The new Section 92A

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.

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