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Ultimate Geek
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Topic # 84844 9-Jun-2011 06:09 Send private message

I know we all have our views on Copyright Infringement and how the problem is dealt with, well here are my views as to why the newly supposedly improved 3 Strikes Law fails badly.

So lets just start off with a simple question "Isn't the NZ legal system supposed to be where you are presumed innocent until proven guilty beyond reasonable doubt or has that law been changed as well? "

Copyright infringement for many is linked to filesharing often in the form of using bit torrent format and the below will explain how this law fails when it comes to Bittorrent users.

This bill presumes guilty until proven innocent but can not prove beyond reasonable doubt that the person they send the alleged infringement notice to is the person responsible for the alleged infringement.

Simply put argue your case. 

As there is a chance that one day you (the Bittorrent user) may be presented with a legal notice that at said time on said date your ip address was found and believed to be in breach of copyright. 

Here's the simple part for Bit Torrent users anyway.  There is no proof (even with that notice) at all that you personally were responsible for said copyright breach.  All they can actually prove is that a title linked to your internet service is possibly in breach of copyright of their intellectual property. 

Now there 2 easy things you can do at this stage

1 being roll over and say sure your right i did do it and take what they feel is just and then deservedly you accept the judges decision or

2 ask for proof get them to show the end product where is their intellectual property that directly links to what your infringement notice is claiming. 

Lets use a movie Iron Man for example. 

What evidence have they presented to the court??? All they have proven that at blah time on blah date a file from (or is it on) your ip address was being uploaded & had the same name (Iron Man) as one they believe contained their intellectual property (IP).

They will not be able to show that what you were downloading was in fact Iron Man it practically is impossible to prove it.

Say the Iron Man file was 1 gig in size ask for them to produce a Iron Man file of 1 gig that was uploaded solely from your ip address. This is something that they simply will not be able to do. 

If by some tiny chance they can and lets face it ain't going to happen you fall back to the simple "how can you be certain it was me" approach again asking them to prove that at that time of the alleged infringement you were the person who was responsible for the file being uploaded.  You see (recent events really help here) there's the truth that we as internet users are under constant attack from hackers (hmmm Sony anyone) who can use many different techniques to get your pc to do many different things.

What is amazing is that this bill (and others like it) has been pushed on internet users worldwide with very little success by the Entertainment Industry.  This is a industry that is refusing to adapt at a rate of which the public have adapted. 

They want to keep profit margins high (and of course why wouldn't they) so they make up figures about claimed losses based on a inaccurate ratio of 1 person downloaded my IP so thats 1 lost sale.  However not everyone who downloads something for free would have paid for it in the first place. Of course then there's the reverse someone downloads something for free likes what they got and goes out and buys it and or possibly other similar works to show there support of the time and effort put into making the item in question.  Also if your are using that same model of 1 download = 1 lost sale does it not make sense to question the legality behind a rental agency like a video store they purchase an item once giving one royalty to the IP rights holder then go about passing that on to as many people as possible for financial gain, whereas most filesharing is for personal use only not financial gain.    

How can they be claiming to be losing billions of dollars to Copyright Infringement yet for some profits are continuing to rise?  This is even the case when sales themselves our down as the companies have adapted to new ways to make the same product for less.

The law fails as do the rights holders who are failing to adapt.

For each specific industry there are ways that they have used to allow their Intellectual Property to be used for free. I am sure most of us have heard of Shareware or a demo of software or game.  For the music industry it's called the Radio (although radio stations pay for the songs use or your friends recommendations (MP3 Players anyone ever asked hey what are you listening to?) also don't forget that until not that long ago it was illegal to format shift a audio file even if you owned the Tape / CD or other type of audio format (Mp3,Flac) so making a mix tape / cd or putting songs off these onto your MP3 players was illegal.  Last and certainly not least the movie industry does it with Trailers and or copies of their material to the media so they can (hopefully) give it a good review.

As you can see by the examples above the free try before you buy model is how companies often promote their work yet for some reason they can not see that it's not all doom and gloom how they want us to believe. 

The 3 strikes law and it's industry driven origin is something that really needs to be adapted to suit the customers needs not something that strives to take away peoples rights so they can keep profits for private industries at a maximum.

The 3 strikes law is something that can not work to serve as a true deterrent as it is in my opinion fundamentally flawed and even if the amount of copyright infringement does decrease there is not one bit of evidence that can or will show that this will actually lead to protect the rights holder and seeing them compensated accordingly.

Lastly I would like to point out that I believe that Copyright Infringement is most definately a problem worldwide but not one that can be resolved in the way this law treats it by potentially making criminals of literally any person or business that has a internet connection.  It is one that would be better served helping rights holders come up with better ways to adapt their Intellectual Property to the needs and requirements of those that the law in it's current form persecutes.


Forgot to add please feel free to comment or share your opinions especially if I have gotten something wrong or if my post breaches any rules then please accept my apologies.

John

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780 posts

Ultimate Geek
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  Reply # 479166 9-Jun-2011 06:40 Send private message

It's a bad law, you cannot trust the copyright holders to collect valid ip's. These bozo's probably can't even convert to NZ local time, nor do they know about daylight savings.

The new law can be used for very malicious purposes. For example, what if a NZ rights holder has a major dislike for some person. The rights holder could fabricate evidence with absolutely no come back for the victim (assuming they can get the victims ip address).


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  Reply # 479167 9-Jun-2011 06:46 Send private message

Cant you just use a Proxy and be done with it?

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  Reply # 479168 9-Jun-2011 07:10 Send private message

If they adopt the 'cut off rule' then it will fit the UN ruling.

The guilt by accusation is rough, my ISP currently won't provide me with my information on what my IP address was connecting to unless I get a court order.
http://forums.slingshot.co.nz/viewtopic.php?p=51768#p51768
So getting help from your ISP to prove your innocent is really hard.

I think Slingshot will have it's Torrent cache taken down within 3 months of this law coming into force.

This law will only see more money going overseas to find VPN, seed boxes and the like.

This law was only passes in the hope that NZ will get a free trade deal with the USA, which is a hopeless dream for the 70's. It's been so long that really would not effect NZ very much at all as there are many other economies that would deliver NZ better value to trade with. NZ should not have to adopt all American laws to trade with the USA.

National won't be changing this law, they are too busy considering who can and cant have babies (and people got upset at the last govt for considering in people could or couldn't have incandescent light bulbs).

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Ultimate Geek
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  Reply # 479169 9-Jun-2011 07:22 Send private message

innocent until proven guilty is a myth.

This law is no different to the boyracer laws, or holding someone in remand before a court apearance, all assume guilt and apply punishment before guilt is proven.




I know a little more than nothing but not much...

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Uber Geek
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  Reply # 479183 9-Jun-2011 08:40 Send private message

All valid arguments, but nothing new, and I agree wholly.

My only comment is that (as I understand it) the law firmly puts the liability on the ISP account holder, who actually made the download is irrelevant (therein lies your 'unfair' argument)

In that way its much like a speed camera ticket - if you own the car you are liable until you prove it was someone else (i.e. I dob in your mate/wife/11 year old son etc)




Artificial intelligence is no match, for natural stupidity



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  Reply # 479192 9-Jun-2011 08:59 Send private message

To the OP.

I don't know how they are actually going to do it, but I know it's not going to necessarily be on just the title. Think about it... The title of the file is not the unique key - there is a unique hash that identifies the file.

Assume that the rights holder downloads the same file (It's theirs remember!) to confirm that the file with the unique hash is in fact what it says. Now, anyone else seen downloading or seeding the file with that hash can be VERY reasonably assumed to have the copyrighted file.

TL;DR - It's not just a filename, they can be sure it's a copyrighted work of theirs.

Cheers - N

k14

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Ultimate Geek
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  Reply # 479194 9-Jun-2011 09:12 Send private message

kiwitrc: Cant you just use a Proxy and be done with it?

More information please...
Talkiet: To the OP.

I don't know how they are actually going to do it, but I know it's not going to necessarily be on just the title. Think about it... The title of the file is not the unique key - there is a unique hash that identifies the file.

Assume that the rights holder downloads the same file (It's theirs remember!) to confirm that the file with the unique hash is in fact what it says. Now, anyone else seen downloading or seeding the file with that hash can be VERY reasonably assumed to have the copyrighted file.

TL;DR - It's not just a filename, they can be sure it's a copyrighted work of theirs.

Cheers - N

Not necessarily. You could download 90% of the torrent, have a seed ratio of 10+ but still not actually have anything that you can make sense of in regards to copyrighted material. Do they have to prove you downloaded the whole torrent or just have to prove you download one piece of it?

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Uber Geek
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  Reply # 479200 9-Jun-2011 09:23 Send private message

k14:
kiwitrc: Cant you just use a Proxy and be done with it?

More information please...
Talkiet: To the OP.

I don't know how they are actually going to do it, but I know it's not going to necessarily be on just the title. Think about it... The title of the file is not the unique key - there is a unique hash that identifies the file.

Assume that the rights holder downloads the same file (It's theirs remember!) to confirm that the file with the unique hash is in fact what it says. Now, anyone else seen downloading or seeding the file with that hash can be VERY reasonably assumed to have the copyrighted file.

TL;DR - It's not just a filename, they can be sure it's a copyrighted work of theirs.

Cheers - N

Not necessarily. You could download 90% of the torrent, have a seed ratio of 10+ but still not actually have anything that you can make sense of in regards to copyrighted material. Do they have to prove you downloaded the whole torrent or just have to prove you download one piece of it?


I think the OP and some other people are missing the point, they don't have to prove anything - you have to prove you didn't download it.

And how could you possibly prove you didn't download the whole file?

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Reply # 479212 9-Jun-2011 09:49 Send private message

jbard: I think the OP and some other people are missing the point, they don't have to prove anything - you have to prove you didn't download it.


Exactly. Was going to write something very similar myself after reading the first couple of posts... 




Vodafone VDSL:

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Uber Geek
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  Reply # 479226 9-Jun-2011 10:32 Send private message

k14:
kiwitrc: Cant you just use a Proxy and be done with it?

More information please...
Talkiet: To the OP.

I don't know how they are actually going to do it, but I know it's not going to necessarily be on just the title. Think about it... The title of the file is not the unique key - there is a unique hash that identifies the file.

Assume that the rights holder downloads the same file (It's theirs remember!) to confirm that the file with the unique hash is in fact what it says. Now, anyone else seen downloading or seeding the file with that hash can be VERY reasonably assumed to have the copyrighted file.

TL;DR - It's not just a filename, they can be sure it's a copyrighted work of theirs.

Cheers - N

Not necessarily. You could download 90% of the torrent, have a seed ratio of 10+ but still not actually have anything that you can make sense of in regards to copyrighted material. Do they have to prove you downloaded the whole torrent or just have to prove you download one piece of it?


I believe it has been long established that you do not need an entire file to be guilty of copyright infringement. 
Under the US law you can have a small amount for 'fair use' (if that even applies in NZ, which I'm not sure about)  but anything more than, say, 30 seconds or so would be deemed copyright infringment.


As for how do you prove you didn’t download something? I have no idea.  Even if you could prove you weren’t home at the time that proves nothing since you can setup programs to download at whatever time you want.

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  Reply # 479242 9-Jun-2011 11:01 Send private message

scuwp: All valid arguments, but nothing new, and I agree wholly.

My only comment is that (as I understand it) the law firmly puts the liability on the ISP account holder, who actually made the download is irrelevant (therein lies your 'unfair' argument)

In that way its much like a speed camera ticket - if you own the car you are liable until you prove it was someone else (i.e. I dob in your mate/wife/11 year old son etc)


You can't "dob in" a 3rd party. The account holder is liable. Full stop.


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Master Geek


  Reply # 479293 9-Jun-2011 12:33 Send private message

The "3 strikes" element to the law is interesting too. It actually makes me less concerned about the consequences of downloading stuff, because I know that the worst that's going to happen to me first time round is a notice. If I get a notice, the risks will ramp up a bit, but how likely is that really?





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Ultimate Geek
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  Reply # 479303 9-Jun-2011 13:03 Send private message

Wow honestly I didn't expect to see so many people replying so thanks to all those to who did read and have replied.

The point I am making is that of which we all know. The law is flawed majorly and goes against the basis of the NZ legal systems innocent until proven guilty. Most definitetly the law does presume guilt until proven innocent when it comes to holding someone in remand.

Now to address the innocent part and how to prove it. There's actually one thing that would work perfectly in this although it seems a ridiculous thought.

Show your torrent programs stats and your upload ratio assuming it was a well seeded torrent would clearly show that what they uploaded to verify the file was their's if the upload ratio was set low enough would actually prove you have not in a lot of cases uploaded enough for anyone to prove beyond doubt it was a fully working file.

Say for instance again using the Iron Man 1gig file you set that to download at full speed and upload at 1kbps. It would be fair to say that such a popular thing could literally download in minutes (or hours) whilst uploading very little.

Take for example the last tv show i got which (not available in NZ and the main reason i download tv shows) was 707mg I only uploaded 82.2meg at a upload speed that's set to 15kbps upload 82.2mg / 15 = 5.48mg and although there are plenty of programs that let you play a torrent before it's done the likelyhood of 5.5 meg playing is slim to none. Yes theres the identifiable hash thing which verifies the file but still that small amount does leave a lot to query plus that all of that 5.5meg went to the 1 person is slim to none. The bittorrent format is not going to really show enough to allow someone to possibly be proven guilty beyond doubt which is a shame that this law seems to care nothing about proving your guilt.

There's a lot of ways to bypass this law like vpn's, seedboxes held overseas in countries that don't have the same types of laws.

The failings of the law itself is where the whole problem lies and if enough people were to complain about it then sooner or later they actually have to take notice. To take away somebodies right to access the internet is wrong period.

If we (as in people of NZ) can get away with smoking marijuana on parliament grounds when done in numbers surely if we were to actually stand up and & take a stand then sooner or later they would have to readdress a law that can so easily be covered up to avoid detection.

There is way too many arguments as to why the law is flawed and like you say a rights holder can simply use it malicously as can a hacker.

Who would of thought a computer possibly being used by someone that you don't necessarily approve of using your pc in that manner.

Personally I opt for my right and freedom of choice to continue in the same manner I do now and that is to use the internet how and when I want not only is it impossible to prevent me from doing this even there's simply way too many options available for a person to be able to access the internet to enforce it.

Simply put there's 2 options as I stated earlier New Zealanders keep doing what they have and stand up to fight against this law or roll over and get shafted by a law that although has the right intention just simply is not going to work in it's current form.

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Ultimate Geek
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  Reply # 479310 9-Jun-2011 13:14 Send private message

question: Are you advocating your "right" to steal someone elses property using your internet connection?

If you are, are you complaining that the tool used for theft be taken from you? 




I know a little more than nothing but not much...



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Ultimate Geek
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  Reply # 479314 9-Jun-2011 13:19 Send private message

There is of course the actual 3 strikes part of the law to consider as well if you are caught by a rights holder 3 times they can apply for youto go to court of which a consequence is possibly that your connection can be disconnected.

That is the same rights holder having caught you out 3 times before they can actually ask for the matter to go to court and the chances that you get caught at all are already very slim but as the law is written it's the same rights holder that needs to complain 3 times before action can be taken.

I am all for changes that encourage people to do right by the rights holders but we pass a bill in NZ where there is not a lot of legal options for us as users to get content and the government needs to address that issue.

Of course when Fibre comes along it's going to be a even smaller window of opportunity for the rights holders to catch you.

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