Hard News: The Public Bad
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Graeme
I agree with Rick that this must be the practical consequence of the section.
Copyright claims are complex to resolve. Therefore any dispute process will be cheap but unfair, or expensive and fair. The rights holders want a cheap resolution process, so it automatically follows it will have a real potential for unfairness.
The government clearly didn't want to advertise the unfairness of the section - so they dumped the responsibility for determining how to resolve disputes on ISPs. That way, ISPs have the opportunity to spend a lot of money resolving the disputes (yeah right) or being unfair. The TCF resolves any claim disputed by a user in the user's favour. Sometimes that will be unfair.
So the Rights holders want to have the opportunity to resolve their own disputes - or in other words the Fox wants to guard the Hen-house. Hence guilt upon accusation = unfair.
It all comes down to the government wanting to help rights holders,and then side-stepping the complexity by dumping it all on ISPs who are the real big losers in this. They face liability from both rights holders and users.
Scary when you think about the definition of an ISP.
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Copyright claims are complex to resolve. Therefore any dispute process will be cheap but unfair, or expensive and fair. The rights holders want a cheap resolution process, so it automatically follows it will have a real potential for unfairness.
That is such a marvellous summary. My hat is off to you.
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Rochelle, and Rick. Just the people I wanted to hear from. Thank you.
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Who is Parliament's ISP? Heaps of copyright violations on that den of piracy...
(I'm serious. Pass a bad law, get hoist by it. And then they'd call it contempt...)
TelstraClear I think... I heard via a mate that they were joking that they'd cut off the internet for Parliamentary Services if someone were to accuse them of copyright infringement... that would be hilarious.
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they were joking that they'd cut off the internet for Parliamentary Services if someone were to accuse them of copyright infringement... that would be hilarious.
I imagine the person who did that would be sued into bankruptcy if they were not actually the copyright holder, or perhaps prosecuted. In fact I believe part of the advice given to the minister is that the remedy for anyone wrongly accused was to use the fraud provisions in the Crimes Act.
Part of the problem is that most of us don't have the deep resources that the Crown or a telco could bring to bear in such a case.
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There's an explicit exception for caching.
For ISPs, not for individual users or (possibly) corporations.This section says otherwise. Any user cannot be sued for infringement if the copying occurs as a transitory part of accessing that content through a computer network. Which is precisely what caching is. If you have a flat and run a caching server, you're no more infringing than an ISP that caches for all their users. Caching is caching, doesn't matter who's doing it. The step after that is downloading, and that's infringing (or not) regardless of who's doing it.
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We're on WikiPedia now... edit away!
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when I get kicked off teh internetz, do I still have to pay my ISP for it? if I'm locked into a contract?
so the ISP is now, for free, providing a service to "copyright holders" to disconnect their own customers which will result in a loss of revenue to them?
and they can then simply sign up to a new ISP?
"simple" solution, an ISP simply begins repackaging their services under a few different shell companies, instead of disconnecting their customers they offer to transfer them to another ISP on the same terms, and back and forth and so on...
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I imagine the person who did that would be sued into bankruptcy if they were not actually the copyright holder, or perhaps prosecuted. In fact I believe part of the advice given to the minister is that the remedy for anyone wrongly accused was to use the fraud provisions in the Crimes Act.
Which the police will ignore. So, one law for the rich, then.
As for Parliament, you may have noticed that submissions to select committees appear there now. Submitters automatically hold copyright in those works, and unless you specifically granted them permission, their subsequent reproductionand distribution is unlicensed and violates your copyright. The online submission form may include such a licence (or an implied one); but they scan hardcopies as well. So parliament is breaching the copyright of myself and hundreds of other New Zealanders. If the law goes into effect, the first thing we should do is lodge a complaint with their ISP, and hoist them with the consequences of their own actions.
(For maximum irony, complaints should be about submissions on the actual bill...)
Parliament would probably call this a breach of privilege, citing the BORA 1689. But the law cares as little for that as it does for whether an accusation is actually true. The negative PR of Parliament persecuting someone for inflicting its own laws on it should dissuade any action for breach of privilege.
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He believes this law is a breach of section 25 of the Bill of Rights act - you are innocent until proven guilty. He recommends that if you are writing to your local MP. ask them if they think the law breaches the Bill of Rights act and if not, why?
Oddly, I can't find the report of the Attorney General on the original Bills BORA compatability - i though there had to be one, or does he just not report if he believes there's no problem?
Anyways:
- requiring ISPs to cut people off is not a criminal sentence, so due process doesn't apply. Analogously, a bartender is required by liquor laws to stop serving anyone they believe to be drunk. There isn't any requirement for proof there, either.- the BORA is an empty cipher anyway as far as primary legislation is concerned.
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Actually, I/S, I believe that when you submit stuff to the Crown it a) becomes official information and subject to the OIA, unless confidentiality is warranted under the Privacy Act or relevant sections of the OIA, or other legislation (such as tax or health) and b) becomes subject to Crown Copyright. I may be wrong on this and will bow to informed opinion.
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"Analogously, a bartender is required by liquor laws to stop serving anyone they believe to be drunk."
but can't do anything about them walking into another bar...
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This section says otherwise
This section applies where, under an assignment or a licence, a person is authorised to communicate the following works to the public
Someone running a cache hasn't got an assignment or license to communicate anything to the public. Once could, I suppose argue that if content is placed on a public website without a statement to the contrary, then there is an implicit license - but what if the site has T&Cs attached that contradict this.
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Looks like Russell has nailed the colours to the mast(head)...
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Mark: Nope. At least not according to sections 26 and 27 of the Copyright Act. As submitters, we're not employees of the crown or engaged by it, and our submissions are not covered by the Parliamentary exclusion in s27(1) (which is pretty specific in enumerating Parliamentary work product).
There is an exemption in section 62 for material communicated to the Crown - but the Crown isn't Parliament (check the definitions in the interpretation section). And while section 59 says that copyright is not infringed by Parliamentary proceedings or the reporting of same, I'm not sure that that applies in this case. To the internal copying and distribution, sure, and to anything an MP actually says (sorry, but if an MP reads your book into the record, or sings your song, tough luck) - but to wholesale public distribution over the web?
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I see your point, esp. in s62 although I think it could be argued that Select Committee submissions are part of Parliamentary proceedings.
I wonder if there's any case law on this. Rick, you still around?
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These black gravatars make my brain think everyone is the same person.
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Looks like Russell has nailed the colours to the mast(head)...
Not just us. Kiwiblog, Scoop, Throng, Geekzone and many others are running those banners.
Of course, seeing them all the time kinda says "this site isn't selling any advertising this month" ...
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Some of us don't sell advertising at all.
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These black gravatars make my brain think everyone is the same person.
I know what you mean, Russell.
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Some of us don't sell advertising at all.
Heh.
Good post, BTW. You have provided leadership on due process, and that was in my mind in writing the above.
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LOL
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There is an exemption in section 62 for material communicated to the Crown - but the Crown isn't Parliament (check the definitions in the interpretation section).
My Copyright Act 1994 s2 says that Crown...Includes a Minister of the Crown, a government department, and an Office of Parliament . It doesn't specifically say that it doesn't include Parliament, and because the word is "includes" it's likely to be interpreted as indicative, not absolute. I wouldn't want to be arguing in a court that select committees aren't part of the Crown, especially when "a Minister of the Crown" is included in that section.
The reality is that there would be urgent legislation tabled to explicitly include select committees in that definition, and suddenly it would all be legal again. That's if a ruling was made that publishing submissions is indeed a breach of copyright, and I wouldn't put money on any court saying any such thing.
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I spoke to a good friend who works for [insert name of large NZ Telco here] about all this, and he said that it's mainly aimed at people who upload music videos and the likes to YouToob, so as to gain some legal footing/footprint in case of needing to pass the legal buck.
Music videos are advertising; their proper name is 'promos.' Most music corporations have no problem with their promos being available on YouTube. Companies like Rough Trade have YouTube accounts. It is only the likes of Warner Brothers who get weird about their advertisments being broadcast.
I don't see why we should pander to their weirdness. Corporations want to advertise their products everywhere, so that our lives are dominated by them. They put the stuff out to sell it; they have no right to complain when others use it.
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I think it could be argued that Select Committee submissions are part of Parliamentary proceedings.
It's very clear.
Evidence - including written evidence - accepted by a select committee is protected by Parliamentary privilege.
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