New S92a proposal

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holloway

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#283455 17-Dec-2009 14:48

I'm very keen to hear what the Creative Freedom Foundation's take on all this is!

Hi folks :)

Continuing with car analogies (a good way to debate any subject no matter how complex!)

"Drivers are responsible for any fines they incur, whether they are driving their own car or someone else’s. If you receive a ticket for a traffic offence someone else committed while using your car, the Council can redirect the ticket to them if you provide - in writing - the name and address of the driver, and the number on the parking ticket."
-- http://www.wellington.govt.nz/services/parking/parkingtickets/parkingtickets.html

They also clarify that they can clamp the car and seize goods under court order, but that in all cases the person who did it is responsible not the owner of the car.

Bronwyn Holloway-Smith of the CFF has commented (in our press release) that, "Earlier this year we came dangerously close to a Guilt Upon Accusation-style law but this new proposal steers well clear of that approach, respecting due process and the principle of being innocent until proven guilty by experts. While there are issues like internet termination and liability for malicious allegations we are optimistic that the government is on the right track to creating a great solution for NZ that supports both public and artistic rights.”

The rest of the press release reads,

The previous law was called “draconian” by Prime Minister John Key before being scrapped in March this year pending a rewrite which has resulted in yesterdays' proposal by Minister Simon Power.

Holloway-Smith further says “the internet is nothing more than the most efficient copying machine the world has ever known, surpassing earlier industrial copying machines which produced wax cylinders, paper piano rolls, vinyl records, and plastic compact discs. Our society has moved forward from regulating an industrial manufacturing process to trying to regulate what people do in the privacy of their own homes on personal computers. The public relations aspect to modern copyright law and maintaining public respect for artistic rights is crucial to encouraging the arts, and this proposal goes a long way toward that.”

“The proposal empowers the Copyright Tribunal to resolve disputes and issue financial penalties, with the harsh punishment of internet termination being reserved for a court process.“

"There are still issues to resolve but we look forward to the Select Committee process."

As you can imagine I agree with Bronwyn. This has reestablished due process and we need to support the necessity for that and get involved in the select committee process to make sure it's not corrupted due to lobbying like last time.

old3eyes

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#283529 17-Dec-2009 20:40

Don't worry. S92 will be gone by lunch time when ACTA arrives. Then watch the fascists march..

Regards,

Old3eyes

rossmnz

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#283532 17-Dec-2009 20:46

Then watch the black avatars emerge!!!!

The force is strong with this one!

SamF

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#283607 18-Dec-2009 01:19

Just sent this to Mr Power:

Mr Power,

Firstly I would like to say that the latest draft of Section 92A of the Copyright Act is vastly improved over previous iterations. However I still have some serious issues with the proposed amendment:

1) Consideration should be made for situations where multiple people are accessing the Internet via the same Internet connection.

It is entirely possible that multiple people will access the Internet via a single connection, in fact, I would say that this is the case for the majority of homes, businesses and other organisations in New Zealand. Who will be held legally responsibility for copyright infringement in such situations? The person who pays the Internet bill? The organisation's directors? The owner of the property? If a single person is to be held legally responsible for the actions of others, is it reasonable to expect this person to be aware of all Internet activity by all parties using the shared connection? I don't believe that this is either fair, or even technologically feasible short of incurring excessive expense, especially for personal Internet connections. In addition, there are a number of situations where unauthorised use of an Internet connection can occur. Should a single person be held legally responsible for copyright infringement in cases where unauthorised usage of their Internet connection has occurred? Again, this is neither fair, nor technologically feasible to monitor or enforce.

Left as it is currently proposed, this amendment would seriously affect the viability of shared Internet connections and potentially expose innocent parties to unjust prosecution due to the actions of others, over which the party has no knowledge or control. In light of this, I think that in situations where multiple parties are accessing the Internet via a single connection, this amendment should either not apply or that other concessions should be provided in order to remove from or dramatically reduce the legal burden on a single, potentially innocent, party.

2) In it's current form the time between infringement notices can be as little as 10 working days. This means that it would be possible to be issued with 3 notices in the period of one month.

An Internet user may have inadvertently infringed copyright by downloading multiple different files and this may result in multiple infringement notices arriving in quick succession. I would like to see a minimum period of 30 days between notices to avoid this potential issue, and also a clause which states that once an infringement notice has been issued, additional notices regarding alleged infringements occurring before the date of said notice are prohibited. This will prevent the accused from being penalised multiple times for downloads completed before any notice has been received (and therefore before they are aware that they have performed any copyright infringement).

For the same reasons, multiple infringement notices from different rights holders should not be served concurrently and no notice should be served within 30 days of another, even if the notice is issued by a different rights holder.

3) Deterrents against false accusations on the part of copyright holders should be added to the amendment.

I believe that as it currently stands, the amendment does not deter excessive issuing of infringement notices or notices which are issued without sufficient evidence of a copyright breach. In order to deter the issuing of notices in this manner, I think some kind of fine or other deterrent needs to be put in place to ensure that copyright holders only issue notices when they are sure that a copyright infringement has taken place. The deterrent must be strong enough to deter even large multinational corporations.

4) Rights holders issuing infringement notices should be required to provide evidence of the alleged infringement if requested by the accused.

It is very difficult for an alleged infringer to determine the merit or accuracy of an alleged infringement, and therefore mount a defence, without first having access to evidence of the alleged infringement. Rights holders should be required to provide such evidence to enable the accused to assess the evidence against them and subsequently decide on the appropriate action. In addition, until such evidence has been received by the alleged infringer, further infringement notices should be prohibited.

5) Should an Internet disconnection be ordered, would this be enforced on a nationwide or a per ISP basis?

As the amendment is currently worded, It is not clear at present whether an Internet disconnection order applies only to the convicted user's current ISP or whether this would be a nationwide ban across all ISPs. If this is to be a nationwide ban, would this affect non-traditional forms of Internet connections such as mobile data connections? I believe that a nationwide ban would be both difficult to enforce and problematic at best.

Thank you,

Sam Fickling
Senior IT Engineer
Auckland

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