Draconian Internet Copyright Law Dead, Or Is It?

New Zealand Parliament relents after public outrage

Section 92A scrapped, to be re-written

New Zealand Commerce Minister Simon Power announced today that Section 92A of New Zealand's copyright law will not come into force on 27 March as previously planned.

As outlined in my 16 February 2009 article, Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted, under this ill-conceived law, internet users’ accounts would have been terminated as a result of unproven accusations of piracy. Section 92A stated that if a copyright owner thinks an internet user guilty of repeatedly breaching copyright, the user’s ISP would have been forced the terminate the user's internet connections and websites.

In protest of this law and under encouragement from the Creative Freedom Coalition, thousands of New Zealanders blacked out their websites, Myspace pages, Facebook photos, and Twitter accounts.

In my 13 March follow-up to that article, Draconian New Zealand Copyright Law Foundering?, I noted that New Zealand's Telecommunications Carriers’ Forum (TCF) spent weeks trying to draft a Code of Practice dealing with the implementation of Section 92A, but TCF member TelstraClear stated they would veto that code.

New Zealand Prime Minister John Key said Monday:

"We have now asked the minister of commerce to start work on a replacement section [for 92A]... There is a need for legislation in this area. Some progress was made between copyright holders and the ISPs but not enough to agree a code of conduct... In our view there are a number of issues that made it difficult to complete that code of conduct without fixing the fundamental flaws in section 92a."

The bottom-line in all this: Which is ultimately most important? Ensuring above all else that an extra 30-cents go into the pocket of a—likely wealthy—copyright holder, or protecting the rights of all citizens to due process of law in the face of unproven accusations? Seems like a no-brainer to me.

Does the New Zealand Parliament—or the government of any nation—first and foremost represent and protect its citizens? Or does it despotically chuck the peoples' rights out the window in order to placate grumbling, paranoid, billion-dollar corporations whose sole reason for existence is to make money? Should the rights of such corporations be protected? Certainly! But NEVER at the expense of the basic civil rights of the people which a government is required to protect!

Such corporations are acting purely in self-interest: By pressuring politicians to enact this and similar draconian laws, they have shown that they have absolutely no interest in the rights of others. These corporations and their representatives, the RIAA, RIANZ and others, are NOT police forces, they don’t know how to be police forces, they cannot be trusted to behave responsibly as police forces, and they must not be given—by any nation—the power to act as police forces. If they have evidence of theft of their products, such evidence should be turned over to appropriate authorities for a proper and lawful investigation—as any other private entity is required to.

Lets hope—indeed, all New Zealanders should expect and require—that in re-drafting this despicable law, New Zealand's Parliament—civil servants, NOT civil masters—will, this time, do their damn jobs: Protecting and ensuring the rights of the people of New Zealand, rather than abrogating those rights—and Parliament's mandate—by giving entertainment guilds, for pity's sake, independent powers of judge and jury over all internet users in New Zealand.

What on Earth were they thinking?

New Zealanders should contact their MPs through instructions and links on this page and let the rascals know you expect them to ensure civil rights and due process of law.

Draconian New Zealand Copyright Law Foundering?

Major player TelstraClear withdraws its cooperation

Update! See follow-up article: Draconian Internet Copyright Law Dead, Or Is It? March 23, 2009

On 16 February 2009, I wrote about the New Zealand Copyright Act (Section 92A) in Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted. This law would allow American and New Zealand film and music industries to pressure Internet Service Providers (ISPs) to terminate any individual or business users solely on their say so.

On 23 February, the New Zealand government suspended Section 92A which had been scheduled to become active on 28 February. For months, the ruthless law has been under fire from many quarters—not the least of which are some of the ISPs themselves.

Members of the Telecommunications Carriers’ Forum (TCF) a New Zealand organization which develops standards and codes of practice for the New Zealand telecommunications industry, have spent many weeks trying to draft a Code of Practice dealing with the implementation of Section 92A: That Code of Practice needs a unanimous vote to pass TCF's board.

Now TCF member and New Zealand Internet Service Provider giant TelstraClear have stated they will veto the code, saying:

"TelstraClear considers that there is a fundamental problem with the TCF being a party to any code of this nature, which is that the code would be based on flawed legislation… In TetstraClear’s view, any industry code would simply be an attempt to tidy up poorly drafted legislation. TelstraClear does not consider this to be the responsibility of the TCF. Indeed the best outcome would be if s92A was repealed. Failing that, it should be amended to address the above concerns."

InternetNZ, the group which oversees the Internet in New Zealand—including the management of the .nz domain name system—says implementation of Section 92A will be impossible without TelstraClear's participation:

...TelstraClear’s decision not to support the Telecommunications Carriers’ Forum Copyright Code of Practice means the Government should promptly repeal Section 92A of the Copyright Act.

“Executive Director Keith Davidson notes that the TelstraClear decision means the TCF cannot now implement the Code.”It is clear that the agreement that the Government sought will not now be reached between ISPs and rightsholders. To attempt to bring 92A into force now would invite disaster,” Davidson says.

“The problems with the Code have come to a head because the Government made the future of Section 92A dependent on agreement between a limited group of rights holders and a small number of ISPs.

“What about everyone else who is affected? Section 92A applies to any business that provides Internet services to its staff or hosts a website, and can be triggered by any rights holder or claimed rightsholder with a genuine complaint or a malicious axe to grind,” says Davidson.

The University of Auckland has expressed its concerns:

"The main problem is in Section 92A of the Copyright Act which we believe should be removed from the Act or, if it is to remain in some form, then substantially redrafted with input from stakeholders as would have happened during a select committee process."

"The activities of a university also make use of third party copyright materials. These activities could be seriously affected by copyright notices from rights owners demanding the termination of the accounts of a staff member or a student who has legitimately downloaded material under the fair dealing and education provisions of the Act or under the many licences [sic] the University holds to copy and use third party copyright materials. Universities largely have processes and penalties in place to deal with any copyright infringement by staff and students, but these may or may not incorporate the termination provisions. The requirement to terminate accounts or comply with a Code which cuts across those policies threatens institutional autonomy. A university may face unreasonable compliance costs and procedures if it adopts the Draft Code."

Judge David Harvey, former Chair of the New Zealand Copyright Tribunal and author of Internet.law.nz - Selected Issues
has this to say:

"[Section 92A] is poorly drafted and makes a number of unsupported assumptions, but in essence it suggests that an Internet service provider must develop a policy to cancel an existing contract as a result of copyright infringement.

"The reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract... section 92A is unnecessary and gives rise to a situation where a person may be deprived of rights under a contract without proper legal process."

Google voiced its objections in a 6 March 2009 document to TCF:

“Google has a number of concerns around the new section 92A and the impact the section 92A obligation is likely to have on the balance of interests served by copyright law:

"Section 92A undermines the incredible social and economic benefits of the open and universally accessible Internet, by providing for a remedy of account termination or disconnection that is disproportionate to the harm of copyright infringement online.

"Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement. In Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders.

"Section 92A could impose significant burdens on ISPs, as it threatens to require enforcement of policies based simply on rights holders’ allegations of infringement."

There are those who maintain that the withdrawal of TelstraClear sounds the death knell for Section 92a, but the New Zealand parliament is still debating courses of action.

The bottom line in all this is that no one—anywhere—should be deprived of their civil rights, of due course of law, particularly when the accuser is a private party with an agenda but no clear evidence of an internet user’s wrongdoing.

The battle for New Zealanders’ civil rights continues.

Guilt On Accusation - Draconian Internet Copyright Law To Be Enacted

The New Zealand Parliament Wins Our 'Useless Git of the Week' Award

Three Strikes and You Are Terminated

Will It Happen In The US?

Update! See follow-up articles:
Draconian New Zealand Copyright Law Foundering? March 13, 2009
Draconian Internet Copyright Law Dead, Or Is It? March 23, 2009

A new draconian law in New Zealand allows the American and New Zealand film and music industries to pressure Internet Service Providers (ISPs) to terminate any individual or business users solely on their say so. If an ISP resists, they may be sued for not complying with the new law--as has happened in Australia.

Under a new provision in the New Zealand Copyright Act (Section 92A), which comes into force on 28 February, internet users’ accounts can be terminated as a result of unproven accusations of piracy. Section 92A states that if a copyright owner thinks that an internet user is guilty of repeatedly breaching copyright, then the user’s ISP will be forced the terminate their internet connections and websites.

In an internet version of the Salem Witch Hunts, the concept of “innocent until proven guilty” will be thrown out the window. Termination of Internet access will occur without any evidence, without a fair trial, without any right of appeal, and with no punishment for anyone making erroneous or malicious accusations of copyright infringement.

A "copyright holder" can get you kicked off an ISP without having to provide any evidence of an actual infringement. Having to [provide evidence] is apparently "impractical" and "ridiculous" in the words of RIANZ [Recording Industry Association of New Zealand] chief executive Campbell Smith. What happens when the "you" above is a public library, or a school? Or if the "copyright holder" makes a mistake or a malicious accusation?

--ComputerWorld Magazine (New Zealand)

Making mistakes can be an easy thing to do. 25% of computers are infected with viruses that download and distribute material without the owners knowledge, interaction or consent. What happens to computer users whose wireless internet connection is compromised? What if that user is a school or hospital?

Already, New Zealand Internet Service Provider giant TelstraClear's head of corporate services, Matthew Bolland, has stated that from 1 November 2008, TelstraClear is taking down websites upon a single accusation of copyright breach. "We don't check or verify," Bolland said "We take it down." ISPs like TelstraClear do not and cannot identify copyright infringement which is why this law forces them to take such actions.

Too bad if the IP has been spoofed, or the accusation is unfounded or even malicious--there is no right for contesting the claim. Too bad too, if the IP is being used by a school, library, university, hospital, business or even a government office!

Justin Graham of the New Zealand law firm Chapman Tripp confirms that the act fails to differentiate between individual accounts (home users) and internet accounts with multiple users such as businesses.

Rick Shera, a partner in law firm Lowndes Jordan, says ISPs have to decide whether material infringes copyright after receiving a complaint. If ISPs choose to leave the material up they have no protection from liability for secondary copyright infringement. The risk of not removing material is, therefore, greater than the risk of taking that material down, Shera says.

Effectively, a single person's bad behavior can bring down an institution, all because certain elements of the recording, videogame and movie industries can't solve their own piracy problems.

"Businesses support the need to protect intellectual property, and we are sympathetic to the significant problems the music, movie and gaming industries face. However, balance is the key. Protecting one person's interests at the expense of others is completely inappropriate," Telecommunications Carriers Forum chief executive Ralph Chivers said.

More sadly, it's symptomatic of a technologically uneducated group of political decision makers being taken for a ride by lobbyists putting their interests ahead of the nation.

--National Business Review (New Zealand)

"What it does is it forces internet service providers to cut off the internet of anyone who's accused of infringing copyright, not found guilty, just accused," said Bronwyn Holloway-Smith of New Zealand’s Creative Freedom Coalition.

Until August, Elliott Smith had over 100 videos on YouTube. Then, he made the mistake of uploading Olympics footage without permission and within 12 hours his account was suddenly deleted.

"I emailed YouTube and they didn't get back to me. So I ended up just setting up a new account. It's probably easier than going back but I didn't have any of my old videos or anything saved to my hard drive so it's a bit of a hassle," said Smith.

The new law forces New Zealand ISPs into the untenable position of being the police, judge, jury and executioners for the entertainment industry. “Three-strike” laws--as proposals to force ISPs to terminate internet users merely accused of illegally downloading copyright material have been called--are being pushed globally by “Big Content” representatives of the entertainment industries. Australia and France recently caved-in and agreed to enact such laws, though the Parliaments of the European Union and the UK have rejected them.

In protest, the Creative Freedom Coalition and others have organized an “internet blackout” February 16-23, during which they encourage internet users to: “Join thousands of New Zealanders already against this law by blacking out your Facebook photo, your websites, your Myspace pages, your Twitter account, in protest against this unjust new law that may come into effect on February 28.”

How long before it happens where you live?