S92a - in plain English?

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buzzy

217 posts

Master Geek

#30714 18-Feb-2009 17:21

Hi all,
I've read S92a of the copyright act (quoted below; it's remarkably short). Can anyone explain how we've reached the conclusion that this equates to guilt-upon-accusation? Yes, ISPs have to have policies to handle "repeat infringers" - but then most ISPs already have policies that rule out illegal use, and provide for termination in that event.
Section 92 doesn't specifically define infringement, although it is defined elsewhere in the Act. Surely in order to be considered an "infringer" something would have to be proven against you; in which case S92a is no worse than any other section of the Act. Maybe I'm missing something - comments?

Here's Section 92a in all its glory:

92A Internet service provider must have policy for terminating accounts of repeat infringers(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
[edited to correct formatting]

jpfree

45 posts

Geek

#196800 19-Feb-2009 21:58

The issue is mainly around the poor wording of the law - it provides no guidance as to how an ISP should decide if a user is deemed to have infringed another's copyright.

If you think about reality, how will an ISP's policy determine whether someone has infringed? Realistically, they will not spend a vast amount of time investigating the validity of the complaint. Additionally, they would be unlikely to wait until an infringement was proven because they do not want it to be found that their policy was not "reasonably implemented". I guess a provider could adopt this stance but because of the ambiguity and cost it is not likely.

The most likely, and cheapest, scenario for an ISP is to simply assume that every complaint is valid and represents a true infringement. The next step is to decide how many infringements constitute "repeat" infringements, something which is also not spelled out in the law.

Personally my trouble with the law is the extremely poor codification of what should be done, and therefore the issue that innocent internet users could be affected because the law is not explicit enough about who should be cut off.

buzzy

217 posts

Master Geek

#196866 20-Feb-2009 10:22

jpfree: how will an ISP's policy determine whether someone has infringed? Realistically, they will not spend a vast amount of time investigating the validity of the complaint. Additionally, they would be unlikely to wait until an infringement was proven because they do not want it to be found that their policy was not "reasonably implemented". I guess a provider could adopt this stance but because of the ambiguity and cost it is not likely.

The most likely, and cheapest, scenario for an ISP is to simply assume that every complaint is valid and represents a true infringement. The next step is to decide how many infringements constitute "repeat" infringements, something which is also not spelled out in the law.

Personally my trouble with the law is the extremely poor codification of what should be done, and therefore the issue that innocent internet users could be affected because the law is not explicit enough about who should be cut off.

Good argument.
If we separate out the definition and implementation of the policy, I could see an ISP creating a policy that [i]defines[/i] an infringer as someone found guilty of copyright infringement by a court. [i]Implementation[/i] of that policy would be reasonable after the court found someone guilty.
I agree with your last point - the law is poorly worded and will ultimately leave much of the interpretation to the courts. Regrettably, this isn't the only recent law to suffer from that charge.

richms

28173 posts

Uber Geek

Trusted

Lifetime subscriber

#197328 22-Feb-2009 18:05

My take on it which I will use if I get disconnected is that a repeated violation of a work has to be the same work, since if its a different work thats violated then its not a repeat violation.

Its one of the worst laws to come out of anywhere.

Richard rich.ms

old3eyes

9119 posts

Uber Geek

Subscriber

#197333 22-Feb-2009 18:46

I bet there are a heap of RIANZ lawyers with pens poised waiting for tomorrow to come..

Regards,

Old3eyes

naram

1 post

Wannabe Geek

#197394 23-Feb-2009 02:34

The fact is people are overeating 80% of people are pirating to varying levels. 92a is a clone bill that they passed in the uk and it bombed like the war in iraq like it will here (The UK government has dropped plans to implement a "three strikes and you're out" approach for ISPs, acknowledging that the proposal raised very complex legal issues to enforce disconnecting Internet users.) Example if you are a business that has your net cut off that you rely on for some or all of your income and you can prove that it was not dircectly your falt for the infingement you would have a case to sue your isp for breach of contract slander and loss of earnings. The isp's are not going to inforce 92a they are going say we are not the internet police and it's not a police matter either.
Copyright infringement is a civil tort, not a criminal one. Nothing is going to happen, carry on the way you always have, it's just scare tactits at best. I find it hard to believe that politicians get paid to write up this rubbish, clearly they do not know how to use google or they would know that the same policy was impossible to work in the eu and uk. We are going to end up just like the bomb site that is the american political system where lobbyist and big dollar internationl corporations can influence local government to put an offiical stain on paper just to increase their already inflated bottom line.