S92A - Could have worked better if ISPs had more clout

, posted: 18-Feb-2009 20:11

I think people have got a little carried away with chinese whispers about what S92A actually specifies.

  1. It doesn't specify any "3 strikes" policy
  2. It doesn't specify that ISPs must disconnect users on receipt of an infringement notice.
  3. It doesn't specify what a "repeat infringer" is - whether its 2 or 10 or 100 infringements.
  4. S92C does specify where an ISP will face liability for content stored by the ISP where it is aware that the material is infringing, but this does not apply to cached content nor incidental storage during transmission to customers.

It merely states that an ISP must "reasonably implement" a policy to disconnect users. One way you could interpret that is to say that they must just have a mechanism should a court order that a user be disconnected.

Correct me if i'm wrong, but I guess they are probably scared of being sued by copyright holders for their policy not being reasonable, and what we can see from the drafting of the TCF CoP is that what the Copyright Holder companies think is reasonable is quite different to what the ISPs see as reasonable.

What the copyright holders see as being reasonable is the ISPs disconnecting users upon accusation even when they may not be explicity required to do so by S92A, and the ISPs are giving in to this demand for fear of litigation costs because as has been seen elsewhere, those copyright holders have plenty of resources available to keep ISPs tied up in lengthy and expensive litigation.

So this is just for those people who think it's the government that is inflicting those conditions that have come about because of S92A. S92C is quite bad in terms of Guilt Upon Accusation though.

Dont get me wrong, Judith Tizard had vague legislation drafted which is completely open to interpretation and unfortunately it has left it open for all these nasty things to come about.

All that really needs to happen is for the first person to be disconnected by the ISP to sue the ISP for their policy being unreasonable. Although thats not something I would like to see inflicted upon them but if National doesn't repeal or at least delay and rewrite this section then it may be the only avenue available.

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Comment by barf, on 19-Feb-2009 16:25

I find it interesting that you say: "this is just for those people who think it's the government that is inflicting those conditions that have come about because of S92A".

Inflicting is to "thrust upon" or to "impose".
Imposing is to "establish or apply by authority; to be an inconvenience".

So, you are mistaken if you absolve the government of blame, because National is using an MMP majority to pass the law in question. And if National cared, surely it would have been reviewed again by select comittee.

In New Zealand's National party, serving stakeholder interests is foremost and auspicious governance is second. The public is not a powerful stakeholder in National, when compared to lobby groups and 3rd party stakeholders. National fail in the civic responsibility of passing laws that serve in the public interest, to combat crime and to protect the vulnerable. This law majorly serves a private interest, there is little more to debate other than specific details.

The government deserves a public backlash for a professionally disguised apathy towards the groundswell of public opinon. What National MPs are on YOUR side of the S92a argument?

In my opinion, and like it or not, this is typical of a right-wing, proxy party like National, who irrefutably serve the interests of stakeholders before the general public. It is a crime against democracy that our politicians should choose, to act on behalf of lobby groups before the general populace.

Feigning plebianism surely fishes out the people who 'grow up' to posess right wing views. Socrates teaches us that noone is truely evil, only ignorant. We currently see National being ignorant, I doubt they are motivated by malevolence.

Author's note by mushion22, on 19-Feb-2009 16:56

Yeah I was mainly just wanting to clarify that the law itself doesn't specify those things, it is the interpretation by the copyright holders and ISPs that has lead to the guilt upon accusation policy for S92A. S92C is a little more dubious though.

The government should absolutely repeal/delay & rewrite this amendment.

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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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