I know we all have our views on Copyright Infringement and how the problem is dealt with, well here are my views as to why the newly supposedly improved 3 Strikes Law fails badly.

So lets just start off with a simple question "Isn't the NZ legal system supposed to be where you are presumed innocent until proven guilty beyond reasonable doubt or has that law been changed as well? "

Copyright infringement for many is linked to filesharing often in the form of using bit torrent format and the below will explain how this law fails when it comes to Bittorrent users.

This bill presumes guilty until proven innocent but can not prove beyond reasonable doubt that the person they send the alleged infringement notice to is the person responsible for the alleged infringement.

Simply put argue your case. 

As there is a chance that one day you (the Bittorrent user) may be presented with a legal notice that at said time on said date your ip address was found and believed to be in breach of copyright. 

Here's the simple part for Bit Torrent users anyway.  There is no proof (even with that notice) at all that you personally were responsible for said copyright breach.  All they can actually prove is that a title linked to your internet service is possibly in breach of copyright of their intellectual property. 

Now there 2 easy things you can do at this stage

1 being roll over and say sure your right i did do it and take what they feel is just and then deservedly you accept the judges decision or

2 ask for proof get them to show the end product where is their intellectual property that directly links to what your infringement notice is claiming. 

Lets use a movie Iron Man for example. 

What evidence have they presented to the court??? All they have proven that at blah time on blah date a file from (or is it on) your ip address was being uploaded & had the same name (Iron Man) as one they believe contained their intellectual property (IP).

They will not be able to show that what you were downloading was in fact Iron Man it practically is impossible to prove it.

Say the Iron Man file was 1 gig in size ask for them to produce a Iron Man file of 1 gig that was uploaded solely from your ip address. This is something that they simply will not be able to do. 

If by some tiny chance they can and lets face it ain't going to happen you fall back to the simple "how can you be certain it was me" approach again asking them to prove that at that time of the alleged infringement you were the person who was responsible for the file being uploaded.  You see (recent events really help here) there's the truth that we as internet users are under constant attack from hackers (hmmm Sony anyone) who can use many different techniques to get your pc to do many different things.

What is amazing is that this bill (and others like it) has been pushed on internet users worldwide with very little success by the Entertainment Industry.  This is a industry that is refusing to adapt at a rate of which the public have adapted. 

They want to keep profit margins high (and of course why wouldn't they) so they make up figures about claimed losses based on a inaccurate ratio of 1 person downloaded my IP so thats 1 lost sale.  However not everyone who downloads something for free would have paid for it in the first place. Of course then there's the reverse someone downloads something for free likes what they got and goes out and buys it and or possibly other similar works to show there support of the time and effort put into making the item in question.  Also if your are using that same model of 1 download = 1 lost sale does it not make sense to question the legality behind a rental agency like a video store they purchase an item once giving one royalty to the IP rights holder then go about passing that on to as many people as possible for financial gain, whereas most filesharing is for personal use only not financial gain.    

How can they be claiming to be losing billions of dollars to Copyright Infringement yet for some profits are continuing to rise?  This is even the case when sales themselves our down as the companies have adapted to new ways to make the same product for less.

The law fails as do the rights holders who are failing to adapt.

For each specific industry there are ways that they have used to allow their Intellectual Property to be used for free. I am sure most of us have heard of Shareware or a demo of software or game.  For the music industry it's called the Radio (although radio stations pay for the songs use or your friends recommendations (MP3 Players anyone ever asked hey what are you listening to?) also don't forget that until not that long ago it was illegal to format shift a audio file even if you owned the Tape / CD or other type of audio format (Mp3,Flac) so making a mix tape / cd or putting songs off these onto your MP3 players was illegal.  Last and certainly not least the movie industry does it with Trailers and or copies of their material to the media so they can (hopefully) give it a good review.

As you can see by the examples above the free try before you buy model is how companies often promote their work yet for some reason they can not see that it's not all doom and gloom how they want us to believe. 

The 3 strikes law and it's industry driven origin is something that really needs to be adapted to suit the customers needs not something that strives to take away peoples rights so they can keep profits for private industries at a maximum.

The 3 strikes law is something that can not work to serve as a true deterrent as it is in my opinion fundamentally flawed and even if the amount of copyright infringement does decrease there is not one bit of evidence that can or will show that this will actually lead to protect the rights holder and seeing them compensated accordingly.

Lastly I would like to point out that I believe that Copyright Infringement is most definately a problem worldwide but not one that can be resolved in the way this law treats it by potentially making criminals of literally any person or business that has a internet connection.  It is one that would be better served helping rights holders come up with better ways to adapt their Intellectual Property to the needs and requirements of those that the law in it's current form persecutes.


Forgot to add please feel free to comment or share your opinions especially if I have gotten something wrong or if my post breaches any rules then please accept my apologies.

John