Let’s be very clear about this. If Labour and the National Government had not agreed on a compromise around the temination clause in the Copyright Bill, we would have a piece of legislation coming back to the House which could cut off NZers internet accounts for six months.
Labour would have opposed the Bill. It might have been a high moral stand but it would have resulted in a bad law.
A law that would be able to require people to be disconnected because they have shared files. It wouldn’t have been easy to achieve and would have required a convoluted journey of receiving several notices by mail from your internet service provider (such as Telstra Clear, Telecom etc)
You may have been taken to the Copyright Tribunal. Or the rights holder (of the film, music clip or video game) that you downloaded may have decided to make an example of you and had the matter referred to the district court.
No matter that you had downloaded whatever it was for your own enjoyment, not to profit from it in any way. The court could order you to be disconnected. Never mind if you were 12 years old and part of a family that relied on the internet for all kinds of things. Or if you were elderly and lived alone and used email and the internet to communicate with the outside world.
In coming years the internet will become increasingly more essential in all of our lives. Disconnection is a disproprotionate remedy for file sharing.
A Bill that enacted a termination clause would have seen termination used as a remedy. This way it wont. Unless the copyrights holders manage to push for a review and the Minister of the day decides to enact termination as a remedy. In which case it is on that Minister’s head.
National’s position was immoveable. Termination would remain in the Bill. Labour’s position was that we opposed it.
In reaching this compromise, Labour believed it was better to have a piece of legislation that did not use termination as a remedy even if it remains in the Bill as a future possibility.
We would prefer it wasn’t there at all. But we also believe this is the best possible outcome we could achieve as the Opposition. This is not our Bill. It was originally our Bill (Section 92A) and despite the good intentions to make it work, it resulted in a grand stoush between the different parties which required a rethink. Labour pushed for and supported that rethink. What we’ve ended up with is better. If not perfect.
We are concerned that the government appears to have said today there will be a two year review of the decision not to enact the termination clause. This is news to Labour. It wasn’t put before the select committte and you should note that there will be an election in NZ before that two year period is up. Labour would not support a govt-led review and this could become an election issue.
But we still have concerns about a number of aspects in the Bill and believe there could well be room for further compromise.
A couple of comments:
It was always my view that a fine for copyright infringement was much more appropriate than termination of internet access. The view expressed in the commentary to the Bill that an award made by the Copyright Tribunal could include a punitive element and not just be compensation-based is justififiable.
We believe and hope that the notice and notice system established between ISPs and rights holders will be sufficient for the bulk of cases.
We do however retain concerns that the process will be too cumbersome and bureacratic and that the costs involved in setting up and maintaining a process that identifies and makes contact with potential infringers will be cumbersome.
We note the concerns raised by some around section 122MA of the Bill around where the burden of proof lies for infringement. We are keen to talk further with those who are concerned about this.
On balance we have tried to convince the government to strike a balance between the rights of copyright
holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.
And finally, it’s time for the debate to shift.
It’s time to move on from the issue of penalties for copyright infringement to looking at how we as a country can support new business models which enable our innovators and creators to benefit from their creativity and to control and distribute their own content to boost our economy and provide widespread access to information and entertainment. That’s what I want to see. Don’t you?
Good on Labour for improving this piece of junk. But does this still mean that corporations will still be able to search people’s hard drives?
Yes, the innovators and creators should get more benefits from things people access online. At the moment ISPs are charging way to much for this access, so people are not going to be that receptive to paying a little for access to some creative work. More money should be going to the creators and less to the ISPs IMO.
However, I’m not sure how easy it will be to shift a bit of the money flow in a different direction: ie to the creators.
And Internet access should never be terminated, especially as some people need it for work, study, access to financial info, job applications etc.
Haven’t had a chance to look at this but this sounds like the burden will be beyond reasonable doubt for a criminal offence. I can see some issues being raised given that a large amount of piracy occur in student flats with multiple wireless users so it may be hard to prove BRD.
Has anyone actually considered the practicalities of conducting such a prosecution?
I’m not really conversant with the technology but I hear you can get P2P IP spoofing programs now.
Awesome work, Clare. Thanks for keeping us informed – and also for showing us that getting interested people participating and speaking out makes this democracy work.
I’m not really worried about this in terms of the development of our copyright law. What really worries me is that when we come to negotiate an FTA with the United States – either bilaterally or through the Trans Pacific Partnership – we cave to their pretty uniform insistence in trade negotiations to mirror their intellectual property law. Australia, for example, was compelled to extend their copyright term to the life of the creator, plus 70 years. I don’t think that extra 20 years provides any extra practical incentive in the creation of artistic works.
Just stick with the Berne Convention. It’s an internationally recognised framework and it ensures that content creators continue to have sufficient incentive to innovate – which, remember, is why we have a copyright system in the first place. It’s not to maximise an economic benefit, it’s to foster the formation of new ideas.
Hi Clare, thanks for the clarification. It’s a pity that this compromise was needed but the Government are clearly pushing for termination.
Two questions,
1. What do you think about the presumption of guilt in 122MA? (e.g., considering the poor quality evidence that’s historically been given why shift the burden of proof?). Often the methods of detection are considered a trade secret and the software is, ironically, protected by copyright and not available even to the court. Proving ones innocence would be very difficult.
2. Do you know how the exclusion of libraries and universities is to be reconciled with stated desire for liabilities under “Exceptions to the remedy of suspension”?
Good work Clare. Excellent work Labour has done on copyright in its opposition. I am hoping one day you guys will also be able to reduce the length of copyright. So many great classic books are going unread because they are still owned by individual publishers charging high prices for them long after the author is dead rather than them being free to be printed by anyone allowing things like the Penguins classics books to be made lowering the cost enough for anyone to buy them.
Termination of internet access is ridiculous and should never have been considered in the first place. I am an IT professional and I know it is impossible to prove beyond reasonable doubt that a particular person was using a particular computer that was connected to a particular internet connection and was using a particular IP address (which is easily faked) that was logged performing illegal file transfers, unless the person proving it breaks the law themselves.
This can only lead to the creation of laws that further infringe upon our privacy by making it legal to monitor every kiwi internet user in this way.
I believe the people who create the works deserve to profit, not publishers, lawyers and ISP’s. Most ISP’s charge by the gigabyte, and are making a killing from piracy. This should be the focus of the governments stance against copyright infringement.
These crazy laws only make it through because people believe if you object to them then you must be an evil pirate. I am not an evil pirate, but I enjoy my privacy and object loudly and clearly.
Hi Clare, thanks for helping to get account suspension suspended. Not least, it shows that Labour has learnt a lot on this issue and is doing what it can to make up for it’s original disastrous bill.
My fear is that in two years time the media industries will simply say that *some* infringement still occurs, therefore they need termination/suspension.
I’m also concerned about the punitive damages – while compensatory damage was always obviously a bit light, I hope that the punitive damages don’t go too far in the opposite direction.
I look forward to any answers you have for Bronwyn’s questions too.
This new law will catch the small fish, or perhaps the stupid ones, and let the bigger and cleverer fish go free.
There are internet technologies widely used in New Zealand that can easily elude any type of tracking software.
This new law will not catch or deter anyone who is serious about downloading and uploading content.
I know people that download up to 150 gigabytes of content a day, uploading nearly as much.
“Disconnected” has an eerily similar ring to “excommunicated.”
Labour need to pull out all the stops on alerting the apathetic and critically disengaged computer users that will lose out from this bill. This is the sort of thing that could seriously tarnish National as a forward thinking Government.
Regressive and fascist.
And what about the poor innocent bleeps who aren’t breaking the law and are just going about their business! Must they be subjected to unfair tracking software?
Privacy laws? People can’t search a home without a warrent, but they can spy / stalk users without asking?
“new business models which enable our innovators and creators to benefit from their creativity and to control and distribute their own content”
Shareware, anyone remember that lol
It does worry me that some MPs are will to pass a bill that directly attacks our personal rights to freedom and privacy. This bill itself would only be a stepping block to worse things if it get through.
Anyway, how would they decode all the data into usable information/evidence and these guys clearly don’t understand how file sharing works!
Also since some much data goes through they would know which is a movie or just another email!
And I bet even some national pollies download copyrighted works as well.
What if my flatmate is sharing files? Am I guilty by association and therefore disconnected?
@Plutonian “What if my flatmate is sharing files? Am I guilty by association and therefore disconnected?”
You would get several accusations over several months, and if you were unable to prevent it occurring (e.g., if you couldn’t afford $1,500 NAT tracking equipment to correctly assign blame) then you could be taken to the Copyright Tribunal in which you would be presumed guilty and have to prove your innocence.
The problem of course is that most people have consumer grade hardware (a point raised in all of our submissions) that’s incapable of tracking and attributing blame correctly. Just like how most telephone systems within homes don’t track users, most home networks don’t track users.
As far as the penalty it would result in a punitive fine up to a maximum of $15k. The penalty of Internet Termination/Disconnectionis currently not used, it’s suspended.
“new business models which enable our innovators and creators to benefit from their creativity and to control and distribute their own content”
We can talk about business models, such as all-you-can-eat downloads with a monthly subscription, but within the context of law making there’s no way to establish an ‘APRA for movies’, or even to allow APRA themselves to sell an internet download license in the same way that they sell a music license to cafes. The record companies simply won’t let them.
Other countries like Korea get legal options for online movies before DVDs are sold, but New Zealand doesn’t. The United States have Hulu for TV and movies but there isn’t an equivalent here. New Zealanders are an honest bunch and we score very well on independent OECD measures for illegal copying.
Rather than just discussing business models (like those on newmusicstrategies.com, written by a NZer) and simply hoping those models get adopted I think that the important question is what law makers can do to encourage these models. E.g. If law makers decide that these companies have created some of the problem themselves then how can the law encourage them to change to fix this identified problem?
I think that it would be sensible idea if punitive damages were scaled based on whether there was a legal online alternative to the illegal download. This would encourage legal alternatives online.
Trying to modify the behaviour of the public without also trying to modify the behaviour of these companies won’t work, in my opinion.
Where’s the bleepin mandate for this?
“What if my flatmate is sharing files? Am I guilty by association and therefore disconnected?”
Maybe, simply by standing by and letting him download you could be acquiescing to criminal behaviour.
“And what about the poor innocent bleeps who aren’t breaking the law and are just going about their business! Must they be subjected to unfair tracking software?”
Spud before you can argue this point you will have to define why ‘unfair’ should be a factor and what ‘subjected to’ means. ISP already know who is torrenting because of the protocols used in managing traffic for fair use policies so its hard for them not to know . There is a legitmate use for tracking software especially in regards to kiddie porn etc
@Matthew and Bronwyn and others interested in the issues around section 122MA I’m not going to respond yet. I will in a couple of days becasue I want to give you the correct response. As you’d appreciate it’s important to get this right and I’m seeking clarification.
I’ll come back to you on your other issues too when I get a chance.
And I’m looking forward to the next discussion we can all have about good proactive policy for new business models and where the government can add value.
@JD “ISP already know who is torrenting because of the protocols used in managing traffic for fair use policies so its hard for them not to know. There is a legitmate use for tracking software especially in regards to kiddie porn etc”
You’re talking about current and incidental technology that could change in months to being encrypted using ‘onion-routing’. The increase in encryption makes detecting serious crime (pedophile-related images) much more difficult.
In other words, an overly harsh penalty for copyright infringement (either fines or termination) would simply push file sharing further underground, and ISPs would lose any visibility that they currently have.
Further, ISPs know the account but not the person responsible. If it’s a hacked WiFi or if it’s one of the 25% of computers that are compromised with malware (OECD reports) then obviously the ISP wouldn’t know that. To make an analogy: we don’t blame the owners of stolen cars if they’re used during the commission of a robbery, and even speeding fines are given to the driver, not the owner of the vehicle.
There’s a simple fact of modern copyright law is that if the public views copyright as an unfair or inequitable regime that does not represent their interests, they may refuse to recognise its boundaries. Therefore, to ensure the future prosperity of New Zealand artists it is essential to win the hearts and minds of New Zealanders with a publicly acceptable copyright regime.
While this report is an improvement in some areas, the presumption of guilt and lack of detail around the structure of fines does create fear and uncertainty. These are significant areas that need fixing to protect New Zealand artists.
@Clare Curran Thanks for looking into that Clare, we appreciate it. Cheers
“Where’s the bleepin mandate for this?”
Ummm cos National won the 2008 election?
As another who has expressed to you an interest in Section 122MA, I look forward to clarification. Interested to know why the suggested text of the Bill says the accused only needs to offer “reasons” to shift the burden of proof to the accuser, but the body of the report says “valid reasons”. Also whether defences such as “fair dealing” are available at this point.
I’m all for cracking down on kiddie porn, but – and I make this point in haste as I’m going to be leaving soon – I define unfair as being something that the public don’t want, that in my opinion has few benefits and is an injustice against innocent surfers.
I don’t recall National campaigning on using tracking software on innocent people. And even if they did, which they didn’t, people protested against this legislation last year, which to me proves that they have the opposite of a mandate to do this!
I answered you, my comment is in mod. Probably because of the topic you brought up!
@JD
“Maybe, simply by standing by and letting him download you could be acquiescing to criminal behaviour.”
Oh my goodness gracious me. I kicked in my flatmates door and searched his room when he was out. No downloaded material on his computer but I did find a tape that he recorded off 91 ZM so the search was not altogether fruitless. Recording songs off the radio, while fun, is also dangerously criminal.
Oh by the way I download 150 gigs a day. I use a private hub so I can’t be tracked or traced. Nyahaha!
Clare Curran is just fantastic. She actually cares deeply about civil liberties. She almost (but not quite) makes up for Stuart Nash. And she’s a fox.
Oh man
I answered JD, but I can’t rebutt him without my comment being freed 
Waaaa 
What amuses me most about this is that fines of up to $15K are still considered ‘acceptable’ as a penalty. I suppose next to disconnection that’s a smaller issue of relevance, but that is still an extremely substantial penalty to impose in a situation where people are being forced to prove their innocence, and in defense against incredibly weak evidence at that.
Noncommercial sharing copyrighted works is not a crime that should incur any penalty of that magnitude. Commercial infringement is already highly illegal, so this isn’t going to stop that or provide any further deterrent.
In any event, a few other thoughts that stick out to me:
1. How is downloading going to be measured? What’s the yardstick here for illegal downloading to be ‘curtailed’ before the disconnection is activated in a deliciously unaccountable manner?
Or are we just handing this over to RIANZ to make up more numbers, as they so love to do?
Are we tracking torrents, Rapidshare/Mediafire, people trading USB keys, what? Some idea of methodology would be nice, instead of talking in abstracts. If this is published somewhere, I’d appreciate a link; of course I’m skeptical, because this sounds like more of the same media buzz-talk from people that don’t get how the internet works.
File sharing isn’t done over conveniently monitored networks that cough up statistics. File sharing is done by people that know more about IT than the people making this law.
I’m expecting more RIANZ story-time, personally.
2. Still no provision for people that get hacked, because oops you’re guilty because this guy said so. And is that ever ripe for abuse.
I need to give a tutorial demonstration on how easy it is to crack a wireless access point, because this bill as it stands is going to end wifi in this country.
WEP and the most widely used WPA2-PSK security are *not* defenses against being hacked. So what happens when somebody wardrives your network that you thought was secure? Oops that’ll be $15K. But at least they didn’t get their internet disconnected, right?
Nobody’s going to keep a hotspot around under those conditions. But I guess we’ll be tracking down kids at Starbuck’s who downloaded some MP3s? Good luck with that.
Criticism of this bill has been too forgiving and only attacking a few obvious weak points. In truth this entire concept is flawed from the ground up; it’s based on entirely unrealistic ideas on how piracy happens and how it can be remedied, with a breathtaking dearth of technical knowledge as an underpinning.
If you want to make this work, then there needs to be some robust provision put in to protect the individual being accused, to allow defenses against wireless hacking/wardriving, and just get rid of any penalty over $1000.
This will, of course, defang the bill entirely; but that’s kinda the point. The whole thing is redundant and useless anyway. The pirates that are a threat to the media lobbyists aren’t the ones that will be getting notices. It’s garbage that people can face a fine of up to $15K and have to show up in court with limited ability to defend themselves.
I said this in my submission and I’ll say it again here: either the bill allows you to defend yourself, or it doesn’t. If “I got hacked” is a defense (and it MUST be), then nobody can be proven guilty.
If “I got hacked” isn’t a defense, then this is guilt on accusation in effect, even if it’s not in the wording. You show up to the tribunal and say “yeah my wifi got hacked” and they go “too bad, pay up”. That looks like guilt on accusation to me; you just get the tribunal to sign off on it. That doesn’t appear to have changed, and it’s a damn sneaky way of putting in the through the back door.
What a joke of a travesty of legislation this is.
Agree with Matt.
As insulting as it is labour is against a setup that members of their party started cough Tizard cough. The most insulting aspect is the level government is bending to corporations based on an absolutely appalling level of evidence. Baseless claims that other governments have stated are flawed, being swallowed whole by elected officials, to the absolute detriment to the cultural and economic development of ALL New Zealanders, not just the few that make their living, parasitically on true creators, wielding an aging copyright law as their stick.
It is already illegal to download content, make the content copyright owners protect their own damn IP and don’t sell NZ out by circumventing our legal system with this garbage.
@ Matt Perryman
Someone who understands all the issues.
“File sharing isn’t done over conveniently monitored networks that cough up statistics. File sharing is done by people that know more about IT than the people making this law.”
Agree and agree.
This bleepin law shouldn’t be made in the first place!
!
@Matt Perryman
I agree. We’ve asked for information on how the fines will be calculated but we still have no information. Artists use Fair Dealing allowances but these are aren’t among the listed criteria for a defense, and neither are hacked computers or networks (despite these being used as verbal examples of defenses by officials). You’re completely right that it’s a trivial matter of a point-n-click to hack most networks with free software that anyone can download.
Old copyright law was about regulating an industrial manufacturing process, but modern copyright is about affecting what people do in their homes. Bronwyn wrote this to MED officials today: “As artists we’re aware of the danger of alienating the public (who support us as our fans). If the public views copyright as an unfair regime that doesn’t represent their interests, they may refuse to recognise its boundaries. So to really support New Zealand artists it’s essential to have a publicly acceptable copyright regime.”
There’s a lot of changes needed yet to make this publicly acceptable.
@ Matthew Holloway:
What I’d like is a direct answer from the MPs voting for this bill, and anyone else speaking up about how great this new bill is and how it’s such a triumph for , to the following question:
If you get a series of infringement notices and are required to appear before the Tribunal, and you haven’t pirated anything and aren’t aware of any such behavior on your network, what are you going to do?
Can you prove that your WAP wasn’t cracked? Can you prove that your IP address wasn’t spoofed to a torrent swarm? You, as the MPs recommending this bill, are willing to risk this penalty yourself?
Don’t think you’re immune because you don’t pirate, or even know how to pirate. It’s easy to say “don’t pirate and you’ll have no problems” when you haven’t considered what this entails. The nuances of technology do not allow this statement –
“[W]e consider it important that all account holders take measures to ensure that infringing file sharing does not occur on their account”
– to reflect any kind of reality. Instead, this demonstrates that the committee only took away from the submissions what it wanted to take away and ignored the rest (like the part where people who work this this technology laugh at the above quoted statement. That might be a hint).
Virtually everyone “takes measures to ensure ensure that infringing file sharing does not occur on their account”. We have substantial bandwidth caps in New Zealand, and consequently unsecured wifi would be quickly eaten up.
The problem, which the committee willfully ignored — willfully because I know it was brought to their attention — is that there are no measures which can even significantly prevent 1. file-sharing on the account and 2. the illusion of file-sharing occurring on the account due to the actions of malicious users (i.e., aforementioned IP spoofing as one example of many possibilities).
If anything, this will give file-sharers that much more incentive to crack the neighbor’s WEP or spoof a MAC address to go torreting on the Starbucks’ hotspot. Or just hide behind a cheap VPN in Africa and not worry about it.
But let’s vote it in and applaud it because it’s not so bad. That’s really how the government wants to operate? By being willfully ignorant and pressing on anyway?
Nevermind. That was a dumb question.
“There’s a simple fact of modern copyright law is that if the public views copyright as an unfair or inequitable regime that does not represent their interests, they may refuse to recognise its boundaries”
Thanks,this sums up very nicely the reason i Fileshare.
I was always happy to support the TV programs i loved and because i use BT that means buying boxsets which i have done, but lately i have become alienated by the tactics of the industry and it’s manipulation of soveriegn Nations for the benefit of corporations always to the detriment of the individual.So i stopped buying new content and switched to second hand DVDs and Games,no more $$$$ from me HOLLYWOOD!