Hard News by Russell Brown


The file-sharing bill

The Copyright (Infringing File Sharing) Amendment Act is an inadequate piece of law -- albeit one markedly better than what it was designed to replace -- passed overnight in vile circumstances.

It's hard to think of a more offensive use of Parliamentary urgency than to exploit the urgency granted for the passage of the Christchurch earthquake bill to suddenly shove through all its remaining stages a bill that hasn't been debated since November 

As David Farrar notes, the government didn't have to do this. Indeed, they appear to have done it just because they could.

The bill retains two key features the of original, and much-reviled, Section 92A, which was held out of the earlier amendment bill after the "blackout" protests in 2008. The first is the provision for termination of an infringer's internet connection; the second is the presumption in favour of the rights holder. Both have been weakened.

The "termination" will be a six-month suspension, which appears to leave the infringer free to go and get another internet connection. The provision for suspensions will be delayed for two years, and even then would need to be enacted by an Order in Council on the part of a Cabinet minister, with the assent of the Governor General. The law itself will be subject to review in two years.

While the original 92A required only three complaints against an individual on the part of a rights holder for termination to be applied -- "guilt upon accusation" -- the complaints must now be considered by a Copyright Tribunal. The tribunal will presume in favour of the complaint, but (thanks to a supplementary order paper produced yesterday) the account holder won't have to prove innocence per se, but can seek to displace the presumption in favour of the rights holder by providing "evidence" or "reasons" it should not apply.

In practical terms, finding oneself in this predicament would require the rights holder caring enough to make a complaint. That's more likely if you're seeding gigabytes of new-release Hollywood movies than if you've just downloaded a few programmes from a less aggressive rights owner such as the BBC.

In case of a complaint, you'd be warned twice, via your ISP, and if you're tagged a third time in three months, you'll need to explain to the tribunal why you should not suffer a penalty, which would be a fine up to $15,000 or, should the provision be enacted, account termination. But termination could only be applied by a court.

Although this remains a less onerous path for the rights holder than taking each case to court in the first place, it's hardly a rubber stamp. I wonder if it's an indication of the near-totemic status of account termination for the copyright lobby that they've persisted in seeking such a remedy.

You may think -- and I would heartily agree with you -- that terminating someone's internet access is an inappropriate measure in an era where, increasingly, to be a citizen is to be connected. I also think it's likely to be ineffective.

It's possible that a large number of complaints/warnings will be made pour encourager les autres -- but rights owners risk both a public backlash, and the practical problem of overloading the tribunal, which is three lawyers working part-time. ISPs will not do any spying on behalf of rights owners, who'll have to pay third parties to gather evidence by observing file-sharing networks. HTTP download services will be difficult or impossible for owners to monitor.

I think Farrar sums things up pretty well:

It would have been nice to get termination removed entirely. But over the last two years we got it changed from ISPs terminating upon accusation, to having a tribunal process. We then get termination removed as a “punishment” for the tribunal and restricted to the courts only. And finally got even that suspended as a punishment, so that it can’t be used unless there is an order-in-council to reactivate it.

Overall I’d say those on the “Internet side” got around 80% of what we wanted, and the rights holders didn’t get anywhere near what they wanted. Their biggest “loss” is the fact they will have to remimburse ISPs for their costs if they want an infringement notice sent to their customers. this will provide a significant economic incentive for rights holders not to file hundreds of thousands of notices.

I'm already losing patience with the likes of the NBR commenter who wrote this:

Why wouldn't it surprise me if the next thing this clown and his ilk propose is the burning of books, identity cards, the enforced resttlement of "undesirables". Oh yeah, and we will have to have The Final Solution to this internet thing. Didn't our forefathers lay down their lives to defeat the Nazis? And yet here they are again, fascism in a smart suit. My great-grandfather would be spinning in his grave at Ypres to know that scum like this have been spawned in NZ and have the gall to pretend to be representing the people.

Get a fucking grip, really. This isn't a great law -- and the circumstances of its passing are odious -- but it's considerably better than it might have been. And frankly, if you want to get really angry and alarmed, you'd be better advised to get that way about the changes to the legal aid system announced yesterday, which will directly affect the right to justice of many thousands of people a year -- especially those on low incomes. The copyright bill is sub-optimal. The legal aid changes are plain dangerous.

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