Copyright Infringement Policing

, posted: 7-Jun-2008 07:50

After some amount of illustirous debate here I have decided I shall reiterate my philosphy on the matter. Top stuff from Phil (maverick) and Cecil (xnet) from WorldExchange Xnet for standing up for their company's policies in that thread.

Before people go getting the wrong idea:

I do not believe that all creative works should be in the public domain. I beleive it is appropriate to bestow the rights of distribution and use of creative works on their authors - otherwise there is little incentive for them to be creative other than for self entertainment purposes. The possibility of recognition and income from being creative is a strong incentive for someone to continue to be creative.

I do not believe that DRM software and mechanisms have no place on the internet. I thoroughly agree that, given the opportunistic nature of human beings, it is necessary to have mechanisms that ensure that content is obtained and used as authorised.

I do believe that DRM should not be restricted to certain platforms or devices. Copyright law does not exist to maintain exorbitant profits. DRM should reflect the principles of copyright - ie the protection of rights over creative expression.

There are two main issues I have with the upcoming amendment to the Copyright Act 1994 - the Copyright (New Technologies) Amendment Act 2008.

1) Is it appropriate to place any obligation and liability on ISPs to police the copyright compliance of it's customers?

2) Is it appropriate that ISPs are left to make a moral judgement in terms of their interpretation of the (vague) law?

We have an established judicial system in New Zealand of Courts and Tribunals. We also have various law enforcement agencies ranging from the Police, the Commerce Commission, Tenancy Services, Banking Ombudsman and so on. When I refer to "law enforcement" I mean agencies that act to ensure the law is followed and enforced.

We have the human rights commissioner. We have the privacy commissioner. Under all of these systems there is a process for complaint > independent review > acquittal or sentence.

Why, for copy rights, do we have a system that puts the onus on an ISP - a commercial entity - to decide whether a particular case is in breach of the law or not?

The only currently implemented process that I have seen discussed in detail goes something like this: Copyright holder/agent uses some mechanism such as a honey pot (please leave the morality of that to another discussion!) to detect the IP address and time that a particular internet host infringed some copyright material. Copyright holder/agent then notifies that host's ISP who look up the user using the IP address and time stamp, and fowards a Cease and Desist notice. Continued infringement results in account suspension.

According to this the provision for it being an offence to provide misleading notices was removed from the bill.
So: We have a system that involves third parties notifying an ISP of an offence, and that notification resulting in action without any legal offence being established by a judicial review.

This may not be the intention of the legislation, but it is how it is being implemented by at least one ISP. I understand the willingness of that ISP to protect itself against liability, but I believe that liability should be totally prevented by the law.

Add to the legal dilemma the fact that people are becoming increasingly reliant on internet connections for a range of activities from browsing, to telecommunications, to teleworking and so on. Assumably, ISPs also prefer to keep customers rather than disconnecting them over a trivial amount of copyright infringement. Keep in mind the current state of the population's understanding of the ethics and legality of obtaining media over the internet, as well their ability to determine whether they are actually infringing copyright.

In summary:
a) I dont believe it is appropriate for ISPs to be actioning orders to disconnect a user from anywhere other than a NZ court of law.
b) I believe that ISPs should be protected from all liability of traffic flowing over it's network and incidental storage regardless of whether it is aware that some of that traffic contains infringing material.
c) I don't believe that termination of an internet connection is the appropriate mechanism to combat piracy. Real legal fines and punitive actions are appropriate just like any other offence.

Edit: Edited some legalese that i tried to use inappropriately in the line about the onus on isps to establish breach.

Other related posts:
Android Froyo/2.2 Bug
Basic Workaround for lack of Steam download scheduler
Google Chrome Imgur Extension

Comment by sbiddle, on 7-Jun-2008 08:53

It's unfortunate that our Government essentially adopted new copyright laws that were based on what the music & motion picture industry wanted without taking into account the usage rights that many end users would expect.

We have too many stupid scenarios such as audio format shifting now bring legal (with the right to remove this status if they want) however ripping a DVD to your HTPC is still illegal.

Our new laws are already outdated before they were introduced and the reality is that the music, tv & motion picture are going to face fundamental issues years while they still try and continute with outdated flawed business models.

Comment by hellonearthisman, on 7-Jun-2008 14:30

I view alot of p2p torrent content as an artist, that normally would break copyright but because I am using section 44, it's not illegal.  I don't know how any ISP will be able to filter content for users of Section 44.

Comment by muso, on 7-Jun-2008 17:07

Hey noobster Judicial Review is when a judge reviews the decision of a member of the executive (ie a minister). 
But I agree with you on all other points.

edit: muso is a friend, and almost has his LLB so my bad. i'll let his blatant insults slide for now ;)

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Hamish Goodwin
New Zealand

Have a Bachelor of IT (Hons) majoring in Info Systems. Mainly focused on management in strategy with a bunch of development as well. Now a Capacity Planner in Wellington (No i don't really know what that means either...)

Like to play around with various gadgets, particularly networks and communications. Also like to babble and make bold assumptions and statements about various topics that catch my attention.

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