Disconnected
The government is having another crack at amending the copyright act and the infamous section 92a in particular. The gist of the revamp is here. David Farrar over at Kiwiblog thinks the changes are “not bad”. I beg to differ. While the changes are certainly better than the original section 92a where people could have their internet connection disconnected via innuendo and supposition, the new section 92a leaves much to be desired:
“The main points of the proposal are:
- Right holders will be able to request that internet service providers (ISPs) give alleged infringers notice to stop infringing activity.
- The first notice will inform the account holder that infringing has occurred and is illegal. Two further notices may be sent.
- If infringing continues after three notices, the right holder may seek a penalty of up to $15,000 at the Copyright Tribunal. The amount will be based on the damage to the copyright owner.
- Where serious and continued breaches occur, right holders will be able to go to court to seek a range of remedies, including the suspension of accounts for up to six months.
- Account holders will be able to issue counter notices, and can request a hearing if they feel they should not be penalised.
ISPs are still the policemen in this equation, being forced into the absurd position of suing their own customers. While the insane record companies like to do this, I am certain that the ISPs are less than impressed. At least in this version the ISPs just have to give the notifications, rather than go to court. Notice that the Copyright holder does not have to prove or provide evidence when issuing an infringement notice. Because there is only a minimum of 10 days between each notice and a notice must be sent within 20 days of an event, a copyright holder could send three notices in succession based on events merely days apart. Theoretically, you could be on your third “strike” before you actually receive the first notice.
I have big problems with determining a penalty according to “damage to the copyright owner”. Who determines this damage? Can a 20-year-0ld university student living at home or a 25-year-old solo mum on the DPB really be said to have damaged the holder at all, if they have downloaded music for their personal use? Given that the vast majority of pirating on p2p networks is between people who either would not have bought the music/video anyway or people who will eventually buy it regardless, does p2p downloading actually make any difference at all to rights holders profits? I am always hearing how these multibillion dollar companies are losing profits to downloaders. It seems far more likely to me that they are losing money because no-one wants to pay good money for utter crap.
Once again the rights holders are going after P2P downloaders when their real problem is the counterfeiters in Asia. When people pay money for the supposed genuine article only to buy a counterfeit, then the rights holders are losing money. Going after solo moms and 12-year-olds just makes them look like venal scum and achieves nothing.
Finally, I note that section 92a still allows for termination of internet connection, albeit only through the courts. In a day and age where we get protests about harsh treatment of prisoners because we want to use a converted shipping container to house then or we want to double bunk them, the removal of internet connections for 6 months is a thoroughly draconian and over-the-top punishment for a trivial misdemeanor. For most people likely to be guilty of P2P downloading, this is the equivalent of 6 months in solitary confinement.
My advice for Mr. Power would be that he scrap Section 92a altogether and tell the rights holders to use the court system as before. I see no reason to have a separate little system on the side so that they can harass the vulnerable without the glare of the legal spotlight on their machinations. Perhaps then they will put more effort into going after the real pirates and leave the students and solo moms alone.
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Dec 17 09 3:01 pm
“ISPs are still the policemen in this equation, being forced into the absurd position of suing their own customers.”
How do you figure that?
Will you be contributing to the Select Committee process?
Matthew Holloway´s last blog ..CFF Welcome Copyright Proposal Document (Section 92A)
Dec 17 09 4:14 pm
”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.”
I find that quite amusing actually, because it implies that having to undergo a trial by experts in the first place is inherently fair.
What safeguards are in place in this new law to prevent a father receiving a notice telling him to front at a trial or face disconnection of broadband for his home business, because his son went on a P2P downloading spree without his knowledge the night before?
What safeguards are in place to prevent this father having to travel to the tribunal, take time off work, and maybe even having to pay for legal advice (at least $400 or so) before he even arrives at the tribunal or court?
The fact that this whole process can be initiated by a copyright holder with a print-out of IP addresses of alleged infringers doesn’t concern anyone?
What’s inherently unfair about all this is often the infringer will just cave & plead guilty, or not front at court & bear the penalty so they can just get on with their lives. Always unfair!
Dec 17 09 4:29 pm
“The fact that this whole process can be initiated by a copyright holder with a print-out of IP addresses of alleged infringers doesn’t concern anyone?”
We do need to add punishments for false or malicious accusations (the current court process doesn’t offer enough, you practically need to find someone with a smoking gun). We’ve called for that.
“What safeguards are in place in this new law to prevent a father receiving a notice telling him to front at a trial or face disconnection of broadband for his home business, because his son went on a P2P downloading spree without his knowledge the night before?”
None if you can’t pass the responsibility to the Son in your example. The intent of the law is to have a collective punishment. We’ve spoken out against this too and we’ll be doing our bit.
As far as time off work any court battle or tribunal battle has that.
Cheers,
Dec 17 09 5:16 pm
“None if you can’t pass the responsibility to the Son in your example. The intent of the law is to have a collective punishment”.
The father will always have to pay the penalty if he can’t prove that it was the son who committed the infringement- and how can he do that?
Also, there is no such thing as collective punishment that is made up of a group of individuals who each have to turn up to court or face their own form of civil record or financial penalty. It doesn’t exist. That’s called individual punishment, and to even think that some sort of class-action system should have to be set up to deal with these sorts of issues is plainly reprehensible. The more I think about it, the less I agree that a copyright court or tribunal should be involved at all.
“As far as time off work any court battle or tribunal battle has that”.
In other words, you missed my point- that the fact that the father had to defend himself in court AT ALL is manifestly unfair considering the miniscule damages that would be owed from the father to the copyright holder (and only if proven guilty!). The costs to society outweigh the benefit to the copyright holder, regardless of whether guilt is proven or not in every case.
You don’t understand that this is still guilt upon accusation- just not guilt in the classically legal sense. The alleged infringer must pay a financial penalty and an opportunity cost to defend themselves as a result of having their IP address turn up on a piece of paper, regardless of whether they are guilty of committing an infringement or not.
Dec 17 09 5:31 pm
@Johnnieboy
“Also, there is no such thing as collective punishment that is made up of a group of individuals who each have to turn up to court or face their own form of civil record or financial penalty. It doesn’t exist”
I’m referring to the punishment of a single person for the collective actions of people on the network.
Please note that by explaining my impression of the law I’m not defending currently the approach in the law.
“The alleged infringer must pay a financial penalty and an opportunity cost to defend themselves as a result of having their IP address turn up on a piece of paper, regardless of whether they are guilty of committing an infringement or not.”
Agreed. This is like most court cases though.
Are you saying that crimes or civil actions less than, say, $100 shouldn’t have trials because the cost to society/individuals is too great?
If so that’s a more general issue and I’d love to read a fuller explanation of this idea — perhaps a new blog post?
Matthew Holloway´s last blog ..CFF Welcome Copyright Proposal Document (Section 92A)
Dec 17 09 6:23 pm
“Are you saying that crimes or civil actions less than, say, $100 shouldn’t have trials because the cost to society/individuals is too great?”
No, I’m saying that a crime or civil action to recover damages of less than $15 (ie three notices, each for one video downloaded in breach of copyright, which would get the internet user recorded on a list of copyright infringers on the ISP’s servers) should not warrant prosecution or civil action, due to the need for the accused to incur an opportunity cost of at least $100 (wages, travel, time) for having to take time off work to come to a tribunal hearing (excluding costs of legal advice).
What safeguards are in place to prevent these expenses being borne by your average internet user? If there is some sort of minimum damages threshold, I might be in support of the law. The minimum should be at least $1000 per copyright holder, and the onus should be on the copyright holder to provide evidence of infringement resulting in at least $1000 in damages, not the accused.
Of course when we start talking about minimum thresholds for bringing civil actions, we are probably straying into actions covered by existing law?
“Agreed. This is like most court cases though”
No need to restate the same logical fallacy I rebutted above. The costs to society outweigh the benefits to a minority interest group.
Dec 17 09 6:29 pm
Matthew:
ISPs will be forced into the position of sending the infringement notices, essentially forcing them to participate in the process of suing their own customers.
Are you saying that crimes or civil actions less than, say, $100 shouldn’t have trials because the cost to society/individuals is too great?
Exactly so. There are much better ways of dealing with petty crimes like these than the expensive and cumbersome legal system. Particularly when the monetary value of the infringement is by no means clear.
Dec 17 09 6:44 pm
@Johnnieboy
The Canadian police have formally said that they won’t bother enforcing copyright for small amounts of infringement because they’ve got better things to do (other priorities).
Will you be making a submission to the select committee about this?
“No need to restate the same logical fallacy I rebutted above.”
It’s not a logic fallacy when you generalize the argument to be about any small crime or civil matter as you were did. The Disputes Tribunal and Court process have no such minimum, so what I was asking was whether you would apply this more generally to any small matter and you have written that you would.
@MacDoctor
“forcing them to participate in the process of suing their own customers”
Ah, so you just meant being involved in the process and not that they’re suing their customers. If so then yes, that’s my understanding too. I was confused by the text written that read “ISPs are still the policemen in this equation, being forced into the absurd position of suing their own customers”.
I think I’d probably call ISPs the mailmen, not the policemen.
Dec 17 09 7:55 pm
Matthew: I think I’d probably call ISPs the mailmen, not the policemen.
They are considerably more involved that the mailman. And they still have to send cease and desist letters to their customers.
Captcha: Doggerel Projects
Indeed.
Dec 17 09 8:25 pm
Police recently stated that they exercise discretion to avoid prosecuting for minor smacking offences, while having police guidelines that offer no such discretion at all. Too many people believe the legal myth of police discretion in NZ.
There will at least be test cases in which the authorities will find out the limits of what they can and can’t do by bringing a prosecution- regardless of the moral rightness or wrongness of the prosecution.
Police discretion is a tool that will not necessarily be exercised in favour of the public interest- it can go either way. Often it prioritizes the strong drive police have to solve cases rather than the truth. I speak from personal experience on that one.
The real problem here is that you consider the net inconvenience to regular internet users to be acceptable, even if it exceeds the net gain to copyright holders. Personally I think that this is a position that only a one-sided lobbyist would take. It’s not a position that even a law-abiding internet user would accept once they knew how easy it would be for them make a mistake out of ignorance and to be dragged into court.
“Will you be making a submission to the select committee about this?”
Well I guess its time to shut down the herald. They appear to be making public comment on new laws that are moving through the select committee process again (give me a break). Welcome to the blogosphere!
Dec 17 09 8:27 pm
That’s right MacDoc- the ISPs will be responsible for gathering evidence to support the copyright holder’s case. Not something the mailman would do.
Dec 17 09 11:31 pm
“The real problem here is that you consider the net inconvenience to regular internet users to be acceptable, even if it exceeds the net gain to copyright holders.”
Actually I haven’t articulated anything like that yet.
“Well I guess its time to shut down the herald.”
I asked a simple question and you’ve responded obtusely. If you do choose to respond in the Select Committee process I suggest you be plainly spoken and clearer.
“the ISPs will be responsible for gathering evidence to support the copyright holder’s case.”
They’ll line-up an IP address with an account holder when there’s an accusation, and facilitate the messages to the anonymized account holder. This is why I considered them more akin to a mailman than a policeman. Do you think they’ll other things too?
Dec 18 09 4:39 pm
To me the point is that anyone doing this seriously will just join one of the growing band of encrypted torrent sites.
What’s going to happen then? Are ISPs going to be forced to de-encrypt their customers internet traffic? Who’s going to pay?
In fact who’s going to pay for ISPs to send out enforcement warnings? Tracking all this stuff is going to cost money. Will the copyright holders pay the ISPs? Na didn’t think so.
So how will ISPs recoup the costs? Gee, will we see price rises for customers to pay for this?
I think so. We will end up paying for media corporations to gather revenue. What a surprise.
In the meantime the bad publicity will just send more people down the P2P path, same as DRM did. Fools.