A Statement About Monday’s "Internet Blackout" as reported in the Herald

The front page of Friday’s NZ Herald featured an article on the new proposed Section 92A with some quotes from Bronwyn Holloway-Smith and the news of a “blackout” protest against the law that’s (apparently) happening on Monday.

We have no involvement in any blackout protest on Monday and prior to the article we had no knowledge of any protest occurring on Monday. Yet the photo accompanying the NZ Herald article talks about a protest on Monday and it features our 2009 blackout image and logo. Further, we can’t find any information online about a 2010 blackout protest.

A cheeky person might question whether NZ Herald simply got 2009 and 2010 confused. Google News often does it, but would NZ Herald really do the same? We’ve asked the author of the article, Vaimoana Tapaleao, for some more information and we’ll update this blog post when he responds.

After reading the article it would be easy to think that the CFF were against the new s92A but infact it’s similar to our proposed alternative to the original s92A and we are generally supportive the new proposal. We would have responded sooner to the NZ Herald article but CFF Director Bronwyn Holloway-Smith has just had a baby, so her and CFF co-founder Matthew Holloway were busy yesterday (to say the least).

Until then let’s be very clear about what we think of the new s92A:

  • It’s a massive improvement on the original.
  • People are innocent until proven guilty, and the new proposal respects this.
  • The new proposal has due process and independent experts judging infringement. This is a essential for maintaining public respect and this is crucial to modern copyright.
  • The new branch of the Copyright Tribunal has a maximum fine that’s equal to that of the Disputes Tribunal (15k). Remember, this is a large scary figure for the infringement but this is the maximum and it’s much less than the existing Copyright Act that New Zealand has. In practice it’s still unclear how much the fine for infringement of a movie or a song will be and in our previous submission we suggested that — to allay public fears — they should quantify some expected amounts. Unfortunately the NZ Herald article’s title has proven us right by using the title “$15,000 Penalty for Web Downloads”. If they scare the public with giant amounts like 15k then the education side of this bill will be lost — we need some real figures promptly.
  • The new proposal doesn’t seem to deal with open wireless access points that are provided as a public service in thousands of places in New Zealand (airports, municipal WiFi, libraries, etc.).
  • Of course we’re still against internet termination as a form of punishment however they have moved this facility to the courts rather than the tribunal and — just to spell it out — this means that unless there’s a court case then your internet connection will be fine. We are still against terrmination as we consider it an essential service (if your Telecom XT phone is out you could use Skype to make a local emergency call) and because society doesn’t similarly cut off electricity or phonelines… internet termination is an inventive and inappropriate punishment and it will seem increasingly outdated as time goes on and the internet becomes more necessary. The Ministry of Justice rightly raised issues of free speech in their submission.
  • However we don’t (as it was said in the NZ Herald article) consider the ability to sign-up elsewhere to be a “flaw” of the bill. We are against termination as the internet is essential to modern participation in society (much like the roads, phones, and electricity). Therefore if there is termination in the bill then it’s essential that people can sign-up elsewhere so that they can use banking facilities, use email, and so on.

We’ll be taking this feedback to the Select Committee process, and we’ll be writing more about the new bill and over the next few weeks.

But there’s no internet blackout protest planned from us.

10 thoughts on “A Statement About Monday’s "Internet Blackout" as reported in the Herald

  1. It’s still completely ridiculous that they want to force higher fees on ISPs simply for the cost of maintaining the require paperwork to satisfy the “rights holders”.

    There’s absolutely no reason whatsoever for ISPs (and thus, the consumers) to have to fork over money to (allegedly) protect a small industry that can’t even prove that the activity in question harms it’s livelihood.

    When RIANZ, or the IFPI, or the RIAA can establish causality between piracy and lost sales, in the midst of record profits, then they can perhaps justify this. Otherwise it’s just a matter of a business cartel buying it’s laws, and I can’t support that no matter what improvement it is over the original.

    The net effect of this will be to force more file-sharers to use encryption and VPNs – and it’s not as if rights-holders are just catching people in droves anyway; BitTorrent isn’t LimeWire or Napster. So more cost to the consumer for a futile and useless “protection”, and made into law by people that don’t understand the technology in the first place.

    What a great bargain.

  2. I’d be careful to assure people that caught 3rd time infringes aren’t going to face near max fines. There’s mountains of proof which is mostly likely what the Herald is basing it on is that when given the chance they’ll try to go for the max amount.

    Even if it doesn’t make common sense and seems wrong. The millions defendants in other countries have been required to pay for small amounts of proven infringement just shows that the punishment based on perceived loses can never be guessed at using common sense. The anti-piracy companies are no fools to think they can catch most people but the ones they do catch will be crucified as an example to deter others.

  3. So basically, you are rolling over on this?

    the worthless media companies can make baseless claims, off the front of inconclusive evidence and you then become guilty?

    Yeah, cos we know that the evidence that has been shown multiple times to be worthless will suit the overall requirement.

    Never mind that it is impossible to defend against? what can you say? “yeah, didnt download it”

    honest injun

    Sure, its no longer 16tons of manure dumped on our doorsteps,

    its only 6 tons

    but thats an improvement, right?

  4. the worthless media companies can make baseless claims, off the front of inconclusive evidence and you then become guilty?

    No, that would clearly be a bad law.

    I completely agree that a lot of the so-called evidence in copyright infringement claims online is false. However this doesn’t mean that good evidence can’t exist, or that people can’t defend themselves.

    The law will have experts in copyright law deciding infringement so Fair Dealing exceptions will allow many . It clearly also needs experts at data forensics so that people aren’t punished for malicious or baseless claims. It is possible to people to defend themselves because, like any trial, there are independent people deciding this.

    Are you familiar with the people on the Copyright Tribunal?

  5. I’m not a supporter of this Bill, but this is the lesser of two evils. This Bill is far better than the original Section 92A was, but at the same time it is not without it’s faults.

    There should be provision in this bill for dealing with false claims filed by copyright owners. I am aware that there is a filing fee payable to ISPs, but noone knows how much that will be at this stage. There needs a penalty for repeated false claims or big content copyright owners will be firing these notices off in their thousands on the vaguest hint of infringement. It would be rather like fishing with dynamite.

    To help prevent false positives, there should also be the requirment that evidence use to provide accusations must be provided by an accredited party or licensed investigator, and gathered by documented and peer-reviewed process.

    Timeframes need to be looked at. The current proposal has a stand-down of three weeks between the issuing of notices, but alleged infingers only get 7 days to respond to a notice. This is simply not enough time to seek legal counsel and prepare a response. People have a right to defend themselves from accusation, and 7 days is not a reasonable time to prepare a defense (especially for a busy family). On top of that, if the infringement notices were be snail-mailed, the time would be from the date the notice was sent, rather than when it was received, giving someone even less time to respond.

    Finally, I believe the definitions of the terms “Infringing” and “File Sharing” need to be refined. Section 35 of the Copyright Act 1994 (covering the Infringement by Importation) states that “a person infringes copyright in a work if…. (1)(c) the object was imported into New Zealand other than for that person’s private and domestic use.” This bill mentions downloading as an act of infringing file sharing and contains no such protection for private and domestic use. It would be legal for me to bring a pirated CD into the country for my own use, but downloading a single song on bittorrent would be illegal. The definitions of “Infringing” and “File Sharing” at not in keeping with the context and spirit of the rest of the Copyright Act. Surely, the real people that this bill should be targeting are the people who are making the content available on the file sharing networks.

  6. It clearly also needs experts at data forensics so that people aren’t punished for malicious or baseless claims.

    unfortunately, current data collection technologies have shown nothing but malicious or baseless claims.

    grandmothers, dead people, and the best, printers being accused of infringement.

    Will it only become an issue when Judith Tizzard is accused of copyright infringement because her ip addy is seen by some corporation in association with a torrent?

  7. I can think of a whole number of reasons not to support this bill in any shape or form:

    * It places the burden and the entire cost of enforcement, on the ISP and of course the customer. Why? Why should the entire service-provider industry be penalized solely to the benefit of the “content industries” when they can’t even deliver proof that they’re actually losing money?

    * http://dmca.cs.washington.edu/ Read it, know it, love it. It’s clearly possible for a user to intentionally spoof his/her IP address to frame other IP addresses. While proving large-scale infringements is certainly worth the time and effort to the anti-piracy groups (which is already a criminal matter anyway), any “casual downloaders” will have more than adequate defense because of this. Assuming we’re really dealing with a truly impartial tribunal that’s sufficiently aware of the technology issues, that is.

    * There’s been nothing addressing how wifi hot-spots will be handled, shy of placing cost and burden on the businesses providing these services.

    Are individual Internet users going to be required to keep 40 days of access logs to meet the needs of the content industries, as well? What happens when your grandmother has her WEP security cracked (because WEP has more holes than swiss cheese) and receives her infringement notices?

    Is this copyright tribunal truly going to be educated to handle these matters, or are we just seeing a rubber-stamp for the interests of the content industries?

  8. Someone once defined a Compromise, as a Solution neither party is happy with…

    The core principle of the right to contest accusations, and to not receive the punishment until it has been through due process, is now in NZ’s copyright law again. That was the one thing I would never compromise on.

    However we must remain vigilant. The injustice was not obvious in the old law, it only reveals itself when you think through how the law could possibly be implemented. I’m gonna keep following this closely.

  9. Only allowing seven days for an alleged infringer to respond seriously compromises the core principle of the right to contest accusations. For someone who is not technologically savvy, who may actually be innocent, it will potentially take them much longer than seven days to seek advice and respond to an accusation, by that time the window of opportunity for objection will be closed..

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