ.  Some questions should be asked about whether Radio NZ are being too precious here.

Six major ICT groups have put out a statement slamming the new copyright law as deeply flawed and unworkable. The six groups are:

1. InternetNZ
2. Telecommunications Carriers Forum
3. TUANZ
4. Internet Service Providers Association of New Zealand
5. NZ Computer Society
6. Women in Technology

There has never previously been an issue that those groups have joined forces on.

This law was passed last year. I think every party but the Greens voted for it, and it is just a shambles. Even worse the clause that is causing many of the problems was deleted by the Select Committee (I was one of those who sucessfully lobbied for it to be removed) and it was put back in by the Government (but voted for by most parties) at the last minute during the Committee of the House stage.

It is s92A causing the nightmares. It states:

An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

Now what the hell does that mean? Some in the IP industry are saying it means that an ISP must permanently terminate a user from the Internet upon receipt of three complaints alleging copyright infringement.

Note just alleged infringements. Not that you must terminate someone only after they have been found guilty in court.

You could do a parody of an advertisement, and argue that this qualifies as fair use (as permitted under law). If the advertiser disagrees and complains you are on the way to being kicked off the Internet.

Upload to You Tube a video of yourself with the radio on in the background, and you may have infringed copyright of the song on radio, and bang there goes your Internet access.

Don’t believe me. Here’s the NZ Computer Society Chief Executive:

NZCS generally steers clear of criticising laws, however in the case of Section 92a of the new Copyright (New Technologies) Amendment Bill we, like most others in the sector, have to make an exception.

In fact the problem is so large the entire ICT and Telecomms sector is now up in arms about it.

Now let’s get one thing clear. Copyright owners absolutely have the right to protect their intellectual property, and NZCS and others are not for one second saying otherwise. To state it clearly: Copyright violation is a major problem, and we support moves to reduce it.

However to trample all over the rights of computer and internet users, and to place ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations is completely unreasonable.

This is actually eerily similar to a situation where a power company would be forced to have a policy stating that they must cut the power off to a house, business, school or library (yes, they’re included) if someone on the property used that electricity to do something illegal. I can’t imagine that situation receiving a good reception, so why is this any different?

And here is Ernie Newman from TUANZ:

Few people would disagree that the musicians and others who own copyright to digital content are entitled to have their legitimate interests protected. But a workable balance has to be found between the interests of copyright owners, and those of legitimate Internet users and Internet Service Providers.

Yet for that kind of balance, this Act scores zero out of ten on the NCEA scale. …

I’m struggling to remember a more imprecise piece of legislation. This is just abrogation of parliament’s responsibility.

So what can be done?

Well the good news is the law has not yet come into force. The Government can bring it into force by an Order in Council. I understand they are planning to do this in October.

Lobby Ministers and MPs to have Cabinet delay that section. They can trigger the rest of the new Act, but leave that section delayed to give the Internet industries and Rights Holders tme to come up with a Code of Practice which will give some certainity to how that section should operate.

So if you don’t want to see an unworkable, deeply flawed law come into force next month, start e-mailing or contacting MPs. Otherwise you may find that those three videos you uploaded to You Tube have got you kicked off the Internet, or at leats your ISP.

One of the little projects I have had a bit to do with is helping arrange a partnership between TVNZ7 and InternetNZ for the 2008 Internet Election Debate.

InternetNZ ran an online debate on ICT issues in 2005 between some of the party spokespersons (including Labour and National). It was webcast, and allowed remote participation through an IRC channel, e-mailed questions etc. It worked well, with both the politicians and the audience enjoying the somewhat unconventional format which allowed more time for actual debate and detail.

As ICT issues such as broadband, fibre rollout, wireless, digital copyright have become far more prominent in the last year ro two, we thought there would be enough interest in the debate to look at having it televised also. And TVNZ7 were the natural partner with their focus on news and current affairs. So we were delighted when they showed not just interest but enthusiasm.

We’ve also got a great range of journalists for the debate. Sean Plunkett has agreed to be the overall moderator. Fran O’Sullivan and Russell Brown will fire questions from the media bench and we will also have an online moderator who will filter questions through from the online and viewing audience.

The debate is on Tuesday 23 September starting at 9.10 pm. The first hour is live on TVNZ7. The second hour will be webcast (as will be the first hour) live and also available through TVNZ On Demand.

The four MPs are Labour’s Minister of Communications Hon David Cunliffe, National ICT Spokesperson Hon Maurice Williamson, ACT Leader Rodney Hide and Greens ICT Spokesperson Metiria Turei.

The whole idea of the debate is it will be a two way communication, not just one way. So if you are interested in faster broadband, digital copyright, Internet Safety etc etc tune in on the night. You can also ask questions in advance on Geekzone.

Anthony Doesburg reviews “Connecting the Clouds” which is a history of the Internet in NZ, by Keith Newman.

The book was launched last Thursday in Wellington. I was somewhat gutted I was in Auckland and unable to attend, as I actually helped commission the book, proposing some years ago to InternetNZ that we should get such a book written while all the original pioneers were still around.

As Anthony notes, Keith Newman more than delivered, with the 100,000 word project expanding to 400,000 words.

The book will not make the best seller lists, but for those with an interest in the Internet and its development, it should be a fascinating read. Like most books, it is best to have the hardcopy so one can read in comfort, but it has also been made available online at nethistory.net.nz, which will be kept updated into the future. It is in wiki format which will allow others to contribute over time to it.

For those who want a bit of info on what InternetNZ is about and does, there is a useful article in the Herald by Adam Gifford.

InternetNZ has done very well to secure the services of Paul Swain as the inaugural Chair of their new Executive Board.

For a group active in the Comms/Internet arena, it doesn’t get much better than having the former Minister of Comms and IT on the board. Paul’s experience, knowledge and networks will be a great asset to the work of InternetNZ.

I currently chair the Public Policy Committee of InternetNZ, which will become accountable to the new Executive Board. So in an indirect way Paul will be my boss for a while!

Been meaning to blog on this since the changes to the Copyright Act were passed on Tuesday with all but the Greens and the Maori Party against. It would be a very very close call, but if I was a (non whipped) MP I would probably have voted against as the law is so inconsistent. The major points:

• One can now legally format shift music (say from a CD you purchase to an Ipod), but music labels can opt out of allowing this in their sale conditions.
• However you can not format shift other works, such as a movie from a DVD to your laptop or to a Video Ipod.
• It is legal to record a TV programme to watch it later, but you can only legally keep it for as long as is reasonable to have viewed it at a more convenient time.
• ISPs have been given an exemeption for their technical operations, such as caching files, which in theory can breach copyright.
• Content Hosters though have only limited liability for material uploaded by their customers. If they receive a complaint alleging a copyright infringement, the ISP becomes liable unless they delete the material. This means in the case of disputes, the ISP has to act as Judge and Jury or risk being sued, and there is some evidnece from overseas that (for example) the Church of Scientology uses such copyright laws as a way to silence critics.
• A “notice and notice” regime was rejected in favour of the US style “notice and takedown described above. The NaN regime would have meant that if a content hoster receives a complaint, they must pass it onto their customer. If the customer does not respond or agrees to remove the material, then it is taken down. However if the customer disputes they are infringing copyright, then the ISP is not held liable, but merely provides the customer’s details to the complainant so they can negotiate or sort it out in court directly.
• The law enshrines special protection for technological protection devices, even though they can sometimes restrict people from legal actions such as making backup copies, or format shifting. TPMs are hugely unpopular and most of the music industry are dropping them.

Has been lots of comments in various areas. First of all Canadian Professor Michael Geist (a expert and advocate for fair use copyright laws) says the law isn’t great but a lot better than what was planned for Canada. He thinks the parts dealing with circumventing TPMs are pretty good.

Steven Price has an excellent post on the notice and takedown regime, its strengths and weaknesses.  I think the Minister, Judith Tizard, has also indicated they will look in future at stronger fair use provisions, which could help.

Russell Brown blogged on the law also.  InternetNZ (I chaired their working group on this issue) calls it a missed opportunity, which it is.

On the bright side, the MPAA is looking a movie download site in NZ, where people can purchase movies. This is a laudable idea, as it is important that people are given legal avenues to access material. We have had the situation in the past where one could not purchase music legally for your Ipod in NZ, and where popular TV shows are not available here for months and months after they show overseas.  The world is a global market, and making works available globally for legal purchase and download will help reduce illegal downloads.

DC may be facing the pressure in health, but I am very pleased to see he is still makin good calls in the Comms/IT area.

He has not accepted Telecom’s proposed separation plan. The proposed plan was a lot better than the draft plan, but still had aspects which would have left incentives in place which would increase the chance of failure.

InternetNZ, whose submission was to not accept the plan, is relieved and happy:

InternetNZ Executive Director Keith Davidson says it is very good to see Government has recognised the issues, and is committed to ensuring a robust operational separation plan that correctly incents the relevant divisions within Telecom. “Ideally the wholesale manager should have little or no group incentive and InternetNZ is pleased to see that a limit will be put in place.”

The changes needed are not huge, but of great significance potentially.  Telecom today is a very different beast to a few years ago and are generally working well towards a structure where there will be greater competition and investment.  The Minister deserves credit for not rushing the final plan by sacrificing quality for speed.