Last week CFF Director Bronwyn Holloway-Smith participated in a debate on Section 92A. Here is Brenda Wallace's writeup: "the debate on section 92a, between Bronwyn Holloway-Smith (Creative Freedom Foundation), Ant Healey (APRA) and Technology Journalist, Pat Pilcher. View streaming on demand from tvnz Episode 2, 5 Feb 2009 (in chapter 3)."

The following is quoted from Brenda's writeup of the debate:

Some snippets transcribed for the hear+flashplayer impaired:

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Moderator: Have you gone back to your members? because [Creative Freedom members include] APRA members who are really unhappy about this.
APRA:... We're a big organisation .. of 6,000 members, of course they will have divergent opinions. We are governed by a board of composers, a board of directors who are composers. We have clear instructions about posistion to take

(he didn't answer the question - did APRA consult their members or not?)

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APRA: We must, we must not stand idly by and watch really core important rights simply be ignored
Moderator: But you've just had your best revenue year ever last year. You don't seem to be suffering from this.
APRA: well, we are. If you look at the revenue streams that revolve around the revenue from CD sales, a small part of which goes to the composer, of course we are. I could give you those figures and the figures would be decimated.

...they've had their best revenue ever - but cd sales are down so this means we need to do something about the decimation of vinyl records magnetic tape CD sales.

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CFF What we're concerned about, and the artists we represent are concerned about is this law .... people labelled guilty until proven innocent; and that's not somethat that artists want done in their name.
APRA: It simply won't happen. having been part of the process..
Moderator: That's a nice thought but I'll need you to justify that statement
APRA: I don't believe that that will be the case.
CFF: That's leaving it up to ISPs and anyone but the courts to define, isn't it? It's nice to think that people will behave and not make false accusations

.. moment of silence.

They then spoke about the TCF draft code. It's important to realise this is just a code to help ISPs cope with this law , and is not the law itself.

Adhering to the code won't necesarily protect and ISPs from lawsuits from "rights holders" who do not agree with the TCF code.

(and an ISP" is anyone who provides internet to someone else. e.g. schools, libraries, cafes, flatmates sharing internet, and any employer who provides internet to their staff.)

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APRA: The standard of evidence that will be required will be extremely high - at least as high if not higher that that would required by a civil or a criminal court.
Moderator: Then why not go through the courts?
APRA: Simply the government have put in place.. they have seen a problem and they've seen a solution to the problem. they've left it up to the ISPs and the rights holders to provide and answer and that's what we're trying to do.

Does anyone know of a successful copyright infringement + internet case in New Zealand? What percentage are successful? Have APRA in the past had a level of evidence that can stand up to court scrutiny? And how will we ensure they keep to a high level?

The MED FAQ, when speaking of notices for Section 92C says:

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Q: Must the notice of infringement be in any particular form or contain specific information?
A: No, the notice of infringement needs to only provide the ISP with sufficient information for it to become aware that the material in question infringes copyright. In order to make it simpler for copyright owners to prepare a notice of infringement, a template for the notice will be prescribed in Regulations to the Copyright Act.

back to the debate:

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APRA Sure, along the way peopele have dreamed up extreme situations. I don't believe it's reality, and i don't belive it's going to happen.
CFFIsn't that a bit naive? It won't just be New Zealanders making these accusations. These accusations can come from overseas, via organisations like the Church of Scientology, like the Recording Industry Assocaition of America (RIAA) who similarly have a reputation of making accusations that don't hold up to scrutiny.
APRA: Look, if you're going to take this conversation down to the level of the Church of Scientology and let the Church of Scientology to the processes that we want to put in place...
CFF That's not the point.
Moderator The point is you can make an copyright claim and get something removed in circumstances where you can't under defamation law

And many other motives. becuase it's an ISP who is forced to the make the judgement, they very likely won't be trained know the difference between free speech, fair dealing and copyright infringement - and even if they do they'd be taking a risk and making themselves liable for copyright infringement by not acting with a disconnection or content takedown. It's a brave "ISP" that doesn't disconnect apon accusation.

-- Quoted from Brenda Wallace's Blog under a Creative Commons license.

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Moderator: Have you gone back to your members? because [Creative Freedom members include] APRA members who are really unhappy about this.
APRA:... We're a big organisation .. of 6,000 members, of course they will have divergent opinions. We are governed by a board of composers, a board of directors who are composers. We have clear instructions about posistion to take

in other words, we make the decisions at board level and be damned what our 6,000 individual members think!

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APRA: We must, we must not stand idly by and watch really core important rights simply be ignored
Moderator: But you've just had your best revenue year ever last year. You don't seem to be suffering from this.
APRA: well, we are. If you look at the revenue streams that revolve around the revenue from CD sales, a small part of which goes to the composer, of course we are. I could give you those figures and the figures would be decimated.

the royalties composers receive for CD sales is minuscule in comparison to the live performance and broadcast revenue pools ... in fact this would have to be the lamest quote/excuse ever used

The real reason behind the "best revenue year ever" was due to a staggering increase in licensing tarriffs - in some instances the fees have doubled overnight and they have no reason for this increase but for a need to increase the profit lines

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APRA: The standard of evidence that will be required will be extremely high - at least as high if not higher that that would required by a civil or a criminal court.
Moderator: Then why not go through the courts?
APRA: Simply the government have put in place.. they have seen a problem and they've seen a solution to the problem. they've left it up to the ISPs and the rights holders to provide and answer and that's what we're trying to do.

It comes down to an issue of cost. Imagine the amount of indivdual cases they would need to take to court and imagine the cost of each of those cases - they very rarely do take infringers to court based on this fact
Certainly there have been cases won in court when they are absolutely forced to but these are few and far between the amount of actual cases that have never reached the courts

Lots of court cases = less revenue for composers

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APRA: The standard of evidence that will be required will be extremely high - at least as high if not higher that that would required by a civil or a criminal court.

That is patently ridiculous. The standard of evidence is nothing like what would be required in a court, where there would actually have to be some evidence, not just a sworn statement. Although in an actual court case, the court might be able to require me to submit to evidence gathering (looking on my computer for the offending file, for example) - but then again, they may not. Section 92a certainly offers no such provisions.

As far as I know there is no requirement for the accuser to demonstrate the efficacy of the means by which they detect the infringement, or the accuracy of the information it gathers and reports.

I can say "no, you're wrong" and that is the end of it. No actual evidence is presented by (or even really available to) the accuser - the best they can do is say "we declare that our torrent detection software saw this IP address connected to the tracker at this time" - which is not proof for a variety of reasons.

I also wonder, by the law, at what point an infringement has taken place? Taking bit-torrent for example, the whole file is obtained from multiple sources out of sequence, until it is complete the data retrieved is incomplete and unusable. If a transfer is stopped at 90%, and the file remains unusable (as it most likely would) is that still an infringement? Basically is connecting to a peer and receiving part of a file, are you infringing - because that is various copyright watchdogs monitor.