Dear Sir/Madam,

The Minister of Commerce, Hon Simon Power, asked me to thank you for your email regarding section 92A of the Copyright Act 1994. Your concerns have been noted.

Section 92A allows for termination of accounts of repeat infringers in appropriate circumstances. A purpose of this provision is to provide an effective means for dealing with behaviour which clearly infringes copyright, recognising that this behaviour can be costly for New Zealand’s creative industries. This is especially important given recent technological developments which now make it easier for online copyright infringement to occur. This amendment is not intended to deprive law-abiding businesses or private users of access to the internet.

Some have interpreted this legislation to assume guilt upon accusation of copyright infringement. There are concerns that this could lead to the termination of an alleged infringer’s internet account without evidence or opportunity for a user to provide a defence. In order to clarify the operation of section 92A, a voluntary code of practice (the Code) is being developed by internet service providers (ISPs) in consultation with the public and copyright holders.

In brief, the Code will likely outline that in accordance with section 92A, a user will receive fair warning regarding an alleged infringement. The user will then have the opportunity to refute any or all of the alleged infringements. As a backstop, section 92A only allows for account termination in appropriate circumstances. It is unlikely that termination will be appropriate where an alleged infringement has been disputed.

Section 92A has been delayed from coming into force by one month until 27 March 2009. The purpose of this delay is to allow ISPs and rights-holders time to complete the joint development of the Code. If a voluntary code is developed and the new section is implemented, both will be reviewed within six months to see how they are working.

It is important that the Copyright Act achieves an appropriate balance between the interests of copyright creators, owners and users.

Thank you for taking the time to raise this with the Minister.

Yours sincerely,

David xxxx

Hi David, Simon, thanks for your letter regarding Section 92A,

The issue is that The TCF Code does not attempt to address 1) data forensics skills necessary to corroborate accusations, or 2) copyright law.

These are the practical necessities of implementing Section 92A and you will find no mention of how to approach (1) or (2) in the TCF code.

You will however find that it calls on thousands of untrained staff working in ISPs to evaluate (1) and (2). By "thousands" I'm referring to the new broad definition of an ISP which includes businesses, libraries, schools, universities, homes, non-profits, etc, all expected to understand whether data forensics and copyright law. Further the "ISPs" make this decision under the risk of being secondary copyright infringers themselves if they retain a staff member or customer while making an error in deciding (1) or (2).

As Prime Minister John Key said the internet can't be a lawless 'Wild West', which is why it's integral to have justice for the rights holders, justice for the accused, and due process but neither S92A nor the TCF code allow that. There is an alternative to S92A that will actually catch the bad guys and protect the innocent -- an independent adjudicator trained in (1) and (2) to resolve any disputes. As you will see below in '10 Issues With Section 92A' this alleviates many of the public concerns.

We would appreciate a meeting with Simon Power or one of his staff to discuss this in detail. The TCF code does not even attempt to deal with the practicalities of enforcement and I suggest that you check this out yourself with the TCF.

The following is just a cut-n-paste response detailing the current primary concerns with S92A. Thanks for your time.

Matthew Holloway
Co-Founder, Creative Freedom Foundation

10 Issues With Section 92A (S92A)

1. No Independent Qualified Adjudicator: There's no currently qualified or trusted independent 3rd party to judge (1) data forensics and (2) copyright law, so decisions must be based either on allegation or prosecution. Our positive solution to this is an extension in jurisdiction to the underutilised Copyright Tribunal (who currently handle only licensing disputes, of approximately one per year).

2. Unclear Legislation: People don't know how to obey the law because it's poorly drafted and vague. The heavyweight TCF policy was written by and for conventional ISPs and it is inappropriate for the majority of "ISPs" under the new broad definition that includes libraries, schools, businesses, many homes, hotels, etc.

3. Innocent People Framed: People can be easily framed for copyright infringement online, see http://dmca.cs.washington.edu/ . There are hundreds of Data Forensics experts in NZ that can tell the difference but expecting thousands of untrained businesses to do the same is impractical and ridiculous.

4. Impractical and Technically Unrealistic Demands: Tens of thousands of internet devices in New Zealand are incapable of storing who accessed what, at what time, making corroborating accusations impossible. It would be like expecting, come March 27th, for all New Zealanders to be able to track who used a phone within a household or a business. Most phones just don't have that capability, and most network devices don't have that capability. Accurately tracking copyright infringement is a noble goal to head towards but we're not there yet and therefore S92A is unrealistic and impractical. Government could amend the definition of an "ISP" to be instead a "CSP" (commercial service provider) which would reduce the scope to conventional ISPs like Xtra and Vodafone who are capable of tracking. They could then increase the scope of an "ISP" as internet hardware improves. In the meantime people can still be taken to court as they always could to resolve disputes (or possibly a Copyright Tribunal if that's established).

5. Business Compliance Costs: The business compliance costs of tracking (a practical necessity to corroborate future accusations) both in terms of buying tens of thousands of new hardware devices for the businesses now deemed "ISPs" have not been factored. Consumer-grade internet hardware devices capable of doing this cost approximately $750. We have been doing research on this and we may have some results early next week. It'll certainly be tens of thousands of "ISPs" who need to spend that kind of money... and then you need data forensics and copyright law knowledge to use that tracked information.


6. A Disproportionate Punishment: Internet disconnection is a disproportionate punishment that hasn't been enforced by the courts in the past, even in extreme cases of copyright infringement (repeat commercial infringers as judged in a court didn't get this punishment). Fines would be more appropriate and would protect businesses and home users. Music Industry studies suggesting people prefer internet disconnection to fines did not consult businesses or organisations (many of whom depend on the internet as much as a phone line). Further, the law doesn't distinguish between a copyright infringement such as a thirteen year old's self-written Harry Potter story (which if it uses the Harry Potter characters is copyright infringement) Vs. distributing thousands of movies illegally. Allowing fines would allow appropriate punishment.

7. Harms Respect For Copyright And Artists: Although perhaps noble in it's intent this law is corrosive to the public trust in copyright education that artists benefit from, and it risks undoing the social contract that underlies copyright; encouraging illegal downloads and taking money away from the creative sector. As artists we're being very clear to distance ourselves from those companies pushing for this law so that the public know who is responsible for future injustices. On the issue of S92A we represent 9037 artists, out of 18,146 people (and 90% of these are New Zealanders).

8. Business Risk: ISPs choose disconnection or connection under threat of being secondary copyright infringers themselves, or wrongfully terminating a customers contract. This is an unreasonable burden to place on thousands of businesses who are now deemed "ISPs". Thousands of untrained people cannot be experts at data forensics and copyright law.

9. Business Risk From Employees: For many businesses disconnecting a staff members internet may be like removing their phone line, effectively firing the employee. While inappropriate use of company services should result in dismissal there are obvious problems if the employer is unsure of the evidence, and associated risks in employment law.

10. Reverses the presumption of Innocence: S92A calls for punishment with internet disconnect without due process and without evidence judged by experts. The "courts" under S92A policies are thousands of untrained "ISPs" and they operate under the threat of either 1) being secondary copyright infringers themselves if they make a wrong decision on copyright or data forensics, or 2) contract or employment problems of disconnecting people without really knowing if anything wrong was actually done. Businesses are risk averse, and untrained people may decide on who is the bigger risk to them -- the accuser or the accused. In practice the accused doesn't get anything resembling due process and it's our opinion that most people will be considered guilty upon accusation.

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