Legal Beagle by Graeme Edgeler

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Legal Beagle: Asserting ancient rights

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  • Kyle Matthews,

    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."

    Actually there's a lot of quotes in the West Wing which come from history.

    Martin Sheen's line about the poor men throwing their caps over the wall so that they had no choice to follow. That's a mangled J F Kennedy quote (I think it originally comes from Ireland, so Kennedy might have taken it from his Catholic roots).

    TV writers steal with the best of them.

    Since Nov 2006 • 6243 posts Report Reply

  • Tim McKenzie,

    Graeme, I'd be interested in your opinion on this:

    However, the Act implies Parliament’s acquiescence to a “guilt by accusation” method of copyright enforcement through an avenue that avoids the stringent evidentiary requirements of the courts.

    That's from NZLawyer.

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • Graeme Edgeler,

    Graeme, I'd be interested in your opinion on this:

    However, the Act implies Parliament’s acquiescence to a “guilt by accusation” method of copyright enforcement through an avenue that avoids the stringent evidentiary requirements of the courts.

    It seems rather out of step with the other statements made in the article; for example:

    Section 92A effectively imposes the work of a court on the shoulders of a commercial ... entity. ISPs will be required to both make a judgement and carry out the sentence.

    If one of the problems is that section 92A requires ISPs to exercise judgement, it is hardly guilt by accusation.

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

  • Mark Harris,

    The point, to me, is surely the avoidance of due process for enforcing a law.

    The law as written regards you as guilty when accused by a copyright holder and you have to then prove your innocence to the ISP. This is directly counter to natural justice, as enshrined in our system, of innocence until proven guilty. In a court, you are considered innocent until the prosecution has proven their case. S92A removes that.

    What the TCF Code may or may not do will be limited to the bodies that agree to it. It will make no change to the law, which is wrong, and it will not prevent anyone from another jurisdiction, or even from this one who is not party to the voluntary code, will not have to abide by the procedure of that code. Thus you will be guilty until proven innocent.

    I am puzzled why you can't seem to get this.

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Tim McKenzie,

    OK, then, what about section 92C? That section rewards ISPs for removing access to material as soon as that ISP "has reason to believe that the material infringes copyright". And,

    A court, in determining whether ... an Internet service provider knows or has reason to believe that material infringes copyright in a work, must take account of ... whether the Internet service provider has received a notice of infringement

    Would you agree that in this case, punishment is likely to happen upon accusation? So is this "guilt by accusation", or are we punishing the not-guilty?

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • giovanni tiso,

    OK, then, what about section 92C?

    I was at a talk in Wellington the other night - with members of the library community, for the most part - and at one point they all rose in unison to voice their disgust at 92C. It was taken as read that everybody would know why, I still haven't looked it up. Could somebody, er, give me the gist of it?

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Lyndon Hood,

    The law as written regards you as guilty when accused by a copyright holder and you have to then prove your innocence to the ISP.

    The law only says what to do if you are guilty. If you aren't guilty (or in many possible cases, if you are) and you get disconnected, the law will not be being follow.

    (And having to defend an allegation is not an assumption of guilt. And under the code, you could magically defend yourself with an assertion, and I assume matter would then move to the courts if required.)

    The nub of the alarm I think is that the mechanism for determining guilt isn't there. The industry and users have filled it with their dreams and nightmares respecively, which happen to be the same.

    And yes, for various reasons (eg ISP ass-covering and investigation-shirking), probably including copyright-related paranoia caused by witnessing traumatic copyright-related assaults, I'm inclined to think that the law wouldn't be followed and people could be disconnected by allegations - or at least that the possibility is worth getting alarmed about.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Lyndon Hood,

    And, as I like to add at this point, various other practical outcomes are alarming and I don't like the intention or the approach either.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Lyndon Hood,

    92C: Someone complains about shit on your website, the ISP removes it, or else they're liable too. The end.

    That looks like guilt by accusation, without such a penalty (depending admittedly on how important the stuff on your site is).

    It's traditional to be able to avoid this with an "oh-no-it-isn't" notice but I don't see provision for that.

    Anyone know?

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Lyndon Hood,

    I am of course using 'shit' as a generic noun. The pipes are not that big.

    Wellington • Since Nov 2006 • 1115 posts Report Reply

  • Tim McKenzie,

    I was at a talk in Wellington the other night - with members of the library community, for the most part - and at one point they all rose in unison to voice their disgust at 92C. It was taken as read that everybody would know why, I still haven't looked it up. Could somebody, er, give me the gist of it?

    You can read all 250-odd words here, but as I understand it, the gist of it is this:

    Suppose, (somewhat) hypothetically, that BrokenSea Audio puts up some adaptations of the Conan the Barbarian stories, whose copyright has expired in New Zealand. Then suppose (somewhat more hypothetically) that Conan Properties International tells BrokenSea's webhost that they're storing material that infringes CPI's copyrights. Then the webhost will remove access to that material (and possibly also remove access to all of BrokenSea's website, just to make sure they didn't miss anything). If the webhost fails to remove access to the material, then they risk being taken to court by CPI for copyright infringement. On the other hand, if they do remove access promptly, then Section 92C means they didn't infringe copyright by storing that material, even if it was there for a long time before CPI claimed that it infringed their copyrights.

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • giovanni tiso,

    Thank you. The 250 odd words by themselves weren't spectacularly clear to me.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Graeme Edgeler,

    92C is effectively guilt by accusation - but you aren't disconnected from the Internet as a result of the accusation. The result is that offending material is removed from a website (or a website itself is removed).

    The law as written regards you as guilty when accused by a copyright holder and you have to then prove your innocence to the ISP.

    No you don't, or rather, s 92A does not require this.

    Lyndon is right when he notes "having to defend an allegation is not an assumption of guilt".

    The police charge me with assault. I go to court and plead not guilty. Because I pleaded not guilty, the judge says, thank you, you are acquitted. This is not "proving your innocence".

    What the TCF Code may or may not do will be limited to the bodies that agree to it. It will make no change to the law, which is wrong, and it will not prevent anyone from another jurisdiction, or even from this one who is not party to the voluntary code, will not have to abide by the procedure of that code. Thus you will be guilty until proven innocent.

    The codes that have to be adopted have to be adopted by NZ ISPs (even though that is broadly defined). If my ISP has adopted the TCF code it does not matter whether some overseas copyright claimant agrees to it or not. My ISP will apply their code.

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

  • Mark Harris,

    The police charge me with assault. I go to court and plead not guilty. Because I pleaded not guilty, the judge says, thank you, you are acquitted. This is not "proving your innocence".

    Correct. You don't have to prove your innocence when you go to court. You are innocent until the court deems otherwise. You don't have to provide any evidence at all.

    Not providing any evidence under 92a will likely be taken as an admission. Either way, no court is involved. That's what is wrong.

    The TCF code of practice is a red herring. It is a voluntary document that has no force of law and can and will be overlooked by aggressive rights-holders, especially those based overseas, regardless of whether your ISP has signed the code. Because the ISP will be looking down the barrel of expensive liability litigation if they decline the demand.

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Mark Harris,

    It's traditional to be able to avoid this with an "oh-no-it-isn't" notice but I don't see provision for that.

    No, there isn't. That would be the "notice and notice" model which was suggested during consultation, but the Government decided to stay with the "notice and takedown" model. This model is also in the DMCA, but there is a metric crapload of procedure and requirement in that legislation that is not in our Act.

    Waikanae • Since Jul 2008 • 1343 posts Report Reply

  • Rick Shera,

    This may now be a defunct thread but I though I'd just make a few comments:

    1. Your starting point Graeme re the lack of constitutional due process with the "suspension" of s92A should not surprise anyone. I think we would all be hard pressed to recall a more illegitimate gestation of any law since Muldoon's time. Submissions to Select Committee substantially against s92A, MED officials say it is not required, Select Committee takes it out, SOP, unannounced, puts it back a week before Act passed (and at same time takes out penalties for false or misleading s92C notices ... by SOP?!), Tizard says that Cabinet policy always trumps Select Committee and everyone should have known that, original Gazette notice is mucked up, then two delays and the suspension announcement which also seeks to make the passing of a law conditional on an agreement between two non-representative private bodies.

    2. Re the s92C vs s92A issue, one result of the ill-considered rebirth of s92A is that, effectively, the guilt by accusation which is implicit in s92C also flows inexorably into s92A. So, if someone posts twenty (or whatever number=repeat) allegedly infringing posts on an ISP hosted website, the ISP may get a separate s92C takedown notice for each of them, decide it has "reason to believe" an infringement is taking place, and therefore remove those posts. Each of those takedowns is effectively an acceptance of infringement by the ISP, so, at some stage, if the person keeps posting allegedly infringing works (which of course they may well do if they dispute that they are infringing), under s92A, the ISP will need to terminate their internet account. That is why the TCF code uses the words "reason to believe", in an attempt (as futile as it may be) to introduce consistency into the mess which is the whole of s92.

    3. To answer someone's question, as Mark H says, no, s92C does not have a counter-notice procedure (and so is worse than the US DMCA - as I have said here). Again, in an attempt to at least add some degree of fairness, the TCF code borrows heavily from the DMCA counter-notice procedure in the US.

    Auckland • Since Feb 2008 • 25 posts Report Reply

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