We're sad to see that RIANZ, APRA, and NZFACT are continuing to push for Section 92a: a flawed law that presumes guilt upon accusation, punishing internet users with disconnection without a trial or evidence held up to court scrutiny. Since our launch one month ago thousands of artists have rejected the idea that the creative sector want this done in their name. Similar laws overseas have been used to stifle free speech and harm public rights. No one wants to deprive money from artists, but this law is an inappropriate and extreme measure for dealing with copyright infringement.

You can read the full RIANZ, APRA, and NZFACT press release here..., this post however is a response to some of the points raised.
(If you wish to comment on this in our forums please keep it civil.)

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Press statement re implementation of 92a of the Copyright Act
New Zealand Creative Industries welcome changes
16 January 2009

Section 92a brings an opportunity for ISPs and rights holders to work together to address the large-scale online piracy problem that is affecting creative industries in New Zealand and worldwide.

This is an urgent issue and it cannot be solved without help from ISPs.

Just to clarify, the definition of an ISP within 'Section 92' is quite broad and it practically includes any organisation providing the internet to others such as schools, hospitals, internet cafes, hotels, basically any business or organisation with multiple users on a single internet connection.

This also includes libraries who provide the public service of internet access. The Library & Information Association New Zealand Aotearoa described Section 92a as "requiring ISPs to terminate the account of a repeat infringer (which, if the repeat infringer is a user illegally accessing or downloading in-copyright materials on a library public-access computer, may result in the library, and possibly also the organisation (e.g. council, university, school, etc) to which the library is attached, to lose all Internet access)".

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This is not about ISPs policing the internet, it's about ISPs responding to a high standard of evidence of infringement and illegal activity on their networks supplied by rights holders.

Actually it's about alleged copyright infringement, and it could only be "illegal" once proven in a court. Even Judith Tizard said that it would be easier to catch people who "might be breaking the law" which brings into question the purported "high standard of evidence".

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More than anything it is about educating users. ISPs must play a role in this.
It is estimated that 19 out of every 20 music downloads is an illegal download. Between 60 -80 per cent of all internet traffic is peer-to-peer sharing of copyright infringing files. This deprives the songwriters, record artists, actors and all those who work in the creative industries the opportunity for payment for their creativity and effort to produce the songs, movies and software you enjoy.

Section 92a is intended to help address these issues.

No one is seriously arguing that copyright infringement isn't a problem.

What people are seriously arguing is that suspending due process and giving copyright holders extraordinary powers to be able to accuse people and take down their internet without court involvement is a problem. S92a contains no specification for the requirement of evidence – so there is no way that ANYONE can guarantee that there will be a “high standard of evidence of infringement and illegal activity”.

Conflating these two issues 1) copyright infringement and 2) the lack of court involvement does not help the public discussion around Section 92a. Despite S92a's best intentions, it is still a deeply flawed and poorly drafted piece of legislation that has the potential to punish scores of innocent people.

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Evidence of those engaged in such activity will be put before the ISP and a graduated response to this illegal activity will start with the issuing of an education letter. Ultimately, if the illegal activity continues despite these warnings, the ISPs will then terminate the user's internet account.

This graduated response safeguards user privacy as the ISP interacts directly with subscribers without the need to disclose to the rights holders their identities. Importantly, there should be no termination of the accounts of responsible businesses and organisations such as hospitals and schools as they will have responded to the first warning and prevented further infringement taking place.

As we have already pointed out, 25% of computers are infected with viruses that download and distribute material without the owners knowledge. What happens to owners whose wireless internet connection is compromised? What if that owner is a school or hospital? S92a contains no guidelines for these situations, and it seems that RIANZ, APRA, and NZFACT are similarly ignorant of these common occurrences that may cause innocent people to be punished. Stating that hospitals and schools will have responded to a first warning is a huge assumption to make, as is the assumption that rogue users, viruses, or naive children will not infringe again once reconnected.

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Research and practice overseas and here at home, indicates that this process will be an effective deterrent and the vast majority of users will stop or prevent illegal filesharing happening over their internet connection after one or two warnings.

Actually, when France proposed a similar law* it was struck down in the European Parliament as being against "a fair balance between the various fundamental rights."
* technically it was an EU directive but you get the idea.

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Anthony Healey, Director of NZ Operations, APRA, says: "To say that creators shouldn't get paid simply because digital technology makes sharing music (and other creative works) possible is ridiculous."

This is perhaps the most disappointing part of the press release. No one is seriously saying that creators shouldn't be paid. Conflating the issue of copyright infringement and guilt upon accusation laws is dishonest and misleading.

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ISPs must act responsibly and accept that there is some cost to the mass of data travelling their lines.

Yeah right, just like how we hold NZ Post responsible for the packages they carry, or Telecom for the phone calls they carry.

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Tony Eaton, Executive Director of NZFACT, says: "Those working in the creative industries need the protection from theft of their work and livelihood that this legislation does afford. In working closely with the internet industries we hope to achieve a reasonable and proportionate response to the problem and thereby save the future of music, movies and other creative industry."

Here at CFF we are also interested in a “reasonable and proportionate” solution to the problem of copyright infringement that takes profits away from artists, but s92a is not the way forward. This law has the potential to punish innocent people – including artists – removing their right to a fair trial. Already, thousands of artists have signed our petition against s92a, showing that this is NOT something that artists want done in their name.

To RIANZ, APRA and NZFACT – we agree that we all need to work together to find a workable solution for the issue of copyright infringement in the digital age, but this is not the solution. Its not too late to change your mind. Join us: sign the petition against Guilt Upon Accusation laws in NZ.

If the process outlined in that press release were what was codified in law, then there would not be such a problem. It's all very well for the industry to say that is how it will work, but that's not the requirement, and as far as I know there's no agreement from the ISPs about the implementation.

RIANZ et al can talk all they want about high standards of evidence, but who's to say that the ISPs are going to implement any such plan? Having worked at an ISP I'd expect that preferred response would be to automatically instigate whatever process is decided upon without really paying any attention to the substance of the allegation (after all, verifying evidence would be an intensive process).

If there is to be a high standard of evidence, then that standard should be established in law. If there is to be a staggered response process, then that should be established in law.

And, of course, there needs to be an appeals process, and some accountability.

Bronwyn Holloway wrote

Actually it's about alleged copyright infringement, and it could only be "illegal" once proven in a court. Even Judith Tizard said that it catch people who "might be breaking the law" which brings into question the purported "high standard of evidence".

Good catch Bron!

(the way they describe it it's almost like they want to be vigilantes)

if there really is a "high standard of evidence" why did they lobby and get the penalty for false accusations removed? Surely they don't mind if we put the penalties back in?