We succeeded in getting a delay in implementation of the Guilt Upon Accusation law Section 92A but now we're in the situation where most artists, businesses, schools, libraries, and many homes are now deemed Internet Providers and may be affected by a law without being represented in the decision-making process. (read media release)

We've blacked out our websites against this law and now we're looking straight at the camera, introducing the people that this law will affect. S92A cannot be implemented because it's incomplete, unfair, excessive, and unsubtle – we call for it to be repealed and replaced with a common-sense alternative.

Have Your Say

We want to hear your take on this law - how you see it affecting you in your daily life – so we're calling for everyone concerned with this law to speak up and make their thoughts known through the simplicity and accessibility of YouTube videos.

Video clips should be a few minutes long and posted to YouTube - with the tag "CFFNZ". Just remember to tell us about it too!

Please feel free to use our intro [XVID, 2MB] and outro [XVID, 2MB] videos.

We'll be linking to videos we have produced over the coming days to give you some ideas of what other people have been saying – stay tuned!

In the meantime, feel free to contact us if you have any questions.

S92A is STILL unworkable

S92A can't be implemented as written because it's incomplete, unfair as written, excessive, and unsubtle - so we want it to be repealed or permanently suspended. To be precise:

• The law puts everything to a code and the vast majority of people regulated by the law aren't represented at the negotiations on the code
• There's no qualified or trusted independent 3rd party to judge data forensics and copyright law, so decisions to takedown must be based either on allegation or prosecution. We want a Copyright Tribunal for this.
• Disconnection is a disproportionate punishment that hasn't been enforced by the courts in the past even in extreme cases of copyright infringement (case of Auckland Net Cafe's 2nd raid)
• Tens of thousands of network hardware devices (wireless/wired)are incapable of logging NAT data that would let "ISPs" identify the user responsible for an infringement.
• It doesn't distinguish between a thirteen year old's Harry Potter fanfic vs distributing thousands of movies illegally.

The Solution to S92A

The CFF have 3 goals for March 27th that'll involve repealing or permanently suspending S92A. This means continuing to educate the government and others about the problems with the law:

• GOAL 1. Begin The Process To Establish An Independent Adjudicator
• GOAL 2. Reduce ISP Scope to those capable of enforcing tracking
• GOAL 3. Change to a Notice-And-Notice model, rather than Notice-And-Takedown

GOAL 1. Establish An Independent Adjudicator:

The jurisdiction of the existing Copyright Tribunal should be changed so that we have qualified people judging cases of copyright infringement. The new Copyright Tribunal could have a range of sanctions, primarily fines rather than disconnection. Internet disconnection would be rare, and allowed for repeat egregious infringers only after they had been judged previously in the Copyright Tribunal. In practice the new Copyright Tribunal will need new data forensics skills.

GOAL 2: Reduce Classification of an "ISP" to those capable of enforcing tracking

This will immediately reduce the scope of ISP to those who can implement the logging necessary to corroborate any future evidence of copyright infringement. An appropriate analogy might be that most residential and small/medium businesses have phones that can't track individual users, and similarly most cheap NAT network devices are incapable of logging connection data for 6 months to build up the data necessary to corroborate evidence. In practice this means immediately reducing the scope of S92A to conventional commercial ISPs. This then puts the onus on Government to increase capability of enforcing the law (Eg. to phase in restrictions that new hardware sold in NZ that is capable of logging user traffic and reasses the scope of "ISP" after that).

GOAL 3. Change to a Notice-And-Notice model, rather than Notice-And-Takedown

Internet disconnection is a disproportionate remedy for the complainant that has been rarely chosen by the courts, even in extreme cases of copyright infringement. Fines backed by a Copyright Tribunal to resolve disputes would be more appropriate. Music Industry studies suggesting people prefer internet disconnection to fines did not consult businesses (many of whom depend on the internet as much as a phone line). This also works around the problem that the law doesn't distinguish between a copyright infringement of a thirteen year old's self-written Harry Potter story versus distributing thousands of movies illegally.

If we succeed in reaching these three goals a veritable disaster of a law will be avoided and instead New Zealand will lead the world in establishing a sensible, workable system for dealing with the problem of copyright infringement online. This will be a true victory for all who rely on the internet in any way in their lives.

Ten Problems with Section 92A

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 0. 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.

Icon credits to Matthew Holloway who built upon the Tango Project