Bad Analogies

NetHui 2011 is currently in progress, so there’s a lot of discussion about Internet usage in New Zealand, and – of course – the controversial amendments to the Copyright Act.  TUANZ‘s Paul Brislen tweeted something I’ve seen and heard (in various forms) a lot recently:

Cf electricity. Won’t cut me off because I look at something I shouldn’t on my PC so why is it ok to cut off my Comms if I do? #nethui

Variations of this substitute other tools for electricity, and the analogy is generally used to say that the amendment (which allows a District Court to order an ISP to suspend the account of a user) goes further than other laws, which don’t take away the tools you used to break the law when you are convicted.  This is true in some cases – if I hit someone with a bat, I get to keep the bat and my right to use it, if I use lockpicks to break into someone’s home, I get to keep the lockpicks and my right to (legally) use them.  However, it’s not always true.  I believe if I use a gun to kill someone, I (permanently?) lose my right to a gun license, and I think that I also lose the gun.  To use an analogy that’s more likely to be something people have experience with, if I break the law while driving a court may temporarily suspend my right to drive, and I may also have my car impounded.  I pointed this flaw out to Paul, who responded:

cars are not a utility. Banning you from all transport is a better analogy for my analogy.

[…] it’s not your acc that’s banned, it’s you. Unenforceable.

This demonstrates my point about analogies being a flawed way to educate people about issues with changes to the law.  I am not a lawyer, but I am fairly certain that Paul is wrong, has been swayed into believing this by the analogy, and is making others believe this by repeating it.  The amendment states (Section 122O (1)):

A District Court may, on application by a copyright owner, make an order requiring an ISP to suspend the account of an account holder for a period of up to 6 months (emphasis mine)

You don’t lose the right to use transport – you lose the right to drive a car.  You can still use a friend’s car (Internet connection), or public transport (public Internet access is available at our wonderful public libraries).  I believe the transport analogy is significantly better than (e.g.) electricity, because of this similarity, and because the punishment must be enacted by a District Court, is limited term, and comes into effect only when the crime is significant enough or repeated enough to be warranted.  However, there are still areas in which it doesn’t work as an analogy – for example, I don’t lose the right to drive if I use my car as a getaway vehicle in a bank heist (although neither do I lose my Internet access if I rob a bank with it).

The problem here is in using analogies at all.  No matter how carefully you select the “lie-to-children“,  the analogy will be an imperfect match and will lead to people forming opinions based on an erroneous understanding of the facts.  The original furor over the S92A amendment was full of these – the amendment had plenty of problems, but most of the uproar was based on misunderstanding and propaganda.

I’m not saying that including the ability for a court to suspend an Internet account is a worthwhile part of the law: as Paul himself said, it’s useless (I’d say weak rather than useless) because it’s so easy to replace the account with another, and I feel it’s too specific (in much the same way as specifying talking on a phone while driving as illegal is too specific) to be enshrined in law, and there’s no evidence that copyright needs to be protected in this way as opposed to other crime (e.g. one does not lose Internet access for viewing child pornography, unless that happens to be a copyright violation).  What I am saying is that I’d like to see some informed debate about these changes to the law.

Paul’s right when he says that the law is complicated and hard for many to understand.  I thoroughly agree with his point that using examples and “what if” scenarios are a good way to help people understand.  However, I think it’s dangerous to let a lie-to-children carry on too far.  Eventually the children need to grow up and learn the truth (as we understand it), and when it comes to making laws, understanding the truth is essential.  You can’t fit an example into a soundbite, but you can give an easy-to-understand example of how suspension will (if this part of the Act is ever ‘turned on’) work in practice.  For example:

John downloads episodes of Outrageous Fortune illegally.  The owner of that content detects this, and informs John’s ISP, who gives John a warning.  John continues to download this material, and after a month the content owner again informs John’s ISP, who again warns John.  John still ignores the warnings, and continues to download the material.  A month later the content owner informs the ISP yet again, who again notifies John.  The content owner then applies to the District Court to have John’s account with his ISP suspended.  John admits to the Court that he is guilty, and the Court considers his specific circumstances and orders his ISP to suspend his account for a three-month period.

This example leaves out a lot of detail (e.g. the official names for each warning, the minimum and maximum periods between each notice, exactly what the court needs to consider, any action taken by the Tribunal, what happens if John denies the allegations, and more), but I don’t believe it contains any errors, and I do believe that it’s simple enough for anyone to understand what would actually happen in practice.  It doesn’t fit in a tweet, and it takes a minute or two more to express than an analogy, but isn’t informed debate about the laws of our country worth the extra time?


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