Why the Government should ignore the People

The infamous “Section 92A” that so riled people up, was this (in full):

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.

This is entirely reasonable.  All it says is that there has to be a policy – it says nothing about the policy other than it must be ‘reasonably implemented’ (where the court gets to decide what is “reasonable”), and that there has to be some way to get to termination of an account in repeat infringement cases.

Despite what huge numbers of people claimed: there is no “guilt on accusation” here and there is no “3 strikes” here. However, through the bad reporting that is unfortunately common now, that’s what people believed, and they made a huge fuss about it, and the Government cravenly caved in to pressure from “the People” and have come up with a new version.  I can’t post the full text of the new version here, because it’s 18 sections long.

With S92A, it was up to the ISPs (or “IPAP”s) to decide what a suitable policy was.  Given that writing policy is hard work, it’s likely that there would end up being a fairly boilerplate policy adopted by most ISPs, but there was no requirement for a central policy.  A “reasonable” policy could be that (a) the rights holder must have proved in court or through the Tribunal that an infringement took place, and (b) the termination would be for no more than one day per infringement (recall that file sharing may involve hundreds of infringements in a single case).  Probably the major ISPs would have had something closer to what’s now law, with a system of warnings and notices and probation periods, but it would be up to the ISP and if the consumers cared, then they could chose based on this policy.  Certainly the policy could “reasonably” have required more than 3 infringements.

Importantly, if the policy needed adjustment (perhaps to limit the number of infringement notices from a single rights holder to counter blanket accusations), that would be something that the ISP could decide to do and implement at any time.  What we have now instead is a policy that’s enshrined in law, so the Government needs to pass an amendment to change anything (and given the ruckus each time this is touched, that seems unlikely).

The irony here is that if “the People” had just (a) read the original version, and (b) shut up about it, or if the Government had ignored the People, we would have had a much simpler and more flexible law that most people would probably have been happier with.  (There are other changes in the Amendment, like the definition of an ISP/IPAP, that are genuinely superior – I’m referring only to the infringement policy).

Instead, we now do have a “3 strikes” law (but it’s not “guilt on accusation”).  However, if you actually bother to take the time to read it, it’s really not that bad (unless you’re guilty of illegal file-sharing, of course.  In that case you need to (a) campaign for copyright reform if you honestly believe that it should be legal, and (b) stop breaking the law).  I much prefer the old version where the policy wasn’t in law, but since “the People” more-or-less killed that possibility, this is probably as good as we’ll get.  Note how many hoops have to be jumped through in order to get a 6-month account suspension – it’s really not going to be that common.

(Note, too, that there’s nothing preventing you from opening an account with another provider (assuming they’ll have you, and probably they won’t care).  This is unlike (e.g.) driving-related cases where you are forbidden to drive at all for a period of time.  Imagine if someone convicted of a DUI wasn’t allowed to drive that vehicle for 6 months, but could drive anything else!).

I can see two potential problems with the Amendment, both unfortunately reasonably likely.

  1. Because this is an election year and because people don’t understand what they are riled up about, the Amendment gets overturned (or amended again) in a year or so – we need some stability here, even if the law isn’t perfect.  Perhaps then the people that work on this stuff could start figuring out the copyright issue in more totality and leave file-sharing alone.  (i.e. how long should copyright last? should computer code be copyrightable? should we get rid of copyright altogether?)
  2. The courts get convinced that penalties should be foolishly high (there are plenty of US cases that could be used as examples here).  For example, if the work is a song, and there is evidence that 1,000 people gained access to that song through the infringer, then the absolute maximum penalty should be $2390 ($2.39 to buy the song from iTunes x1000).  In nearly all cases it should be considerably less, because (a) not all of the 1,000 people would have purchased the song (so the damages do not apply), (b) the cost of the song is often much less, and (c) the sharing may have increased sales in some cases (evidence of this should be provided).  It would be much better if the law restricted the fine to something that reflected damages (i.e. no punitive fines).  I’m hopeful that this won’t happen – if you look at judgements in New Zealand most often the punishment is far less than what “reasonable people” could consider merited – so if anything we may get the opposite effect, where the fines are extremely minimal.

(I do absolutely agree that passing the Amendment under an urgency created to deal with the earthquake is extremely inappropriate.  My guess is that there was room to put it in, so they wanted it out of the way (particularly as far before the election as possible).  More care should be taken by the Government about what gets dealt with under urgency – this is hardly the first inappropriate example).

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