Legal Beagle by Graeme Edgeler

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Legal Beagle: Asserting ancient rights

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  • Tim McKenzie,

    But it does not require – or even permit – guilt by mere accusation.

    This may be legally true, (and hearing it from two lawyers inclines me to believe that it is legally true), but in practice I don't believe that it was necessarily going to be the case. If, under this law, my ISP had received a letter from RIANZ saying that they'd seen my IP address highly active in transmitting illegal copies of "their" music via BitTorrent, they would have had two choices:
    1) cut me off, risking legal action from me trying to prove that it was unreasonable to cut me off merely on the basis of RIANZ's claims about its logs of activity on certain torrents, or
    2) decline to cut me off, risking legal action from RIANZ trying to prove that it was unreasonable to require a higher standard of evidence.
    The ISP would have known that RIANZ is much more likely to start legal action than I am, so in practice, I suspect that the ISP would have been much more likely to err in favour of RIANZ, if we hadn't made all this fuss, anyway.

    I've read little bits of the TCF draft code, and I've read a little about it, too. It sounds like a "pre-approved copyright holder" can make an accusation by writing a notice claiming they've used an approved detection method to discover copyright infringement. (The details of what constitutes an appropriate detection method are conspicuously absent.) So maybe the accused can have "innocence by denial", but under this system, aren't they still "guilty by accusation" if they fail to respond to infringement notices? There's no requirement that a grand jury has to approve accusations first.

    And of course, there are other issues with the law. For example: why is copyright infringement ever appropriate justification for depriving someone of access to cheap free-expression technologies, depriving them of access to certain free markets, and even depriving them of easy access to the laws that govern them? And why should "ISP"s be required to know who their users are in order to be able to cut them off? Because of the over-broad definition of "Internet service provider" in the law, anyone who lets people in Burma anonymously route internet traffic through their computer is an "ISP", and therefore has to have a policy for cutting off the anonymous Burmese people's ability to speak up against their government, if those people repeatedly infringe New Zealand copyright law.

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • Sacha,

    Tim, in your last sentence surely you mean if those people are repeatedly accused of infringing the law.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Sacha,

    Graeme, I suspect it's nothing more than sloppy language from a political n00b to use the word "suspended".

    Ak • Since May 2008 • 19740 posts Report Reply

  • Graeme Edgeler,

    I suspect it's nothing more than sloppy language from a political n00b to use the word "suspended".

    I considered that, but it seemed unlikely. He knows what repeal means, and knows it's the word to use if that's intended. Or amend, or change.

    Anyway, delay it for a month and then what? What are the Government's plans if rights holders and Internet companies can't reach an agreement?

    Go into urgency and repeal it through 3 readings, or just sit on it, and maybe amend it or repeal it some time in the future, after considering what the best thing to do with copyright law is?

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Don Christie,

    I've noted my concern over the strained interpretation in comments

    Not just us, but RIANZ and APRA who believe it is ridiculous to have to go to court and refuse even to submit evidence of a quality that would stand up in court.

    What this draft gives us is “innocence by denial”

    Er, no. That is a 'strained interpretation'. It allows the accused to challenge the allegation. I struggle to understand why that is a problem.

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Rich of Observationz,

    Parliament, having been advised (as you point out) on the inadvisability of delegating authority to bring a bill in, went ahead and did so for this one. I take that as being a clear decison that it's up to the executive to choose when the bill comes in, whether today, April 28th, or sometime in the year 2525.

    Maybe the MPs considering this bill (Greens of course excepted) didn't know what was going on and were keener to make jokes and waffle about records they had as schoolkids than review the legislation. Still, they are considered grownups and what they decide gets implemented.

    So I don't see that the government is obliged to implement s92c promptly. They could quite reaonably, and complying with their obligation to implement it at some stage, spend some time consulting and then pass a bill amending the section.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • mic weevil,

    "innocence by denial"

    surely innocence by denial can only follow on from guilt by accusation? surely the best standard remains innocent until proven guilty...

    but I agree with the point of Graeme's post. It seems like the Nats have just swept in and started doing whatever the hell they feel like under urgency. hopefully this will backfire on them later in their first term, 'cause it surely pisses a lot of people off...

    auckland • Since Nov 2006 • 52 posts Report Reply

  • Russell Brown,

    Anyway, delay it for a month and then what? What are the Government's plans if rights holders and Internet companies can't reach an agreement?

    Go into urgency and repeal it through 3 readings, or just sit on it, and maybe amend it or repeal it some time in the future, after considering what the best thing to do with copyright law is?

    Chris Finlayson has told people that if a code of conduct can't be agreed, he will write a more detailed and prescriptive law himself.

    This might have the effect of spooking both sides into agreement -- better the devil you know, etc -- but it doesn't really answer your question about the status of the present law.

    Auckland • Since Nov 2006 • 22848 posts Report Reply

  • Graeme Edgeler,

    Chris Finlayson has told people that if a code of conduct can't be agreed, he will write a more detailed and prescriptive law himself.
    ...
    but it doesn't really answer your question about the status of the present law.

    It kinda does.

    I'd certainly assume that this means they'd just never implement s 92A, and then in the middle of the year Chris Finlayson would have drafted an amendment and they'd amend the Copyright Act. I doubt they'd repeal it in the interim (given it hadn't come into force, they'd probably consider it a waste of Parliamentary time), and they certainly wouldn't implement it in the interim, so this the only alternative.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Kyle Matthews,

    "Two things you never want to see being made: laws, and sausages."

    (West Wing, season 1 I think)

    Since Nov 2006 • 6243 posts Report Reply

  • Mark Harris,

    Chris Finlayson has told people that if a code of conduct can't be agreed, he will write a more detailed and prescriptive law himself.

    Not doubting you, Russ, but do you have a cite for that?

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Mark Harris,

    hearing it from two lawyers inclines me to believe that it is legally true)

    Ha! Put 4 lawyers in a room and ask for an opinion, you'll get more than 4 responses (one will be along the lines of "How many can you afford?").

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Sacha,

    Mark, I doubt there is a cite for that - yet.

    Ak • Since May 2008 • 19740 posts Report Reply

  • jon_knox,

    Had intended to attend the Modern Liberty Convention in London over the weekend, though tickets had sold out.

    Belgium • Since Nov 2006 • 464 posts Report Reply

  • Ben Austin,

    Damm, I forgot that was being held this weekend. Oh well

    London • Since Nov 2006 • 1027 posts Report Reply

  • Steve Parks,

    Anyone read this: Tizard's response to the delay in implimenting section 92A?

    Protests against section 92a that saw some websites temporarily removed and bloggers black out their photos were "childish", she says.

    "It is not going to get us any further forward. While I understand the concern of internet users who think that their rights to free music and free films are threatened, the right is not to steal New Zealand music and film makers' work."

    Doesn't sound like she listened to the concern's very well.

    The right to use the internet is a vital one, but libraries can provide it.

    yubabwhatnow?

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Rich of Observationz,

    Tizard: One of the big recording studios told me that whereas a couple of years ago they were fully booked and when they were giving time away it was at 4am, now they are only about 60 per cent booked.

    You don't think that might be due to most musicians now having pretty effective recording technology at home? Maybe they should be banning Cubase, Ableton and the like?

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Lyndon Hood,

    The Tizard thing is kind of an essay in the thinking that got us into this position.

    I understood people were buying video games instead. Although I don't get what that has to do with people booking recording space.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Stephen Judd,

    "Two things you never want to see being made: laws, and sausages."

    That's usually attributed to Bismarck, in a form something like "people who love the law and sausages couldn't sleep at night if they saw how they were made."

    Oddly enough I was looking for a verified source the other day. Couldn't find one, but it goes back to the 19th century anyway.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Russell Brown,

    The Tizard thing is kind of an essay in the thinking that got us into this position.

    Yeah, sadly.

    Auckland • Since Nov 2006 • 22848 posts Report Reply

  • Craig Ranapia,

    The Tizard thing is kind of an essay in the thinking that got us into this position.

    Sure, and I've not got a lot of sympathy for the way she waded into people who were quite capable of kicking back. OTOH, can you blame her for continuing to defend the indefensible (and, frankly, being the least credible person to accuse John Key of "fluffing" anything) when she;s spent pretty much her entire adult life in a FUBAR political/media culture where changing your mind, or (even worse) admitting you got something wrong, is a "flip-flop" or "u-turn" and a horrendous character flaw.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Don Christie,

    While I understand the concern of internet users who think that their rights to free music and free films are threatened

    It is interesting that Judith Tizard understands the concerns of copyright infringers but no-one else.

    Unfortunately those were not the people that were expressing their concern. It was businesses, artists, writers, copyright holders as much as anyone else.

    Judith, stop trying to misrepresent people to further your own lost cause. You are not that stupid so one can only assume you are being deliberately misleading.

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Stephen Judd,

    The thing that gets me is that there seems to be a large group of people, exemplified by Tizard, who:

    - think that (actual) ISPs and recording rights holders are the only players, even though there are many providers of network access who are not ISPs, and many kinds of copyright works on the net that are not music recordings, and;
    - don't seem to notice that the law is worded far more broadly than that.

    I mean, in principle, I'm not opposed to some sort of policy that specifically deals with the issue of private individuals sharing copyright works on peer-to-peer networks. (Although I'd want some intense and independent assessment of the economic harm suffered by rightsholders). But the law as drafted seems to cover far, far more than that case. It's as though Tizard is defending a different law than the one she presided over.

    Wellington • Since Nov 2006 • 3122 posts Report Reply

  • Don Christie,

    I should also say, that Judith Tizard now seems to be totally undermining the efforts of the Labour party, Clare Curren and Trevor Mallard especially, to resolve this issue.

    It will be interesting to see what happens if she comes in off the list to replace Cullen (surely that wouldn't happen).

    Wellington • Since Nov 2006 • 1645 posts Report Reply

  • Mark Harris,

    It might

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

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