Kiwiblog

Hamish Fletcher at NZ Herald reports:

Internet failures that have forced the Companies Office and 14 other Government websites offline for four days have been described as an international embarrassment.

Other websites caught up in the outage include the Personal Property Securities Register, Intellectual Property Office and Ministry of Consumer Affairs sites. …

The MED blamed the outage on upgrade work to the servers hosting the sites.

Unscheduled outages should be measured in minutes, not days.

The companies office site especially is a high demand site.

I have some experience with such a site. I was a director from 2002 to 2010 of the NZ Domain Name Registry Ltd, which is known as .nz Registry Services (NZRS). They operate the registry for .nz domain names.

The service level agreement with the Domain Name Commission Ltd (which I now serve on) specifies that the registry must be available 99.9% of the time (excluding scheduled outages notified in advance) on a monthly basis. This means that any unscheduled outages must last no longer than 43 minutes over a month, or the company would be in breach of the SLA.

To help achieve that, a lot of redundancy is built into the system. In fact there are parallel systems in Wellington and Auckland, so if one city is unavailable, the other system can kick in.

If NZRS had an unscheduled outage of four days, I imagine there would have been resignations from both the board and senior management, unless it was for the most exceptional and unavoidable reason. I certainly would have offered my resignation as a Director to the shareholder (InternetNZ).

The companies office website is excellent. I use it often, and it is one of the reasons we score highly on ease of business surveys. You can establish a company in under an hour, all online. But the more vital a service becomes, the more important it is that you ensure it remains up.

MED should at a minimum commission an independent report into what went wrong, and what they need to do to prevent such an outage in future.

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 has released a proposal for the review of s92A. One can give feedback on the proposal until Friday 7 August.

The Proposed Approach: Summary

Phase 1- First Infringement and Cease and Desist Notice Procedure

Where a RH considers on reasonable grounds that there has been online copyright infringement of one or more of its works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber
concerned. This notice must then be forwarded by the ISP to the subscriber. If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity to reply to either notice by way of a response notice directly to the RH with their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.

There will be issues here of who do you define as an ISP and a subscriber, and also quite importantly do ISPs get their costs covered for looking up who was at an IP address at a particular time, and passing a notice on. But the principle of the ISP passing on the infringement notice to the subscriber seems sounds to me, so long as costs are resolved.

Phase 2- Obtain Copyright Tribunal Order

Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).

This seems appropriate. It should be an independent body such as the Copyright Tribunal that should have the power to order contact details of an alleged infringer. This is similar to how a court can order an ISP to name a customer if needed for a court case such as defamation.

Phase 3- Copyright Tribunal

A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The Copyright Tribunal will be convened unless agreed otherwise.

The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate the subscriber’s internet account.

I like the ability for mediation. Again this looks a significant improvement on the original which has ISPs deciding who was guilty.

However there are still aspects I am uncomfortable with. I am not convinced that termination of Internet access is an appropriate penalty in a world where the Internet is so critical. No other offence or infringement has this as a sanction. Even extremely serious offences such as trading child pornography, doesn’t have a penalty where a Judge can order your Internet cut off. They send people to jail, and fine them.

I do support the option of a fine, rather than merely damages.

Also have queries around the cost of filing a complaint with the Tribunal (what will it be), and what the total cost of the regime would be, and comparing that to the benefits of this regime.  If MED have some ballpark estimates, it would be good if they could share this.

Also of considerable concern is that the ISPs are still piggy in the middle to some degree. When you get into the fine print of the proposal, you see ISPs are required to still record infringements notices against customer accounts etc and work out when they expire. Now this means an ISP has to reconfigure their CRM database. For some of the bigger ISPs, this could well cost them over $500,000 to do. Over the entire industry of 100 ISPs, the cost on these businesses could run to many millions of dollars. Will there be reimbursement for these costs? Is a recession a good time to be forcing extra costs on these businesses?

This is definitely a big improvement on the original s92A, and the Government should be praised for that. But there still remains significant questions about whether this is the best way to help rights holders combat copyright infringement.

That’s my initial take. I imagine I’ll have more to say once I’ve had more time to consider the detail.

Pleased to read in Computerworld that The Chief Executive of the Ministry of Economic Development has appointed Bruce Parkes as Deputy Secretary for telecommunications and energy.

While individually there are many fine civil servants, collectively there is a legitimate criticism that there can be a lack of private sector experience. Bruce has held senior positions in both the telecommunications and energy sectors, and it is great to see someone with that background appointed to a senior role.

I’ve actually taken part in Commerce Commission hearings, on the opposite side to Bruce – when he was at Telecom, and I was part of the InternetNZ team. He was always very professional and didn’t let the areas in which you disagreed (which were a few) interfere with the relationship in the areas where you did agree.

The Government has announced that they are moving the trade division of MFAT (Ministry of Foreign Affairs and Trade) to the Ministry of Economic Development, to make clear that trade has nothing to do with foreign policy.

MFAT will now be known as FOAM, the Foreign and Overseas Aid Ministry and the MED will become the Trade and Economic Department (TED).

Winston Peters will continue as the FOAM Minister while Phil Goff has been appointed the new TED Minister.