Section 92 on the front page of Digg

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#189175 13-Jan-2009 12:24

Lets be realistic folks, there is the letter of the law, and then there is the spirit/intent of the law.

Clearly ISPs (and the RIANZ or RIAA who represent the copyright owners) are not going to care about people watching a youtube clip of their kid dancing to a piece of music that is copyrighted, and I would think judges would be inclined to agree. Whilst technically that might be infringing copyright, it is inconsequential and a waste of everyone’s time trying to get them all disconnected. If they did, then pretty much everyone with an internet connection would have to be disconnected – clearly an unrealistic prospect and clearly not what the law is intended to do.

Also, I‘ve had a brief look through the relevant parts of the legislation and cannot see anything that suggests the ISPs will be disconnecting people based on an unsubstantiated accusation alone with no evidence to back it up. It says that ISPs must have procedures to deal with repeat infringers, but nothing about there being no evidence required for ISPs to act, or ISPS not being allowed to conduct an investigation before acting. No ISP is going be prosecuted because it chooses to confirm accusations before making disconnections.

If an ISP disconnects a customer who is under contract and they are innocent, then they run foul of the CGA (consumer goods act) surely? If I was in an ISP’s legal team I would be making damn sure proper investigations were done to ensure only true infringers are disconnected. Pretty bad publicity otherwise.

As for the Telecom spoof ad, I’m not sure about NZ, but copyrighted works are allowed to be used/changed for satire purposes in the USA, so, if NZ is the same, then it would be fine.

holloway

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#189286 13-Jan-2009 17:27

NonprayingMantis wrote:
"As for the Telecom spoof ad, I’m not sure about NZ, but copyrighted works are allowed to be used/changed for satire purposes in the USA, so, if NZ is the same, then it would be fine."

Unfortunately in New Zealand you are not allowed to sample for the purposes of parody or satire. They are looking at reviewing this.

Fair Dealing is typically more restrictive than that of Fair Use.

"Clearly ISPs (and the RIANZ or RIAA who represent the copyright owners) are not going to care about people watching a youtube clip of their kid dancing to a piece of music that is copyrighted,"

Well they did care. It would not be reasonable to say that they're not going to care. Rather, the question raised is whether this use of material should be allowed.

That home movie had copyrighted music playing in the background... some say it was Fair Use but others claim it was copyright infringement. In New Zealand with Fair Dealing you would need a particularly noble ISP to listen to your appeal and to take on the risk reinstating that material. Because the law punishes before any trial (because it presumes Guilt Upon Accusation) it reverses the presumption of innocence and asks risk-averse ISPs to some how decide whether this is copyright infringement.

This is a good example of how copyright use isn't a black and white issue and how there are grey areas that ISPs cannot possibly decide. The proposition in this law is that an ISP can be an effective judge of copyright infringement, an expedient replacement for due process, and that only guilty people will be accused. If you disagree with any of these then I think you should take issue with this law.

By the way, with this particular case of home videoing it apparently may have been an automated detection and takedown with minimal human intervention so there's no need to "care" or for the action to be motivated by business case against the infringement. Infringement is infringement even when it's a remix like this one, or in other words...

"We are in the middle of something of a war here -- what some call "the copyright wars"; what the late Jack Valenti called his own "terrorist war," where the "terrorists" are apparently our kids. But if I asked you to shut your eyes and think about these "copyright wars," your mind would not likely run to artists like Girl Talk or creators like Stephanie Lenz. Peer-to-peer file sharing is the enemy in the "copyright wars." Kids "stealing" stuff with a computer is the target. The war is not about new forms of creativity, not about artists making new art.
Yet every war has its collateral damage. These creators are this war's collateral damage. The extreme of regulation that copyright law has become makes it difficult, sometimes impossible, for a wide range of creativity that any free society -- if it thought about it for just a second -- would allow to exist, legally. In a state of "war," we can't be lax. We can't forgive infractions that might at a different time not even be noticed." -- WSJ

...

NonprayingMantis wrote:
"It says that ISPs must have procedures to deal with repeat infringers, but nothing about there being no evidence required for ISPs to act, or ISPS not being allowed to conduct an investigation before acting."

The evidence isn't held up to court scrutiny, which is why we're calling it an accusation of infringement.

The ISP can perform an investigation. As said above I disagree with the idea that an ISP can be a court.

NonprayingMantis wrote:
No ISP is going be prosecuted because it chooses to confirm accusations before making disconnections.

The claim isn't that an ISP will be prosecuted if they confirm accusations, but that they can't effectively replace a court and so justice isn't served.

Firstly an ISP is not capable of confirming accusations in any reasonable way. They could confirm that an IP address was used by a customer but they can't verify the traffic because they don't log all traffic. Even with deep packet inspection (which most ISPs do not have) to summarize data packets the ISP has no way of independently verifying the evidence. In practice they will mostly rely on the evidence provided by the accuser. So, now we're down to evidence quality.

The accuser's evidence can be faulty. File-sharing evidence can be spoofed and all internet users can be framed by current techniques. This may currently be a rare occurence but with Section 92 the payoff for spoofing is internet disconnection and this may encourage more spoofing (of course but has yet to be proven). ISPs currently accept discredited evidence-gathering techniques and send warning letters to customers. We've seen that "bad publicity" isn't enough to make ISPs an effective replacement for a court: infact TelstraClear say that they don't check or verify, they take it down. Overseas we've seen 4000 take down requests inhibiting free speech and Apple confusing free speech with copyright infringement. With threats from copyright holders will ISPs risk an accusation of being lenient on crime if they demand quality evidence? Will they be sued for 'allowing' piracy?

Finally, if the evidence is of quality and the ISP acts on it then who's to say that the customers network wasn't compromised (as 25% of computers are). I've read a lot of 'tough on crime' comments from people who say that the internet connection is the responsibility of the owner, but I would compare it to a stolen car being used in a crime. What if a business has a hacked server distributing content over a weekend without the owners knowledge - thousands of files could be distributed (more than enough for repeated infringement) and yet the internet connection could be necessary for the business. Is it acceptable to permanently cut off that connection? What if a neighbour broke into your wireless connection with AirCrack-NG? Do businesses dependant on their internet connection now have to pay for a secondary back-up internet connection?

I'm against copyright infringement and I'm for due process. If we don't take the time to actually find the guilty then of course we will catch innocents with this blunt law.

Lets be realistic folks, there is the letter of the law, and then there is the spirit/intent of the law.

Ok, let's be realistic. This law has no formal appeal process. It has no punishment for false or malicious accusations. Presumably we can agree at least on this flaw in the legislation? There are more examples here that show problems in the law.

I don't expect the sky to fall on February 28th or for accusations to take down connections left and right. I do expect that in time we'll see examples emerge like we've seen overseas of these laws affecting free speech, public rights, and art.

On February 28th we may get a free market of ISPs all competing on their knowledge of copyright infringement detection techniques and Fair Dealing case law but then, realistically, this won't happen.

raytaylor

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#189322 13-Jan-2009 19:21

I just typed up a letter to my local mp in Napier

It starts off
"

My name is Ray Taylor. Recently for my first time, I took part in the general election. I never would have thought that so soon after becoming old enough to vote, that I would need to write to my MP for something that greatly concerns me. "

Ray Taylor

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patdude

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#189349 13-Jan-2009 21:21

To my mind, the whole section 92 issue seems to be a lose lose proposition for nearly all players involved.. http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10551701

holloway

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#189394 13-Jan-2009 23:32

Great article Pat!

patdude

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#189446 14-Jan-2009 09:49

There's another on the way... Policy is a blunt instrument at best - I wonder if the act will be pulled after a few months once everyone works out that the legislation is unworkable... I think we'll see a stampede to Usenet and where freetard geeks will get their fill of copyrighted music, movies, books, software etc and its untraceable... What about when the ISPs suddenly wake up to the fact that US copyright infringement complaints can be spoofed?....

raytaylor

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#189608 14-Jan-2009 18:50

spoofing - you stole my protest idea that might get me in a little trouble

Ray Taylor

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holloway

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#189819 15-Jan-2009 18:03

New Zealand Libraries are now voicing up about Section 92A

"LIANZA has written to the Minister for Communications and Information Technology, expressing LIANZA's concerns about:

(1) the extremely broad definition of internet service provider (it includes any person or organisation which has a website)

(2) the implication that ISPs will be required to act on accusations of illegal access of copyright materials by users (thereby reversing the legal principle that a person or organisation is deemed innocent until proved guilty)

(3) the provisions of section 92A, requiring ISPs to terminate the account of a repeat infringer (which, if the repeat infringer is a user illegally accessing or downloading in-copyright materials on a library public-access computer, may result in the library, and possibly also the organisation (e.g. council, university, school, etc) to which the library is attached, to lose all Internet access)."

NZCS have also been speaking up loudly this week

"The New Zealand Computer Society says a new law taking effect next month could see internet service providers (ISPs) having to cut off families and businesses, if a third party accuses them of copyright breaches.
"Placing ISPs in the position where they have to act on accusation alone, without proper judicial process, places them in an impossible situation where they are expected to take an unethical stance and action by potentially denying an essential service from Kiwi families and businesses, based on the accusation of a third party," he said.

"So either they risk breaching ethical standards of behaviour, or risk breaching the law.

"Guilt by accusation is not acceptable in any other area of law, not appropriate in New Zealand, and should be rejected in the same way it has been in many other countries where similar laws have been proposed, especially when it places law-abiding companies such as ISPs in this impossible situation." --source

DataCraft

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Master Geek

#189833 15-Jan-2009 19:15

New Zealand - Because of our population size is often used as a sample population for large comercial products, remember that docket prize system thing? That was rolled out here as a sample before they ran it overseas. I see this law as the same thing - 'they' want to see how well it would run here before 'they' eventually try the same law in the US and other parts of the world. I can't imagine that Judith Tizard thought this law up all by herself, she probably thinks an iPOD is a type of pea. Hopefully she will become the first victim of this stupid law.

freitasm

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#189838 15-Jan-2009 19:48

patdude: There's another on the way... Policy is a blunt instrument at best - I wonder if the act will be pulled after a few months once everyone works out that the legislation is unworkable...

Hardly. I was once told it's easier to make a law than to change it or revoke it...

raytaylor

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#189881 15-Jan-2009 22:03

...I can't imagine that Judith Tizard thought this law up all by herself, she probably thinks an iPOD is a type of pea. Hopefully she will become the first victim of this stupid law.

Keyword Spoofing my friend

Ray Taylor

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Dratsab

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#189891 15-Jan-2009 22:32

freitasm: I was once told it's easier to make a law than to change it or revoke it...

Repeal is the word you're looking for here

This process is complicated, but the original enactment process is too.

rossmnz

507 posts

Ultimate Geek

#189962 16-Jan-2009 11:26

To quote Edmund Blackadder: "I havea plan so cunning, you could stick a tail on it and call it a weasel"!

If this law goes through, a random third party (lets say a geekzone.co.nz member) should accuse each and every MP of breaching this law to their ISP. In fact, lets accuse the beehive itself of breaching the law.

By the letter of the law, the ISP will have to act and cut them off!

Geekzone 1-Lawmakers 0

The force is strong with this one!

freitasm

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#189998 16-Jan-2009 13:47

Received this press release just now:

Press statement re implementation of 92a of the Copyright Act
New Zealand Creative Industries welcome changes
16 January 2009
Section 92a brings an opportunity for ISPs and rights holders to work together to address the large-scale online piracy problem that is affecting creative industries in New Zealand and worldwide.

This is an urgent issue and it cannot be solved without help from ISPs.

This is not about ISPs policing the internet, it’s about ISPs responding to a high standard of evidence of infringement and illegal activity on their networks supplied by rights holders. More than anything it is about educating users. ISPs must play a role in this.
It is estimated that 19 out of every 20 music downloads is an illegal download. Between 60 -80 per cent of all internet traffic is peer-to-peer sharing of copyright infringing files. This deprives the songwriters, record artists, actors and all those who work in the creative industries the opportunity for payment for their creativity and effort to produce the songs, movies and software you enjoy.

Section 92a is intended to help address these issues.

The Recording Industry Association of New Zealand (RIANZ), Australasian Performing Rights Association (APRA) and New Zealand Federation Against Copyright Theft (NZFACT) are in discussions with the Telecommunications Carriers’ Forum and ISPs to agree a code of practice for ISPs which helps them and internet users fulfil their obligations under the Copyright Act.

This industry-wide participation is needed in order to secure a level playing field for responsible ISPs. At the same time, the creative industries are changing their business models to meet the challenges and opportunities the internet provides. However there needs to be a fair chance for the creative industries to compete against the ‘free market’ of illegal downloading and file-sharing.

Significantly, all parties agree that there is a need for education of the internet user as to what is legal and what is infringing activity on the internet. Sharing copyright protected music and movies through peer-to-peer applications such as Limewire and BitTorrent is illegal as is downloading copyrighted material from Rapidshare and other online storage sites.

Evidence of those engaged in such activity will be put before the ISP and a graduated response to this illegal activity will start with the issuing of an education letter. Ultimately, if the illegal activity continues despite these warnings, the ISPs will then terminate the user’s internet account.

This graduated response safeguards user privacy as the ISP interacts directly with subscribers without the need to disclose to the rights holders their identities. Importantly, there should be no termination of the accounts of responsible businesses and organisations such as hospitals and schools as they will have responded to the first warning and prevented further infringement taking place.

Research and practice overseas and here at home, indicates that this process will be an effective deterrent and the vast majority of users will stop or prevent illegal filesharing happening over their internet connection after one or two warnings.

Campbell Smith, CEO of RIANZ, says: “We recognise that there is a need to educate users not to infringe or allow their internet connections to be used in this illegal way. A graduated response where users are warned several times will help achieve this but in the end, if they don’t stop the infringements, the sanction of termination of internet account is the likely consequence.”

Anthony Healey, Director of NZ Operations, APRA, says: “To say that creators shouldn’t get paid simply because digital technology makes sharing music (and other creative works) possible is ridiculous. ISPs must act responsibly and accept that there is some cost to the mass of data travelling their lines. Users need to be educated and understand the consequences of their actions.”

Tony Eaton, Executive Director of NZFA©T, says: “Those working in the creative industries need the protection from theft of their work and livelihood that this legislation does afford. In working closely with the internet industries we hope to achieve a reasonable and proportionate response to the problem and thereby save the future of music, movies and other creative industry.”

Notes to the editor:

Graduated response facts
Seven out of ten (72%) UK music consumers would stop illegally downloading if told to do so by their ISP. (Entertainment Media Research, 2008)

Seven out of ten (74%) French consumers agree internet account disconnection is a better approach than fines and criminal sanctions. (IPSOS, France, May 2008)

Eight out of ten (82%) American teenagers familiar with the law think sanctions for illegal downloading are appropriate; 57 per cent of those unfamiliar with the law agree. (KRC US, January 2008)

90 per cent of consumers would stop illegally file-sharing after two warnings from their ISP. (IPSOS, France, May 2008)

70% of New Zealand respondents aged 15 - 30 to would stop downloading movies from file-sharing programs or other illegal online sources if their internet connection could be suspended or terminated by their Internet Service Provider. (NZFACT, 2008)

Effect of piracy in UK and NZ facts
Estimates on the economic and employment damage caused by piracy vary. In the UK, Jupiter Research valued the loss at £180 million in 2008, with a cumulative loss to the industry of £1.1 billion by 2012 if nothing is done to address the problem. (IFPI 2009 Digital Music Report)

Internet piracy via P2P file-sharing networks is a significant concern and accounts for the majority of New Zealand movie industry losses – an estimated NZ$33.1 million in lost consumer spending in 2005. (NZFACT)

“Independent estimates suggest up to 80 per cent of internet traffic is generated by P2P file distribution, the vast bulk of which is unauthorised use of copyrighted music and movies.” (IFPI Digital Music Report 2008)

mushion22

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#190004 16-Jan-2009 14:22

This graduated response safeguards user privacy as the ISP interacts directly with subscribers without the need to disclose to the rights holders their identities. Importantly, there should be no termination of the accounts of responsible businesses and organisations such as hospitals and schools as they will have responded to the first warning and prevented further infringement taking place.

So this implies that if those organisations haven't done enough to totally limit all possible scenarios where they may be accused of infringement then they should be held liable, even if the loss of their connectivity would be devastating to their ability to function?

Could I please be supplied with details of the software/hardware that is able to do that, and can you install them within the budget constraints of an organisation such as a school or hospital please?

Also, take a look at this research on the methods used to issue infringement notices (they find that it is possible to frame people, and that the methods used are often inconclusive): http://dmca.cs.washington.edu/

Anthony Healey, Director of NZ Operations, APRA, says: “To say that creators shouldn’t get paid simply because digital technology makes sharing music (and other creative works) possible is ridiculous. ISPs must act responsibly and accept that there is some cost to the mass of data travelling their lines. Users need to be educated and understand the consequences of their actions.”

Who is saying they shouldn't get paid? I dont see any argument based on people deserving free content.

Significantly, all parties agree that there is a need for education of the internet user as to what is legal and what is infringing activity on the internet. Sharing copyright protected music and movies through peer-to-peer applications such as Limewire and BitTorrent is illegal as is downloading copyrighted material from Rapidshare and other online storage sites.

So EDUCATE, and use normal legal methods to punish rather than lobbying technologically-inept politicians to make legislation that is against the principles of fair justice at the cost of the ISPs.

I am all for reduction in copyright infringement, I believe in the artists etc being given their fair dues for their creativity, but I am against ludicrous legislation that solely protects an outdated business model at the expense of ISPs, users and the integrity of the law.

The legislation needs to be changed in two ways:
1) Remove the onus of a decision to disconnect from the ISP. Reserve this decision for the justice system. Simply make sure ISPs are keeping track of which user belongs to which IP address at which time. This information should be accesible to the courts without too much restriction (perhaps a special copyright court).
2) Specify standards for evidence to ensure that those are accused have in fact infringed copyright beyond any reasonable doubt (see the dmca research paper above to see some example of where reasonable doubt is present). It should not be upon those who have been accused to produce evidence that they have not, especially given most of them would not have the knowledge or resources to do so.

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