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?

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).

An actual problem with the Copyright (Infringing File Sharing) Amendment Bill

The most glaringly wrong part of the Amendment is this:

122PB Application of section 122C to cellular mobile networks

(1) An IPAP need not comply with either of the obligations in section 122C(1) in respect of the services it provides by way of a cellular mobile network.

(2) Subsection (1) is repealed with the close of 31 July 2013 (but see subsection (3)(c)).

(3) The Governor-General may, by Order in Council made on the recommendation of the Minister, do all or any of the following:

(a) repeal this section:

(b) repeal subsection (2):

(c) amend subsection (2) by replacing the date specified in that subsection with any other date, whether that date is earlier or later than the one it replaces:

(d) revoke or amend any Order in Council made under this section (the principal order), but only if the repeal, amendment, or revocation effected by the principal order has not taken effect.

(4) The powers in subsection (3) may be exercised more than once.

This makes absolutely no sense.  A rights violation doesn’t change based on the medium used – why should it matter if the Internet access is via cellular data, microwave, satellite, fiber, copper DSL, or copper dial-up?  Even the authors of the Amendment clearly know that it makes no sense, which is why there’s the built-in expiry and ability to remove it at essentially any earlier time (or, crazily, extend it).

Unless the point is to encourage everyone to illegally file-share over cellular data?  Given that the prices are higher, I’m sure the providers would be happy with that…

Guilt if not denied, not guilt on accusation

Once again, many New Zealanders are saying incredibly incorrect things about copyright law – most of them because they are parroting other people in a twisted Chinese whispers style of journalism.  People are calling the latest changes “guilt on accusation”.  All you have to do is actually read the amendment (which is not something that many do) and you can tell that is not the case.

The relevant part of the amendment is this:

122MA Infringement notice as evidence of copyright infringement

(1) In proceedings before the Tribunal, an infringement notice is conclusive evidence of the following:

(a) that each incidence of file sharing identified in the notice constituted an infringement of the right owner’s copyright in the work identified:

(b) that the information recorded in the infringement notice is correct:

(c) that the infringement notice was issued in accordance with this Act.

(2) An account holder may submit evidence, or give reasons, that show that any 1 or more of the presumptions in subsection (1) do not apply with respect to any particular infringement identified in an infringement notice.

(3) If an account holder submits evidence or gives reasons as referred to in subsection (2), the rights owner must satisfy the Tribunal that the particular presumption or presumptions are correct.

What this says is that if you are accused and you do not deny the accusation then the tribunal does not need to consider additional evidence – they can get on with the rest of their work.  As soon as you say “no, this wasn’t a rights violation”, or “there’s a mistake here”, or “this notice wasn’t in the right form”, the burden is explicitly on the rights holder to prove guilt.  In case this is “TL;DR”, it’s the final words: “the rights owner must satisfy the Tribunal that the particular presumption or presumptions are correct.

This is doesn’t mean you are guilty until proven innocent – this means that if you can’t be bothered denying the accusation, then the Tribunal doesn’t have to waste a lot of time looking at evidence.  If you’re innocent, all you need to do is point that out, and you are presumed to be correct until proven otherwise.

S92A, and other thoughts on the revised Copyright Act

There is quite a furore (e.g. #blackout) at the moment about the eminent arrival of the updated Copyright Act in NZ, pretty much all surrounding section 92A.  92A doesn’t appear in the official online copies (either HTML or PDF) – I don’t know if that is because it only takes effect from the end of the month, or because someone left it out.  The Amendment does have the wording:

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.

The outcry among the public is basically saying that this amounts to “guilt on accusation” – i.e. someone accuses you of copyright violations, and you lose your Internet access.  That isn’t what it says, however:

• Termination needs “appropriate circumstances”.  I can’t see how any right-thinking court would think that “proof of guilt” would be an inappropriate circumstance.  I don’t see how “found guilty by a recognised court of law” would be an inappropriate circumstance, either.
• Nowhere does it say that termination of a user that is accused of infringement is required.  It’s quite explicit in that actual infringement is required.  I fail to see where this section removes the requirement for proof.
• Termination needs repeat infringement.  You could define repeat infringement as downloading two songs at once, but I believe the more commonly accepted definition (what a court would hopefully require) would be that infringement is done more than one occasion (ideally with some sort of notice or warning after the first infringement).
• I’ve seen it said that ISPs will use draconian policies out of fear of legal action.  However, the Act specifically exempts any such action:

Merely because A uses the Internet services of the Internet service provider in infringing the copyright, the Internet service provider, without more,—

“(a) does not infringe the copyright in the work:

“(b) must not be taken to have authorised A’s infringement of copyright in the work:

“(c) subject to subsection (3), must not be subject to any civil remedy or criminal sanction.

An ISP could adopt a policy that does provide for immediate termination on accusation, of course.  But they can adopt any policy they like (that doesn’t itself break the law) – that’s how the free market works.  Nothing there has changed.  An ISP could also chose to implement a policy that puts a reasonable burden of proof on the person/organisation making the accusation – considering that many of the major ISPs in NZ have spoken out against the section, it doesn’t seem unlikely that they would do so.

New Zealand is pretty soft on crime (although hopefully that will change with the recent change in government).  If someone (provably) violates the law, and does so knowingly (i.e. I would personally include in a policy a requirement for a first warning, before it gets to “repeat”), then they should be punished.  The question is then whether their Internet access should be removed, or whether punishment should be left for the regular court process.  This is where I have a problem with S92A.

• Although making it harder for a criminal to repeat offend is a good idea in general, it’s not common.  This is done in traffic offences – if you repeatedly offend, then you lose your license, or might even have your vehicle removed for a period of time.  Many crimes, of course, use only commonly found equipment (or none at all) – so this doesn’t apply to theft, assault, and other crimes like that.  I can’t easily think of a crime that requires specialised equipment – but there probably are some, and removal of a set of tools is probably not done in that case.
• The section is vague, and the Act’s definition of “Internet Service Provider” is far too vague.  It would be better if it made clear that proof of guilt (e.g. a conviction by a recognised court) was required.

There are many more problems with the revised version of the Act (although it is arguably better than the version it replaces).  For example:

• The definition of cache is wrong: it must be “for the sole purpose of enabling the Internet service provider to transmit the material more efficiently to other users of the service on their request”.  A cache may be legitimately used to transmit the material a second (or further) time to the same user.

Another example:

An educational establishment does not infringe copyright in a work that is made available on a website or other electronic retrieval system by storing a copy of the page or pages in which the work appears if—

(a) the material is stored for an educational purpose; and

(b) the material—

(i) is displayed under a separate frame or identifier; and

(ii) identifies the author (if known) and source of the work; and

(iii) states the name of the educational establishment and the date on which the work was stored; and

(c) the material is restricted to use by authenticated users.

As far as I can tell, this lets an educational establishment provide unrestricted copies of software to authenticated users, as long as the software is related to the course.  I doubt that’s what’s meant, but that’s how it reads to me.

Then there’s the section that’s meant to be one of the big improvements, stopping everyone that rips CD music (to put on a portable music player) from breaking the law:

Copying sound recording for personal use

(1) Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:

(a) the sound recording is not a communication work or part of a communication work; and

(b) the copy is made from a sound recording that is not an infringing copy; and

(c) the sound recording is not borrowed or hired; and

(d) the copy is made by the owner of the sound recording; and

(e) that owner acquired the sound recording legitimately; and

(f) the copy is used only for that owner’s personal use or the personal use of a member of the household in which the owner lives or both; and

(g) no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and

(h) the owner of the sound recording retains the ownership of both the sound recording and of any copy that is made under this section.

This is great, but this specifically excludes video.  So although you can copy a legally purchased CD to a hard drive, then to an iPod, I am restricted from copying a legally purchased DVD to a hard drive, then to an AppleTV.  Where is the logic in that?

Time-shifting is also now permitted:

Recording for purposes of time shifting

(1) A person (A) does not infringe copyright in a programme included in a communication work, or in any work included in it, by recording it, if—

(a) A makes the recording solely for A’s personal use or the personal use of a member of the household in which A lives or both; and

(b) A makes the recording solely for the purpose of viewing or listening to the recording at a more convenient time; and

(c) the recording is not made from an on-demand service; and

(d) A has lawful access to the communication work at the time of making the recording.

(2) However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the communication work, if—

(a) A retains the recording for any longer than is reasonably necessary for viewing or listening to the recording at a more convenient time; or

(b) in the event that the person who views or listens to the recording wishes to make a complaint to a complaint authority, A retains the recording for any longer than is reasonably necessary to prepare and despatch the complaint.

So I can record Lost to watch it later, but I can’t keep it longer than “reasonably necessary”.  “Reasonably necessary” is far too vague.  I’ve kept programs on MySky for close to a year before getting around to watching them.  Is that “reasonable”?  Would copyright holders really care if recordings for personal use had no time limit?

My biggest concern is that this Act (and presumably many others) was developed/debated by people who have no idea what they are talking about (just read the debate transcripts, and it’s obvious).  Surely someone could be found to inform the politicians, so that they have some clue about the decisions they are making?

Disclaimer time: Note that I am not a lawyer, nor do I follow this extremely closely.  I may be wrong in places.  However, I have read the Acts (original, revised, and amendment), and also the transcripts of the various debates/readings that were held.  I’m not convinced that many of the other people writing/speaking about this have done so.  I also strongly believe that people should be entitled to certain rights (such as those that the Copyright Act provides) over works that they developed (i.e. I’m not anti-copyright), although there should be sensible exclusions.  I believe that many of the changes are positive, and that many of the rights are fair.  As those that know me know, if there is a reasonably convenient, reasonably priced method of legally acquiring content, then I will always use that (even though I have sufficient knowledge to easily obtain illegal copies).