Some context for NZ's harsh new copyright law
1) You're rickrolled by someone, and infringe on whatever music label owns the rights to Rick Astley's song.
2) Someone emails you a newspaper article in full, meaning you're downloading copyrighted material.
3) You fire up iTunes, turn up the volume so that people near you can hear the songs that you bought. Maybe loud enough so that people on the street can hear the music. Where's your license to do that? Don't have one? Oh dear... three strikes.
If you speak to IP and entertainment lawyers like Chris Hocquard, they'll tell you that the above won't lead to any consequences and that anyone saying otherwise is "hysterical".
That however depends on if the money that could be squeezed out of you outweighs the cost of shaking you down for it. We all hope that New Zealand won't see bullying like ASCAP in 1996 threatening the Girl and Boy Scouts in the US for singing copyrighted songs at their camps, but if the rights holders can make a quick buck out of shaking down small businesses playing the radio at their premises, it's a reasonably safe bet that they will do so.
This is all about money and intimidation and not about fairness and justice, unfortunately. If you're surprised that both Labour and National support the world's harshest copyright law, then don't be. In 2007, two years ago, I spotted that New Zealand was mentioned in the International Intellectual Property Alliance's Special 301 report.
In brief, it works like this: copyright holders through the IIPA submit reports to the US Trade Representative. As you can imagine, if the USTR has a country down as a "nation of pirates", a free trade deal isn't going to be forthcoming with the USA. You can have a read here on IIPA's site (PDF) on how New Zealand has fared in the past in the eyes of the rights holders. The report is under copyright, so I can't quote from it.
This isn't a conspiracy theory, but the reason why the politicans introduced the harsh new law that nobody apart from the rights holders asked for. Now we, the people who somehow authorised the politicians to criminalise our actions en masse have to decide whether or not the free trade deal was worth it, and also perhaps think about if we're still a sovereign, democratic nation as such. I'm starting to have some doubts about that, actually.
What it does mean, ultimately, is that the copyright law won't be changed. Sections 92A and C won't be repealed. You're not going to find a single politician with the two major parties in support of repealing the law that was dictated to them by the entertainment industry and their lobbyists.
That's the political context that you may or may not agree with. The only way to change it and again, I don't believe for a second that this will happen, is through large-scale civil disobedience. If you're against the new law, organise yourself and test it - and make sure everyone knows you're doing so. Then we'll see if ISPs will act like cops and cut off hundreds of thousands of Internet users' accounts, close down the connections to schools, libraries, businesses etc. It's not very hard to do and remember, the Internet gives you massive scale and leverage. NZ may lose the free trade deal but with the world economy going down the drain, how much is it worth anyway?
Finally, thanks to Dylan Horrocks and Creative Freedom Foundation, for an excellent historical (NOT HYSTERICAL!!) perspective on the copyright poo fight:
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Got the snip
Comment by deaf leopard, on 22-FEB-2009 21:10
Juha, yes your article is definitely hysterical. Sorry.
The code I read on the TCF website says one notice per month for at least three months. There are quite a few hoops for a rights holder to jump through to issue a notice.
If thousands of people are sharing thousands of songs and movies, who do you think will get targeted? Those people (who deserve it), or the ones you describe above?
But, why not try what you're suggesting, after 1 March, as an experiment on behalf of the community. I'd be curious to see how far you get.
And that cartoon. Since when is Internet a human right? Try that on your ISP the next time you don't pay your bill. Do WoW and porn qualify as human rights too? :-)
Comment by foobar, on 22-FEB-2009 21:41
@deaf leopard: I think you are not getting the cartoon. It's not about 'not paying the bill', it's not about 'Internet as a human right' either. The cartoon - I can't believe this has to be explained - is about families sharing home made videos where the music is incidental.
Communication amongst family members and friends, free and FAIR (!) use, even of copyrighted material. But the cartoon refers to what actually has happened in the past. You may have heard about the case where someone's home video of their baby had some music in the background (some radio was playing, so it got recorded with the rest) and the 'rights holders' came after them for that.
Sure you have heard about that?
Yes, I think the disconnect is not as quick and easily done as Juha described it in his article, but your sarcastic questions in the end are just that: Sarcastic, and not relevant to the discussion at all. Don't throw red herrings around, which just distract from the real issues...
Comment by Hamish, on 23-FEB-2009 08:50
Also at @deafleopard, the code simply states how a small number of copyright holders and the major NZ ISPs will work together. RIANZ and ARPA represent only a small fraction of the copyright material that you could possibly infringe upon - both local and international content. W/regard to human rights - the universal declaration of human rights, article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. We should think very carefully about removing someones internet access in this day and age. Too many people rely on it for income, communication and information for it to be put at risk by bad law.
And, of course, we might not always have such a benign governments and/or judiciary. The assurances of todays authorities don't count for much. The standard defense is that "yes the law is rubbish, but it will never be enforced". I suspect that most legislators agree - and perhaps the law is deliberately vague to appease overseas interests while being totally unenforceable. Then again, wouldn't it be better to have real laws instead of pretend ones?
Comment by barf, on 23-FEB-2009 12:38
great reading Juha, thanks
interesting to see another person draw the same free-trade / ACTA conclusion.
Comment by deaf leopard, on 23-FEB-2009 20:55
@foobar
I must have got distracted by all the red herrings, and I haven't heard of the baby music thing you mentioned. But it sounds like another red herring, or doees it have to do with Section 92 or the same law in another country?
As for red herrings, the pong emitting from this blackout is strong. Internet as a human right, and guilt on accusation. Both are lies, or to be very generous, wildly extravagant use of the language.
No one has convincingly justified either of them that I've seen, but the spreading of fear, uncertainty and doubt continues. Fascinating to watch how feral it is, and with so little substance.
If you disagree, I'd welcome you showing exactly how there is guilt by accusation. Please use a dictionary to find out what these words mean, and support your argument with direct quotes from Section 92 or the code on the TCF website.
Chris Keall's articles in the NBR were more enlightening than most of what I've read, they're worth a read, go ahead and google for it.
@Hamish
I'm willing to wager that if you broadcast your views about Section 92 to your suburban neighbourhood at 3 AM with a 140 decibel loudhailer, you will lose access to your loudhailer quickly. Without trial. Because that's how the Noise Control works. Is that a freedom of speech issue too?
Freedom of speech has limits even in the US where they usually take these things too far.
Comment by Screeb, on 24-FEB-2009 01:32
deaf leopard, your loudspeaker analogy falls flat. Noise control officers have the legal authority to take away some of your rights if you are invading the rights of others, and you will surely be able to contest it in court. Additionally, noise control officers won't take away your loudspeaker unless they verify that the volume actually exceeds the noise limits, or is unlawful in some other way. In other words, it is not enforced on accusation, is verified by an officer with legal authority, and is disputable in a court of law. Conversely, for S92a, claims are enforced on accusation (there is no part of the law that specifies that the ISP must verify that you did indeed break the law), not verified by a legal authority, and not disputable in a court.
Comment by deaf leopard, on 24-FEB-2009 18:51
@juha
"I can honestly say that the consequences of the new law meant a "guilt upon accusation" principle coming into effect."
This is incorrect in my opinion. Saying it's true doesn't make it so. Would you please provide quotes proving this, as I suggested? That's the only way to settle the point.
I had a look at the CFF site last night and I see they haven't managed to show this either after all this time.
So I still say it's a lie.
Section 92 isn't about guilt, and there's nothing that says accusation is enough. The code on the TCF website isn't about guilt or accusation either.
To the contrary, Section 92 requires reasonableness (which guilt on accusation would not be), and the code the TCF put together is surprisingly protective of end users if you take the trouble to read it.
@Screeb
"the legal authority to take away some of your rights if you are invading the rights of others"
Interesting how that is an exact description of what happens under Section 92. ISPs are given legal authority to take specific actions in specific circumstances.
There are lots of times when people other than courts are given authority to decide things. Maybe you don't pay your ISP bill and they terminate you. No trial. Maybe you speed or drive in the bus land and you get caught by the camera, and you get fined. No trial. Maybe you get fired by your employer, and lose access to your work Internet account. No trial. Your neighbour's tree grows over your property, so decide to trim it. No trial needed. And so on, there are countless examples.
That makes society function reasonably and means we don't need lawyers and courts and police for every single thing. What an awful society that would be, sounds like a police state to me. I don't want that. Let them deal with the rapists and murderers.
"it is not enforced on accusation, is verified" ..... "and is disputable in a court of law"
Interesting how that is an exact description of what happens under Section 92. That's the second time, are you arguing for or against my analogy? :-)
Out of curiosity, what makes you think you can't appeal to a Court under Section 92? What makes you think the usual legal process like injunctions wouldn't apply? Please provide a quote from the law saying this.
"Conversely, for S92a, claims are enforced on accusation"
Please provide a quote that says that. It's simply untrue. It wouldn't meet the legal requirement of reasonableness that's in the law.
By the way, on the whole freedom of speech argument, I don't see how infringing other people's copyright is necessary for freedom of speech issue. It's repeating other people's words.
Freedom of speech is about saying your own words, not repeating other people.
Comment by deaf leopard, on 25-FEB-2009 21:03
@juha
"trolling more than anything"
Because I disagree with you? :-)
I feel I've raised valid questions that you have not answered. But it's your blog so I'll shut up if that's what you want. (Or is that a freedom of speech issue.) <- joke
"read this Computerworld story"
Ok, I've dutifully gone and done that now. It's one view of the world I suppose. How does that answer my questions?
"TelstraClear"
So, TelstraClear has a policy that's as cheap as possible for them. It sounds unreasonable to me but then I don't have any idea what the Australian law is.
I'm not sure how that answers my questions, or even if it's related to Section 92 at all, it could easily be different law with different requirements.
"None of the examples you give above are non-contestable"
Yes and I don't see why it's any different for Section 92.
You would say that the rights holder notice is invalid for some reason, because it wasn't you, or you were allowed to download that movie. You would say that the ISP policy wasn't reasonable or appropriate.
I haven't seen anyone show how rights of injunctive relief are taken away, or compensation if an ISP or rights holder gets it wrong, or a claim of misleading and deceptive conduct if the notice has no basis.
Or you could just use the appeal process in the code the TCF put out.
"under the wrong blog entry"
Not sure why, I was commenting on what you said and what the cartoon said, and the conversation went from there. I can post under another blog entry if there's a better one, I don't follow your blog regularly so please forgive the ignorance. But I get the impression you'd rather I didn't post at all on your blog.
I don't mean to upset you, perhaps you have just been strung along by people with an agenda, but as an observer a lot of the things that are being said seem a bit ridiculous. And usually it's the people that say things that take responsibility for making sure they're right (before they say them).
Again, sorry if my questions about what you said have offended anyone, but the things that are said are quite extreme and I do think they deserve clear justification.
Comment by deaf leopard, on 26-FEB-2009 20:52
@juha
I went back and read the TelstraClear article again. Sorry I must have read it too fast, reading Telstra and stuff that didn't relate to Section 92A made me think it was about Australia.
I was talking about Section 92A in my previous comments, I should have been clearer.
I went and read Section 92C too.
I think the only thing Section 92C seems to do is give ISPs extra protection they didn't have before. Without Section 92C you could probably say the ISPs are obliged to police their users' content, and Section 92C basically says they don't need to.
I don't see why Section 92C would make TelstraClear disconnect people any faster than before, probably they were acting exactly the same way without Section 92C.
The article is a bit strange because it makes it sound like TelstraClear is complaining about getting extra protection. Maybe there's a bit of selective quoting and journalistic spin going on.
Did I miss something?
Also while I was reading I saw there's a Section 92D that sets out minimum obligations for notices. That didn't exist before, if I'm understanding it right, it's saying that copyright holders can't just make accusations.
Which implies that without Section 92D, they could.
Unless I'm missing something, I'm really confused why anyone except rights holders would be worried about Section 92C since it's giving users and ISPs more protection than they had before.
Comment by Sara Foerg, on 30-JUL-2009 09:35
So what is the penalty of breeching copyright?
Is it just a fine or can you g to jail?
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Comment by Jack Yan, on 22-FEB-2009 12:11
I guess we should not be surprised that a PM who is a Merrill Lynch alumnus turns out to be a technocrat entirely supportive of the down sides of globalization. This is already rearing its ugly head as the mainstream media ignore the story.