Posts Tagged ‘s92a’

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.