If you wish to make public comments on 'Fix Section 92' you can post them here...

Alternatively anyone who wishes to make comments please email cff@holloway.co.nz

rules in this thread: keep it friendly, and keep it ontopic

Summaries of submissions so far (by email, twitter)

Add a time-limit from the date of the alleged infringement within which a notice needs to be filed.

Needs to deal with more than IP address-based complaints.

We need to include S92C in this due process, including counter-notice reinstating material (especially considering cases like The Roulettes getting material taken down).

In the 3rd to last paragraph what's the point of deeming a breach? Shouldn't it just proceed to the tribunal then?

"should a high-impact copyright breach (e.g. pre-release torrenting of a new U2 album) carry a higher fine?" (note: apparently the album got out early due to an online store legally selling it early)

"previous [TCF] ISP definition was a handy way to transfer risk"

Matthew Holloway wrote

Summaries of submissions so far (by email, twitter)

"should a high-impact copyright breach (e.g. pre-release torrenting of a new U2 album) carry a higher fine?" (note: apparently the album got out early due to an online store legally selling it early)

"previous [TCF] ISP definition was a handy way to transfer risk"

Those comments were mine (via Twitter) so here's some amplification/clarification FWIW....

I can't see that the $1000 maximum fine is going to fly with rights holders (personal opinion - no rights holders were consulted, harrassed or harmed in making this opinion). I pulled the U2 example from thin air (I wasn't aware it had actually happened) but the premise still stands i.e. some breaches - such as being the first to torrent a new album by a mega band - will have a far larger financial impact on a rights holder than others. Trying to ascribe an arbitrary fine without taking such circumstances into account trades off reality for simplicity IMHO.

My view is that it suited the TCF to create their own definition of "ISP" in the original code of conduct. The fact that it was one which transferred away much of the risk which would have otherwise landed in their laps is probably not coincidental. It will therefore be interesting to see their take on this part of the proposal.

It's great to see CFNZ facilitating the ongoing conversation. This will be an "interesting" process but, given that it's one which all parties need to see completed successfully, I am hopeful of a result everybody is not completely unhappy with (the chances of a result which *everybody* is *entirely* happy with are probably very remote but I'd love to be proven wrong in time)

Brett Roberts, Microsoft NZ
(note: the above opinions are mine and not necessarily those of my employer)

Brett Roberts wrote

some breaches - such as being the first to torrent a new album by a mega band - will have a far larger financial impact on a rights holder than others.

Agreed. The punishment needs to fit the crime but it's also true that they always have the courts available to them for large-scale infringement or harm.

So as you'll see in the introduction there is a question about the heavy-weight process vs light-weight and what punishment is appropriate.

Could you comment on,

1) whether you see a need for small-scale tribunal or would you prefer everything to be a court (with the costs due to the heavy-weight due process).
2) do you think it's acceptable for light-weight tribunals to award large fines.

Quote

My view is that it suited the TCF to create their own definition of "ISP" in the original code of conduct. The fact that it was one which transferred away much of the risk which would have otherwise landed in their laps is probably not coincidental. It will therefore be interesting to see their take on this part of the proposal.

Presumably you mean the definition of an ISP and a downstream ISP?

Re crime & punishment: Why not leave it up to the complainant? After all, they're the ones initiating the process. If you have a tribunal acting like a small claims court with a streamlined procedure, then it should only have restricted powers of punishment. If the complainant isn't happy with that (i.e., they think the transgression warrants something more severe), then it's up to them to go through the hassle and expense of bringing a full prosecution. This approach retains the right to do so when the complainant feels sufficiently aggrieved but also keeps things relatively simply (addressing one of the original recording industry complaints about the legal process here) when the crime doesn't warrant the full force of the law.

Hi rikki, thanks for your comments,

rikki wrote

Re crime & punishment: Why not leave it up to the complainant? After all, they're the ones initiating the process. If you have a tribunal acting like a small claims court with a streamlined procedure, then it should only have restricted powers of punishment. If the complainant isn't happy with that (i.e., they think the transgression warrants something more severe), then it's up to them to go through the hassle and expense of bringing a full prosecution. This approach retains the right to do so when the complainant feels sufficiently aggrieved but also keeps things relatively simply (addressing one of the original recording industry complaints about the legal process here) when the crime doesn't warrant the full force of the law.

Yes, there is typically a relationship in courts and tribunals between the detail of the process and the punishments and this is discussed in the introduction to the 'fix s92' document.

Matthew Holloway wrote

Brett Roberts wrote

some breaches - such as being the first to torrent a new album by a mega band - will have a far larger financial impact on a rights holder than others.

Agreed. The punishment needs to fit the crime but it's also true that they always have the courts available to them for large-scale infringement or harm.

So as you'll see in the introduction there is a question about the heavy-weight process vs light-weight and what punishment is appropriate.

Could you comment on,

1) whether you see a need for small-scale tribunal or would you prefer everything to be a court (with the costs due to the heavy-weight due process).
2) do you think it's acceptable for light-weight tribunals to award large fines.

Quote

My view is that it suited the TCF to create their own definition of "ISP" in the original code of conduct. The fact that it was one which transferred away much of the risk which would have otherwise landed in their laps is probably not coincidental. It will therefore be interesting to see their take on this part of the proposal.

Presumably you mean the definition of an ISP and a downstream ISP?

1) I'm not sure one-size-fits-all. My intial thoughts are that first-time offenders might be dealt with in a different way to repeat offenders and large scale offenders might be dealt with in a different way to small scale offenders. More thinking/reading/research is needed on my part before I'd have a strong opinion on this aspect
2) Define "light-weight". Are you talking about the size of the tribunal or the capabilities and experience of the tribunal members ?

Yes, the concept of a "downstream ISP" is the one I was referring to

Brett Roberts wrote

1) I'm not sure one-size-fits-all. My intial thoughts are that first-time offenders might be dealt with in a different way to repeat offenders

Sure, a distinction for repeat infringers makes sense.

Quote

and large scale offenders might be dealt with in a different way to small scale offenders. More thinking/reading/research is needed on my part before I'd have a strong opinion on this aspect

Ok, so I suppose what we need is feedback on whether you think that the courts are inadequate for large scale infringers, or whether small-scale copyright infringers are a worthy niche for a tribunal.

The issue is that heavy penalties typically demand a lengthy, thorough process and expensive lawyers. Or as Rochelle Hume says, "Copyright holders want a cheap resolution because of the magnitude of non-compliance. But the only way to have a cheap resolution is to have an arbitrary and therefore potentially unfair resolution. Rochelle's rule of dispute resolution = the cheaper and quicker the process - the more capacity for arbitrary and unfair result. I think rule 92A was enacted to pander to copyright holders desire for a cheap process so they could catch more copyright 'infringers' and keep their money flow coming in (or increase it), without having to face the potential unfairness to users, because that difficult balancing act was delegated to the individual ISP's policy. Lucky ISPs."

Brett Roberts wrote

2) Define "light-weight". Are you talking about the size of the tribunal or the capabilities and experience of the tribunal members ?

It's light-weight in the sense of the process, potentially like disputes tribunal. They'd need to be trained.

Matthew Holloway wrote

Brett Roberts wrote

1) I'm not sure one-size-fits-all. My intial thoughts are that first-time offenders might be dealt with in a different way to repeat offenders

Sure, a distinction for repeat infringers makes sense.

Quote

and large scale offenders might be dealt with in a different way to small scale offenders. More thinking/reading/research is needed on my part before I'd have a strong opinion on this aspect

Ok, so I suppose what we need is feedback on whether you think that the courts are inadequate for large scale infringers, or whether small-scale copyright infringers are a worthy niche for a tribunal.

The issue is that heavy penalties typically demand a lengthy, thorough process and expensive lawyers. Or as Rochelle Hume says, "Copyright holders want a cheap resolution because of the magnitude of non-compliance. But the only way to have a cheap resolution is to have an arbitrary and therefore potentially unfair resolution. Rochelle's rule of dispute resolution = the cheaper and quicker the process - the more capacity for arbitrary and unfair result. I think rule 92A was enacted to pander to copyright holders desire for a cheap process so they could catch more copyright 'infringers' and keep their money flow coming in (or increase it), without having to face the potential unfairness to users, because that difficult balancing act was delegated to the individual ISP's policy. Lucky ISPs."

Brett Roberts wrote

2) Define "light-weight". Are you talking about the size of the tribunal or the capabilities and experience of the tribunal members ?

It's light-weight in the sense of the process, potentially like disputes tribunal. They'd need to be trained.

I suspect what rights holders want most of all is "resolution". "Cheap resolution" would obviously be better than "expensive resolution" but I still don't have a firm view on how a tribunal should be structured or what sort of powers it should be given. I look forward to some lively debate on this subject from people who know what they're talking about (and, no doubt, some who don't). The fact that the tribunal members should be well-trained and qualified for the role is stating the obvious.

Personally I don't buy into the conspiracy theories about the legislation "pandering" to one party or another and I also hold the heretical view that access to the internet is not a God-given right and should be removed from those who abuse it (child porn traffickers, spammers, criminals and repeat copyright infringers included).

Are there any plans to get some of the interested parties together in a room to discuss options etc ?

I just had a crazy idea while reading these posts and I haven’t fully developed it so don’t all jump on me at once, but how about a system that allows accused violators to buy off the accuser without any legal process at all? Many cultures incorporate a concept similar to this.

In other words, copyright holder A accuses downloader B of copyright infringement. No proof required, just like 92a. The accusation is passed on via the ISP. The accused now has a choice of denying the accusation or buying it off for a small payment. If the accused buys it off, the accuser must accept and the matter ends there. If the accused chooses to deny the charge, the accuser has the choice of dropping the matter, bringing it before the tribunal, or instituting full-blown court proceedings.

The accuser A is not obliged to lodge a claim via the ISP first. This is just an added option that offers A the possibly to make a claim without having to provide proof or go through a formal procedure. If A prefers, a claim can instead still be directly brought before the tribunal or the courts, but then of course standards of evidence and more complex proceedings apply. The advantage to A is that minor infringements can be notified with little cost or effort. In effect these become warnings that put B on notice.

If B really is up to no good, B will probably choose to buy off the complaint rather than risk the tribunal or court. In this manner A receives compensation for the violation with no proof required and no hassle involved. At the same time, B gets a second chance and the courts aren’t brought into it unless B fails to make the agreed payment. And if B does it again, A can always go to the tribunal over the new infringement.

If B really hasn’t done anything wrong, or doesn’t think so, then the matter goes before the tribunal anyway unless A drops it. This seems to me like a fair and balanced approach in the first instance. A only has to prove the charge if B denies it, and B can buy off the accusation without admitting guilt. The tribunal and courts are still there if needed, but they no longer have to be the first resort.

It’s just an idea. What do you think?

I have a question about the definitions of ISPs. I had a look at the definition of "Carriage Service Provider" in the Aussie Telecommunications Act (1997), and went round and round and didn't find my question answered.

How would a mesh network be handled?

Currently mesh networks (and particularly wireless mesh nets) are not yet that common, but they might well become more common, and I'm interested in what their legal status would be.

For those who aren't familiar with the term, in such a setup, a person might connect to the internet by connecting to one or more of a large number of wireless access points, themselves connected to one or more other nodes, in a "mesh". Some of these nodes would be connected to traditional ISPs, providing gateways to the wider internet.

The point is, a mesh network doesn't have the hierarchical structure which the law seems to assume, where some ISPs are "the real deal", whereas other "downstream" ISPs are strictly dependent on their single upstream ISP.

background reading: Wikipedia: Wireless community network

@rikki

Interesting idea ! The way I read it you're suggesting a parking ticket-like process apart from the fact that the 'parking fine' would be negotiated between the two parties. There is the technical/process necessity of involving the ISP in order to link the IP address / date / time information to a specific account holder and then requesting their contact details but the concept of a "fair cop, how much do I owe ?" process is innovative.

@Brett,

Nothing indicates the essential difference between copyright and other property than the apparent acceptability of the negotiation you and rikki discuss.

Can you imagine a shoplifter being offered this option at the door of the store?

I imagine it would offend a lot of peoples' ethical sensibilities, that its acceptable to attempt infringement and then deal your way out of it, only if caught.

Hamish wrote

@Brett,

Nothing indicates the essential difference between copyright and other property than the apparent acceptability of the negotiation you and rikki discuss.

Can you imagine a shoplifter being offered this option at the door of the store?

I imagine it would offend a lot of peoples' ethical sensibilities, that its acceptable to attempt infringement and then deal your way out of it, only if caught.

@Hamish

Infringing and then attempting to deal one's way out of it when caught seems to me to be the basic underpinning of our judicial system.

I said the concept was "interesting" (which it is) and "innovative" (which it is). I'm not sure it 'offends my ethical sensibilities' and I'm not sure it would work either.

I suspect that 100% of shoplifting cases don't make it to court so there must already be some sort of 'dealing' going on. I wonder how effective "if caught shoplifting you agree to pay 1000 times the face value of the product(s) shoplifted" signs would be in reducing theft in Foodtown ? The thought of a $1000 can of Watties spaghetti might be more of a deterrent than going to court :-)

As has recently been pointed out (again) somewhere on these forums, copyright infringement is not theft. It is copyright infringement, a different crime altogether.

The vested interests that have been pushing so hard for draconian legislation against file sharing have also done their best to confuse this issue with lots of hysterical ranting about it.

Copyright infringement is wrong and it is a crime. But it is not theft. Theft is depriving someone else of their property by taking it away from them. File sharing does not meet this definition. Comparing it to shoplifting is disingenuous and just confuses the issue.

My proposal is not about buying off a worse penalty only if you happen to get caught. I was careful to state that this would be an added option offered to the accuser to cover situations that might not meet the demands of a formal process. The accuser could still go straight to the tribunal or courts if desired. The accused could decline to deal and also go through the legal system. The buy off option would only arise if both parties agreed to it.

Brett Roberts wrote

2) Define "light-weight". Are you talking about the size of the tribunal or the capabilities and experience of the tribunal members ?

It's light-weight in the sense of the process, potentially like disputes tribunal. They'd need to be trained.


I suspect what rights holders want most of all is "resolution". "Cheap resolution" would obviously be better than "expensive resolution" but I still don't have a firm view on how a tribunal should be structured or what sort of powers it should be given. I look forward to some lively debate on this subject from people who know what they're talking about (and, no doubt, some who don't). The fact that the tribunal members should be well-trained and qualified for the role is stating the obvious.

Personally I don't buy into the conspiracy theories about the legislation "pandering" to one party or another and I also hold the heretical view that access to the internet is not a God-given right and should be removed from those who abuse it (child porn traffickers, spammers, criminals and repeat copyright infringers included).

Are there any plans to get some of the interested parties together in a room to discuss options etc ?

One of the problems I have found in getting interested parties in a room is that this is very much an international discussion. Whether you are talking Big Music/Big Film of Big ISP or Big Software or whatever they all know that a blink here or a concession there will be used a a precedent Worldwide. Given that those same players also are in the middle of "negotiations" and jockeying around new business models which will decide who gets to clip the digital delivery ticket (and how much, if at all), little wonder that no-one wants to blink first. However, I am ever the optimist and would like to think that the fact that we literally rub shoulders with each other all the time here in NZ means that we have an opportunity to fashion something that works. CFF is also doing a great job in presenting the user perspective in this because the above negotiations can take place in a vaccum if we are not careful.

I think you are right Brett in saying that one size will not fit all. So, for me, the first thing to decide is who we are trying to attack here. Seems to me there are three categories of "infringer":

- commercial
- non-commercial but flagrant/persistent or whatever you might consider to be "serious"
- non-commercial occasional

Once you categorize in that way, you start to be able to decide what remedies should be applied to each.

Then, once you decide on the remedies (i.e. how serious they are), you can adopt the "Hume" test and decide how quick and dirty you go for each level (i.e. what process). At a lower level of remedy, you might be prepared to accept something akin to the .nz domain name dispute resolution system (see http://www.dnc.org.nz/drs/). At the upper end, nothing short of a court would suffice. A streamlined copyright tribunal might fall in the middle somewhere.

Seems to me that one of the problems with the old s92A was that we started at the other end with the remedy and tried to apply that to everyone.

Gavin Knight suggesting Stephen Franks' approach

http://www.gavinknight.com/2009/03/replacing-s92a-in-nzs-copyright-act.html

Matthew Holloway wrote

Brett Roberts wrote

some breaches - such as being the first to torrent a new album by a mega band - will have a far larger financial impact on a rights holder than others.

Agreed. The punishment needs to fit the crime but it's also true that they always have the courts available to them for large-scale infringement or harm.

I think it's a pretty good stab to be honest. I also tend to agree with Matthew above.

At the outset the rights holder has the sole discretion to choose the lightweight process or not. The lightweight process brings with it;
- Lower costs
- Faster resolution
- A maximum fine that should be sufficient to deter all but commercial infringers

In choosing the lightweight process they agree to be bound by the outcome (a little like arbitration) and they accept that there is a limited potential for recovery of 'damages'. Remember that the award of damages to the rights holder is still at the discretion of the tribunal. This makes the s92a process about the deterence of casual copyright infringement which is, I think, the correct overarching purpose.

The rights holder could equally choose to take the matter to court. They can do this today. The rights holder may choose to do this where they think there are actually significant damages to be recouped (the 0-Day torrent example or a commercial infringer) or where they want to make a particular example of a repeat infringer.

I have mixed feelings about it.

On the one hand, it's a vast improvement on the original s92. On the other, it still accepts the basic view of online filesharing etc promoted by NZFACT et al (that it's a crime that must be punished).

I wonder whether we shouldn't also be suggesting alternative ways of looking at the issue? For example, reasserting the notion of 'fair use' - after all, there have been constructive efforts in other countries towards having non-commercial file-sharing clearly defined in law as fair use, in return for a small tariff on certain media (blank DVDs etc).

Of course, there are debates about whether even that is a fair solution - but the point is that, imho, the industry lobby's claims that filesharing is unarguably wrong and a crime and must be stopped are part of the problem.

As a (professional) artist, I think we need to be a bit bolder in redefining copyright so that it accepts the reality of filesharing, and is realistic about whether it's really causing the harm that's ascribed to it.

Isn't CFF the place to have that wider discussion? I mean, maybe something like this draft might end up being used as a compromise position for the short term - but I strongly feel we need to expand the terms of the whole debate now, while the question is still wide open.

I suspect that in 10 years, people will look back on this issue and be surprised at how much effort was expended trying to criminalise fileswapping. I mean, who today seriously believes it's criminal theft to make a mix tape for your girlfriend - or to tape a programme off TV?

At the very least, I would like to see a distinction made between commercial copyright infringement (eg. selling bootlegs at the local market) and non-commercial (eg. emailing an MP3 to a friend). The former can legitimately be treated as a crime (imho), but not the latter.

My fear is that groups like (NZFACT's American sponsors) FACT and Time Warner have shown to be ruthlessly extortionate and unreasonable on this issue; I'd hate to see a Copyright Tribunal allowing them to demand $1000 from every kid in NZ who's downloaded a song off the internet (especially if they can demand a separate $1000 for each song that kid's downloaded over the past month).

Even $1000 seems unbelievably disproportionate to the harm.

Sorry if this is overlong and incoherent - it's been a hectic week and my mind feels like cottage cheese.

Hi there, I've followed this law closely and am VERY glad it has been trashed, It was horrible in it's first form.

So helping is great..here goes.

As the term ISP stands (Not sure what it includes at the moment) But it needs to include things like:

A place that multiple users act on the internet via, Though I have an individual IP i'm governed by my ISP, But this should lead the law to include Proxies under this definition, If someone is running a proxy or service like this even extending to an IRC Bouncer, They should be included as an ISP

I think that is really important because someone who runs a VPN service, A caching proxy, A TOR exit node is really no worse than an ISP, They should be held accountable for their users in the sense they should pass on the information and allow it to be pursued through the police or whatever.

This is really important that ISP be broad, Because if I run an exit node, or a VPN I'm just as blind to my users as Telstra the only reason I would normally be singled out and put up for charges is I'm too small to fight for myself, it simply isn't easy for me to fight a copyright infringement notice when I don't have the copyrighted data but it passed through my systems by offering a service.

I hope you can try and address these issues, Because I do run ISP like services myself and would hate to be charged under any 92a derivative for things I can't control

Would love comments, on this as well

Also what about try before you buy? Constantly this is DONE and it is proven to increase music sales, Not all piracy is bad, So why should I pay $1000 for a song I listened to once and hated anyway, Or being charged $1000 for an album i purchased the next day

I've only got one problem with the idea of a buy out scheme. What is to stop Copyright holders saying you can buy yourself out of this for $x, and if you don't, we will make your life a living hell. Most people will pay the sum, guilty or not, just to get the rights holders off their backs.