Green Party MP Keith Locke says that using such equipment is illegal as they are banned by the Aviation Crimes Act.

with respect to a person searched under subsection (1), a member of the police, an aviation officer, a Customs officer, or an agent of the carrier authorised by the carrier for the purpose may not use an aid or device that produces an unclothed image of the person.

We also had concerns about both the desirability and legality of this body scanning technology and wrote to the Minister of Customs, Maurice Williamson, earlier this year expressing our concerns. He responded (PDF) that while it was illegal to use body scanners for the purposes of aviation security, it was allowed under the Customs and Excise Act 1996 for the purpose of searching for contraband.

However, Keith Locke responds that the language used when the Aviation Crimes Act was amended in 2007 very clearly showed that Parliament's intention was to "...prevent any production of an unclothed image ... there was no hint of any exception."

Maurice Williamson says that he is not aware of any plans to further amend the Aviation Crimes Act.

While many have made the comparison to traffic tickets (where guilt is assumed but can be challenged), we pointed out in an earlier article why this is unreasonable, with Police and media companies being held to very different standards of behaviour.

The law, to be passed under urgency today, has been modified but how much difference does this make? Compare the two versions:

The original

122MA Infringement notice as evidence of copyright infringement

(1) In proceedings before the Tribunal, an infringement notice is conclusive evidence of the following:
(a) that each incidence of file sharing identified in the notice constituted an infringement of the right owner's copyright in the work identified:
(b) that the information recorded in the infringement notice is correct:
(c) that the infringement notice was issued in accordance with this Act.
(2) An account holder may submit evidence, or give reasons, that show that any 1 or more of the presumptions in subsection (1) do not apply with respect to any particular infringement identified in an infringement notice.
(3) If an account holder submits evidence or gives reasons as referred to in subsection (2), the rights owner must satisfy the Tribunal that the particular presumption or presumptions are correct.

The version as modified by the Supplementary Order Paper

122MA Infringement notice as evidence of copyright infringement
(1) In proceedings before the Tribunal, in relation to an infringement notice, it is presumed:
(a) that each incidence of file sharing identified in the notice constituted an infringement of the right owner's copyright in the work identified;
(b) that the information recorded in the infringement notice is correct;
(c) that the infringement notice was issued in accordance with this Act.
(2) An account holder may submit evidence that, or give reasons why, any 1 or more of the presumptions in subsection (1) do not apply with respect to any particular infringement identified in an infringement notice.
(3) If an account holder submits evidence or gives reasons as referred to in subsection (2), the rights owner must satisfy the Tribunal that, in relation to the relevant infringement or notice, the particular presumption or presumptions are correct.

What do these changes mean?

While the accusation of the rights holder was originally "conclusive evidence", it is now merely "presumed" to be correct. This seems to be a semantic quibble rather than a serious change.

The account holder will still only be able to challenge the accusations by giving evidence or having reasons. It is obvious that this will have to be more than just a straight "I didn't do it" denial. Proving that you didn't do something will not be easy and reverses one of the basic principles of our legal system, that the accuser has to prove their case.

We already know that rights holders get their accusations wrong time and time again, so the idea that our law will legislate their correctness is deeply disturbing.

Computers aren't people

Furthermore, there is a serious flaw in the assumption that all computer-related law is based on: the actions of a computer are always the actions of the owner of the machine. This law goes even further, making the person or company who pays for the internet account responsible for the actions of every person and computer that uses that account.

Anyone who has seen the effect of viruses, trojans, social engineering, drive-by downloads, and other attacks on users of the Internet would be hard pressed to say, with absolute certainty, than the data leaving and entering your computer could only happen as a result of your deliberate actions. It's not even true you can claim that you have knowledge of every file - how many people actually know the contents of every single file on the laptop?

This law, to be passed under urgency today, still has this exact same problem. Despite the lack of any provable link between a person and a computer, or a person and an internet account, we will still be assuming that the account holder is liable. And section 122MA means that they will be liable even if the accusations against them are faulty or not sufficiently proven.

Conclusion

So, what does this mean for the average person?

1. The person who is listed as the owner of your internet account will be responsible for the actions of everyone who uses that account.
2. If a content company accuses someone, the tribunal will accept that accusation as true unless the account holder can prove that the accusation is false. This reverses the normal burden of proof.

And, when the suspension of internet accounts is lifted (the provision is included but 'on hold'), if you can't prove your innocence your internet will be cut off, something we find totally unacceptable.

The following notes were made at the session. They give a general idea of what was discussed but should not be taken as definitive or complete.

Notes from InternetNZ - Name Suppression
3 February 2011

Introduction from Jordan Carter

Part of a trend towards turning ISPs from neutral conduits to Internet Police.

• copyright, filtering, now suppression

================================

Warren Young - the Law Commission view

Here to listen and learn.

Commission's recommendations from the report have been largely picked up by the bill.

Current regime - things are left up to the courts. Case law has been developed over time. The provisions have largely picked up on those conventions.

Differences between the bill and the report:

• bill includes automatic suppression of the names of child (under 18) victims and witnesses.
• bill provides for registrars to be able to grant interim suppression (once, for up to 28 days, if parties agree). Basically a pragmatic change.
• bill wants to codify the right of media to have standing to speak to name suppression (clause 214)
• bill includes that a person is well known is not grounds for suppression
• report said offence if ISP knew, bill says knew or has reason to believe

Name suppression in relation to the accused

• case law says it should be the exception, must be strong factors to be granted
• bill says "extreme hardship". A very high bar, higher than the current test.
• Warren continues to be astonished that the media says that the effect of the provision will make it harder for celebrities to get name suppression. His perception is that it's always been hard. But it will still be easier for celebrities to get name suppression than other people because if you're well known, extreme hardship is more likely.

Offence Provision

• has been tightened from text of report
• claims better definition of ISP
• taken from Copyright Act 2008

Rick Shera - A Legal Analysis

Section 216 (ISP) assumes that someone has breached the order and published it. But then quotes a Court of Appeal ruling that says that once the information is out there, there's no point continuing with suppression. It's shutting the stable door after the horse has bolted. It's futile - and futility is taken into account by the courts.

The Global Internet - but of course they managed to get Slater.

The Lewis case - US billionaire caught with marijuana. Suppression failed miserably.

ISPs ask "Why are you making us liable? We don't know anything about it."

Makes comment that there is no precedent for this anywhere in the world.

What is an ISP?

• the problem is that nearly everyone is an ISP
• universities, libraries, businesses...
• catches multiple ISPs (information passes through a chain of them)

(Note: Rick might be a bit off track here, current definition tries to only include content hosting ISPs, not transmitting ISPs.)

How does an ISP know?

• reason to believe vs actual knowledge (lacks mens rea - guilty intent)
• media already have difficulty working out what is suppressed
• contrary to LawCom report (and Cabinet approval of report) that said that ISPs must *know*, not just believe

Notification

• need official notification to prevent bogus use (chilling effect)
• already seen in the copyright arena - bogus notices from non rights holders with ulterior motive
• ISP has to take it down or risk being found liable
• if you don't get suppression - why not just send a bogus takedown notice?
• no punishment for lying

National Register might help

• ISP can go check
• who has access to this register? Obviously it must be very wide if everyone is going to be an ISP?
• interesting Scottish example - general public has access
• what if the order is lifted or varied - do they have to monitor it all the time and hide/unhide things?

Knowledge of Breach

• media can choose to publish or not
• ISPs can't make that decision - how do they know it's being published?
• DPI is unworkable - rights and technical issues
• keyword searching is also unworkable - "John Smith"
• coded or obscured material - detection can't be automated

Solution

• Delete section 216

If it remains

• official notices of details and location (ala DMCA notices)
• by analogy to interception regime
• no liability for ISPs
• cost recovery?

Question from Colin Jackson
Q. Did you just say that this could be used to force a newspaper's ISP to remove articles from their online copies?

A. Yes. But this law would say that the newspaper is an ISP. So you send it to Chorus, the ISP, the paper, etc... one of them should take it down.

Question from Stephen Price

Q. Mightn't there still be a very large unknowing public if suppression is granted?
A. Possibly. But doesn't think it will last as social media grows.

Question from David Farrar
Q. Clarifying various points.
A. Rick confirms that he doesn't want ISPs liable at all. Doesn't agree with the "safe harbour" idea where the law kindly grants immunity but is really making them liable.

Comment from Warren Young
Intention to only capture hosting ISPs, not transmitting ISPs. Believes it has achieved this and bill has both definitions, Rick agrees that this might be the case.

Judge David Harvey - A Judicial Perspective

Says he was the judge who:

• suppressed the name of Peter Lewis
• fined Cameron Slater.
• granted interim suppression to Martin Devlin

Two issues he wants to talk about

• name suppression and a fair trial
• ISP involvement

Name suppression and a fair trial

• part of a bigger context - media access to court proceedings
• not just suppression but cameras in court, access to court files, general reporting of court proceedings, tweeting in court, blogging while proceedings in progress

Cl. 214

• what about para-journalists such as bloggers, tweeters, etc.
• Does a Tweet to your friends cover publication?
• digital media - very little limit on who can contribute

Continued availability of information

• information published on the Internet doesn't die. It'll be cached or copied (wayback machine, google cache)
• and then it's searchable
• information is readily available and is fresh and clear, not a faded memory

The Googling Juror

• has problems for fair trial
• mentioned the problem of jurors not just googling for facts, but also the law
• e.g. an NZ jury getting a definition of "beyond reasonable doubt" from a US website. Where it's different.
• role for judge in educating jurors about acceptable behaviour
• have to assume that jurors will Google
• we now have an assumption that we can find things out when we want
• many of us would be happy to ignore judicial directions

Talking about the example of the Underbelly program in Australia interfering with trials over there.
Quote of "a tainted trial is better than no trial at all" from some Aussie lawyer

Possible solutions (not recommended)

• ban suppression orders - basically give up.
• Recognise that perhaps the internet is fundamentally changing the nature of the jury trial with reference to information and impartiality.

Alternative trial models

• mix of professional and lay adjudicators
• judge alone trials (already heading in that direction)
• a range of other possible options - delay, challenge for cause, move the trial venue, etc, etc

ISP involvement

• law seems to be based on section 92c of Copyright Act
• concerned about special definition of ISP and prefers "internet content host"
• believes that specific knowledge of the breach should be required to attract liability
• obviously ISP still being required to make judgement calls - he doesn't like that

Alternative scenario

• liability should only kick after people are notified they're in breach and continue

Other issues

• ISPs need standing if they are being treated as media
• but even if they remove it, it still doesn't vanish - caching, offshore, archived

Conclusion - the proposal may require further thought

Question from Hamish MacEwan
Q. It's not media access to courts we need to worry about but public access to courts.
A. Judge Harvey notes that all citizens can go into the court and that the media are the surrogates of the public

Questions from Stephen Price
Q. Why shouldn't bloggers have the right to challenge suppression orders?
A. Whole machinery of justice will grind to a halt! His inner anarchist says "Let's go! Agrees that the current bill doesn't recognise this reality that bloggers will be liable but won't have standing.

Q. To what extent might ISPs be liable as publishers under the current law?
A. Thinks that they aren't liable - they're a conduit.
Rick Shera comments that most countries worldwide don't hold ISPs liable for content.

Other questions
Q. More work with juries and testing what they know to get an "impartial" jury?
A. Here a jury can be empanelled in 20 minutes, in the US it can take up to 3 weeks.

Q. Sequestering juries as a solution to the research problem
A. We just got rid of that! Can still do it, but seen as inappropriate and a gross imposition on jurors. Also pointless if we let them have phones and so on.

Tim Pankhurst - A Media Perspective

Newspaper Publisher's Association

Declares himself to be a simple journalist, not used to the deviousness of the law.

Started with some anecdotal history

• Talking about other media people over the years who have had their names suppressed. Did they deserve to have their names published? Yes.
• Used to read the Nelson paper's wednesday summary of *every* court case from the region.
• Publishing all drink-drive convictions in an attempt to name and shame. Including his own family member. Only complaint was from a young man who wanted to know why his brother wasn't on it.

Obviously in favour of publishing names. As for celebrities - you can't just turn off publicity when it suits.

Judges and politicians making "analogue decisions in a digital age"

Public needs access to courts. Open justice is an important check on judicial fairness and competence. Talking about the damage to the reputation of the Family Court from its secrecy.

They appreciate that the media will have standing to challenge suppression.

Notes that fines have gone up - with this increased risk, surely they need a way to find out what has been suppressed. South Australia has a register.

Extreme hardship - does this just mean "A sick grandmother or an All Black connection"?

Unsure about automatic suppression in some cases such as sexual assault - issues around notifying society about what's happening and possible threats. e.g. notifying people of Graham Capill's wrongdoings.

Likes "real risk of prejudice" as a higher test for granting a suppression order, judges are often too cautious with suppression orders.

Administration of suppression is a shambles.

Very hard to recall information once it has been published.

Basically saying that there's very little point in suppressing names of well-known offenders in the digital age.

Prepared to accept increased fines if:

• Want courts to go after online people as much as they go after conventional media.
• Also need a register of suppression orders. They don't deliberately breach suppression orders.

Talking about access to register. Suggest only editors. Could be tied into official notices.

Question from Steven Bell
Q. What's the difference between commentators/bloggers and mainstream media? Shouldn't they then have similar standing in courts and access to a putative register?

A. It's a vexed question

Comment from Warren Young
Interim suppression - defendant doesn't have a lawyer, isn't ready to present evidence in favour of suppression. The Bill makes it easier to get suppression on first appearance - that only lasts until next appearance.

Response from questioner - this has led to people always asking for it, even though they know they'll never get it in the long term. The media then moves on to other topics before suppression is lifted.

David Farrar - The Blogger's View

Mentions his faux pas at R v Internet... hadn't quite cleaned up the screenshot enough and accidentally revealed a suppressed name.

We love gossip. Internet makes gossip work better.

Police v Slater confirms that the law applies to the Internet. Also shows that bloggers are being caught.

But what about TVNZ and the Singh electoral fraud case? They zoomed into a billboard until his head was framed. Why didn't the courts go after them?

The idea of nzsuppressionorders.blogspot.com - no need to register a real name or anything. Google will ignore NZ court orders. Take 10 minutes to set up and suddenly there's a go-to site for breaking all suppression orders.

Challenges for a blog owner

• finding out if there is an order?
• he blogged the Singh arrest based on a eye witness account
• how could he find out if the name was suppressed? Ended up calling a reporter and asking, who then checked with the newsroom, who confirmed that the name was suppressed.
• and what is in the order?
• tells about an inadvertent breach he made through speculation in John Dewar case
• suppressed orders lead to online speculation
• does the blog owner only delete the *correct* guesses made by blog commenters?

Makes an important point that media need advanced warning as they can't unpublish the newspaper, bloggers can edit on the fly.

What about breaches by referral? The differences between:

• link to the page on Whaleoil?
• or a link to Whaleoil front page?
• or a comment that "he's broken another one"
• or a reference to a "notorious blog"

Not always clear when a commenter has breached

• puzzles, initialisms, cunning constructions
• "An interesting name"

S202(2)

• Note that reporters are not subject to Press Council - rather the publishers are.
• What about when you're a blogger and a member of the media? (Like David is)
• Obviously if he's liable, he needs access to the same standing and so on.
• 202(2)b - Don't leave it to the court - but have a central list of "other media".

s215

• breaches of suppression orders from s205, s207, s208 (child sex crimes and so on)
• 6 months jail seems a bit much, especially with the other problems involved

s216

• thinks he is an ISP by that definition
• has had lots of people try to get material taken off his blog by falesly claiming copyright, suppression, privacy, etc.
• notifications should be from someone with a duty to tell truth (e.g. court officers) not just random people.
• needs better notification than "your blog is in breach" - at a minimum the URL of the page.

s216(4)

• is well intentioned to notify the user that something has been taken down.
• but does it work for commenters on blogs? He doesn't know who the anonymous commenters are.
• is replacing the comment with "comment deleted" adequate notice?

Summary

• Agrees with the law but thinks it will be ineffective, especially for cases of public interest
• Definition of media is far too narrow (referenced LawCom's "new media" project)
• Need a register so that people can work out
• Need to be explicit about who can notify and what constitutes notification

Question from Warren Young
Q. 202(2)b - who would compile the list of "other media"?
A. Suggests Ministry of Justice

Question from Trademe person (25k comments a day on their forums)
Q. Trademe are obviously not media, will they get access to this putative register?
A.Response - obviously they will need access. So will others, on a case by case basis.

Comment from Judge Harvey

Q. Judge Harvey suggests changing it to strict liability for people who knowingly do it. People with no access to this notional register will suffer from not knowing what is suppressed.
A. Farrar responds that he sees he has a duty to do proactive monitoring as much as he reasonably can. Making it strict liability would remove this duty.

General Discussion

Steven Bell - The idea of a register of anonymous information "case x, defendant name suppressed"

• DPF responds, tends to be less precise and not as useful.
• Warren Young says it's impractical - might be tens of cases of assault in Auckland on a monday morning.

Debbie Monahan

• Should go after the offenders, not the intermediaries

Thomas Beagle

• Asks how many people in the room think we can come up with a fair and workable scheme for suppression. About 5 or 6 of 35 people put their hands up.

What I learned today in school The Trans Pacific Partnership Auckland Round IV Stakeholders briefing:

It was truly unfortunate that due to scheduling conflicts, the meeting to tell us that we can't be told anything of substance was moved to 2:15 pm, allowing only fifteen minutes for the lack of significant communication.

Today's meeting was better attended than yesterday's. No surprise, as this meeting was the less informative of the only two things on the menu of options for stakeholders today. The other stakeholder friendly happening was an interesting review by Bill Rosenberg of the NZ Council for Trade Unions on those provisions (many) of the TPPA (if history is truly a teacher) effecting (and possibly affecting) labour.

This begs the question, and a scary one it is, that, assuming TPPA got passed, would the very fact of *allowing* labour rights in a member nation possibly be seen as a form of uncompetitive behaviour and thus an actionable offence?

Only those privileged who can see the sekrit text know for sure. If they just made the text public, we could sooner be relived of these niggling concerns.

Back to our fifteen, er, 11 minute meeting. 11 actually, as the first point of contention which lasted for those precious four minutes of our allotted time, is what time can they not tell us anything important tomorrow? Rest assured, our hosts are truly quite busy and finding 15 minutes to tell concerned New Zealanders, uh... well, not much, really takes precious time out of a busy day.

A one page document was circulated, mostly synopsising the topics that were being covered today. Just the names of the topics.

Of note:

• Horizontal issues aren't really under active negotiation yet and one gets the impression the various delegations are still defining the term.
• Of the issues listed on the magic (unclassified) document, progress varies. The room was nearly overwhelmed by this revelation.
• The Financial services text is (likely?) being based on the P4 text with the USA from 2008, updating it with inputs from the other countries, with a likelyhood of (sekrit) full text by the end of the week in terms of inputs from all TPP countries.
• After that, the tricksy bits start as there has to be functional convergence of the text (the editing of the Aegean stables). Officially, no report back, yet.
• There have (allegedly) been no changes to the financial services chapter due to the (alleged) World Financial Crisis. Current thoughts are that (or may be, if there are thoughts) that not constraining the (alleged) freedom to take econimic action to address urgencies or make regulatory changes (which a lot of govs do) is the best course for now.
• Please note that capital controls haven't been flagged as an issue, but our host is not following the detail of the financial services negotiation line by line.
• The (alleged) investments text has P4 text, again from the USA 2008 text. Alas, due to the need for secrecy stakeholders aren't allowed to know the state of play on each chapter. ISDS was part of the P4+ USA agenda.
• It is not clear if PTT is a spare P4 style or full USFTA style eventual document. Apparently, while there is reasonable commonality on substance, there is no telling precisely how aggressive the more litigious countries might be on developing painful, voluminous levels of detail and just what level of prescriptiveness can be indulged.
• There is no update to intellectual services yet, which is to day no advance in text over 2008. This is expected to change by Friday.
• Further, even the chapter structure is not tied down yet. It's by issue at the moment.

In fact, at this point we have no idea what the final (sekrit) document will look like. A thin volume of a thousand pages, a major tour-de-force of a million pages, a fourteen hour epic interpretation of USFTA done as interpretive dance? No one can even hazard a guess and it is up to those louder, more aggressive, more pedantic countries to call the shots. Sure, the basics (templates) are pretty standard stuff but some countries want severely stronger specificity.

That is all from Auckland, as there is no fancy soiree tonight. Not that the stakeholders know of, anyway....

Anne Galloway from the VUW School of Design presented the keynote speech - RFID (in)securities. RFID tags are the tiny bits of circuitry that nearby scanners can read - such as used in Snapper cards and passports.

She brought a social anthropology view of RFID to a conference full of hardcore geeks and was brave enough to start by defining "discourse" and how it is used to create understanding. She then discussed three popular discourses around RFID:

• RFID is awesome
• RFID is evil
• RFID is fun

RFID is Awesome

Typically the language used is about RFID being easy, convenient, efficient, reliable and secure. It often puts forward a utopian view of the future where the use of RFID-enabled tech means that old problems are removed (waiting in queues) and new possibities are enabled (tracking food from farm to plate). It's normally sold as "real cool amazing tech" with very little explanation of the technology involved.

RFID is evil

"It seems like an ID card but it's called a smart card." - "Brilliant, isn't it?"

In this discourse, RFID is a threat to personal privacy, to our health, and to our human dignity. There is the idea that corporations and governments will be tracking our every move and using that information against us. A lot of the imagery is apocalyptic (666, mark of the beast, four horsemen of the apocalypse) and apparently many people seem to think that the Nazis would have been very keen on it.

While many geeks find the idea intriguing, the general populace finds the idea of having an RFID tag in their body to be totally abhorrent. It's not just a fear of embedded tech - somehow it's much more offensive than a pacemaker.

RFID is fun

Anne talks about the appeal of RFID tags to the hacker mindset - using interesting technology to do interesting things. It's fun because it *can* be hacked.

Some websites:

• Mediamatic publish resources in how to hack RFID and organise events to show off what they've done.
• Nearfield create art projects that help visualise RF in our lives.
• Anne's own project, Counting Sheep:Wool in an Internet of Things, is an attempt help make people understand how RFID works in our world.

Summary

Some more points based on Anne's comments and questions from the audience:

• The idea, not specific to RFID but partly enabled by it, that we lose our citizenship as a human being and become a set of data records.
• The differences between our employers forcing us to use RFID tags compared to our government forcing us to do so. One is done to us, the other we do to ourselves (democratically). The two categories call for different arguments for and against them.
• Talking about how it's being done to us without our realising and without the chance for our input. Extremists might react, but most people know nothing about it.

What this hid from view was that if you weren't an IPAP, then you must be an account holder. And, as an account holder, you became liable for everything done through that account. In fact, it's easier to think about the implications of the bill this way:

Whoever is named as holding the last publically identifable address is liable for all infringement attributed to that address.

You can only escape this liability (and become an IPAP with all of their obligations) if you meet all of the following tests:

1. Provide any form of digital communications to someone else
2. Allocate an IP address to that person or organisation
3. Bill the person or organisation
4. Are primarily in the business of providing such services
5. Are providing your services to fixed users on a continual basis, not on a transient basis

Approaching it from this point of view makes it easier to see what obligations and exposures you have.

Who is liable?

A public library providing Internet access terminals fails to meet points 4 and 5. This means they are liable for all infringement by anyone who uses their terminals.

An airport that provides free wireless Internet access to passing travellers fails to meet points 3, 4 and 5. They are liable for any copyright infringement by anyone passing through the terminal using their wifi.

I have a server from a hosting provider to that I pay for. Since the hosting providers meets all of points 1 through 5, they have the obligations of an IPAP, and must forward notices to me. I am liable for any infringement made through my server, for example, after the server is hacked into and software installed on it without my knowledge.

If you share an internet connection with your flatmates and your name in on the account? You don't meet point 4, so you are liable for any infringement by your flatmates.

As the law is currently written, can any business or person risk giving Internet access to someone else?

First, the report of the Commerce Select Committee (PDF).

We found that the bill raised complex issues around the challenges faced by rights holders in an environment of rapidly-developing technologies, which are changing consumer expectations and behaviours. We have attempted to strike a balance between the rights of copyright holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.

Commerce Minister Simon Power announces that account suspension will be suspended:

The bill, as referred to the committee, included the power for a District Court to suspend an internet account for up to six months, in appropriate circumstances. The committee has recommended that this power be included in the Copyright Act - as foreshadowed by the Government - but not brought into force unless the notice process and the remedies in the Copyright Tribunal are ineffective.

Techday describes the new elements of the Bill:

The measures include ISPs sending warning notices to their customers informing them they have infringed copyright, and extending the jurisdiction of the Copyright Tribunal to provide a fast track, low cost process to hear illegal file sharing claims. The tribunal will be able to award penalties of up to $15,000 based on damages sustained by the copyright owner.

Another key recommendation is that the notice regime will not apply to cellular mobile networks until August 2013.

Blogger David Farrar wrote a good summary of the good and bad bits of the Bill, pointing out how far it has come since the original:

I'm especially pleased that they have effectively shelved for now the termination provisions, as I thought that would set a bad precedent.

He also noted the worrying inclusion of section 122MA:

Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof.

Organiser of the original Blackout, the Creative Freedom Foundation, is also concerned about section 122MA, pointing out the lack of penalties for false accusations:

Alarmingly, the report recommends a return to Guilt Upon Accusation. This is despite hundreds-of-thousands-of people protesting against such a law in last year's Internet Blackout campaign. Rather than the presumption of innocence, there is a presumption of guilt under section 122MA. This is exacerbated by the lack of any sanction for false or malicious accusations, making the process ripe for abuse.

Rick Shera comments at his LawGeekNZ blog, noting among other things:

The Committee has strongly indicated that Copyright Tribunal include a punitive element in any awards it makes up the $15,000 limit. In other words, monetary awards (which go to rights owners) are not intended to be merely compensatory but to punish as well.

In a follow-up article, Rick then goes on to give an in-depth analysis of the legal issues around the new section 122MA:

a provision that creates a presumption heavily favouring the rights owner. Section 122MA - without any warning, no public consultation and out of kilter with the balanced approach that has gradually developed.

He concludes:

Section 122MA should be deleted. A statutory presumption of guilt is out of place, is unnecessary and has the potential to unfairly prejudice innocent account holders.

At Tech Liberty we discussed the definition of IPAPs, the committee's attempt to better define what types of entities should be responsible for their users. Unfortunately we didn't come to any conclusion:

Note that the definition of IPAP in other regards isn't Internet-specific, just that it provides "digital communications" between places of the user's chosing. It is somewhat bizzare it's broad-based in one clause and extremely technology-specific in another.

LIANZA, the Library Association, is concerned that libraries will be unreasonably responsible for the actions of their users, with the Committee choosing not to provide an explicit exemption:

The Amendment Bill still fails to make an adequate distinction between "users" and "account holders", and does not fully recognise that an account holder such as a library may have many thousands of users of the Internet services which it makes available.

InternetNZ notes that while the new version of the Bill is better while still containing some problems:

The Committee has done good work in addressing some other issues that were present in the draft Bill. Among other things, they have clarified definitions of 'Internet Service Provider', 'file sharing' and 'copyright infringement'.

Other issues remain problematic: our suggestion that section 92C in the Copyright Act be replaced by the same notice procedure set out in this Bill has not been taken up, and the Bill still leaves account holders entirely responsible for another person's use of their account even where they have no control over them.

Finally, on the political front, Clare Curran of the Labour Party defends the compromise that led to Internet account suspension being left in the bill, but in a suspended state:

This compromise means that termination of Internet access as an ultimate penalty for repeat copyright infringement remains in the Bill, but cannot be enacted unless the Minister makes the decision to do so.

She then goes on to underline the importance of the Internet:

We believe that Internet access is fast becoming as necessary to us in our daily lives as the provision of electricity, water and the telephone. However Internet access is not just a utility but also enables the provision of social and family connections across distances and time zones, education and work opportunities.

Green MP Gareth Hughes agrees with the importance of the Internet but is more critical on the topic of suspension:

The Green Party asserts that there is a danger in heavy-handed regulation for a problem that may only be a temporary result of new technologies upsetting traditional business models. The use of fines rather than Internet suspension is a more appropriate sanction for file sharing, and the punishments should be proportionate to the crime.

Citizens are not denied the right to use their telephones because they happened to be used in the commission of a crime, and this legislation should not set any precedent. Access to the Internet has become a necessity in an era when more and more public and private services are only provided online.

Issues I’m concerned about include how trials can be prejudiced by information posted on websites and seen by jurors, real-time online streaming of court cases, breaches of court suppression orders, and re-publication of a libel.

He has asked the Law Commission to review whether current regulations are good enough. This is the same Law Commission that believes that ISPs (Internet Service Providers) should have a responsibility to close down websites and shutdown webservers if they are hosting material that might be in breach of a suppression order.

The report will focus on whether the two existing industry bodies, the Broadcasting Standards Authority and Press Council, could be used to regulate "new media", and whether existing criminal and civil remedies and penalties are appropriate.

These is no mention in the press release of the freedom of expression guaranteed to New Zealanders in the Bill of Rights Act. Nor is there any recognition that many forms of old media such as leaflets, posters and books are also unregulated.

An issues paper is expected by December 2012.

A recent article by Rob Weir does a good job of articulating what drives us. In How to Crush Dissent, he compares distributing information on the internet to the samizdat underground presses in the Eastern Bloc. He fears that our current anarchic level of information freedom could be temporary:

So, technology has not made dissent safer. We are merely fortunate that the political climes of 2010 permit more dissent. But if challenged, the powers that be have far greater tools to control information than they did in 1989. I am not certain the tools available to the individual come close to being able to withstand them.

He then talks about the importance of dissent, by which he means not just legally permitted free speech, but also the speech that is quickly banned in any totalitarian regime.

His fear is that as we move communication to the internet we are steadily developing the technological and legal tools - internet filtering, ISP tracking, laws against circumvention technology - that will give governments the ability to control what we do. His concern is that this will evolve until it is able to suppress dissent.

And I’m not an advocate of absolute free speech. There are copyright laws, there are privacy concerns, there are military secrets, there is child pornography. These all trump free speech. But I think that means that we make these activities illegal and vigorously prosecute those who break these laws. But we should be seeking the minimal technical means necessary to detect the violators, without introducing such technologies that, to the level of a mathematical certainty, eliminate the ability for these activities to take place. Because, if we do so, we also at the same time introduce mechanism that can be also used to crush political dissent.

At Tech Liberty we're not as pessimistic as Rob Weir but we think he is worrying about the right issues. It's important that we protect our traditional freedoms even as we modernise and update the ways we express them.

Initial letter from Buddle Findlay/Sky Television

Buddle Findlay

6 May 2010

Sky Network Television Limited
Unauthorised use of programme listings information

1. We act for Sky Network Television Limited ("SKY").

2. SKY is the owner or licensed user of the progrmme listings information for all programming that it broadcasts, as well as all of the names and logos associated with its channels (including the PRIME channel).

3. We have been informed that you are, through the "djkxml" application, which is downloadable from the website http://djkxml.oztheory.com and possibly through other means, providing to your users SKY programme listings information that you are not authorised to distribute to the public in New Zealand. If so, we believe this is a breach of:

(a) the Copyright Act 1994;
(b) the Trade Marks Act 2002; and
(c) the Fair Trading Act 1993.

4. Sky considers any breach of its intellectual property rights to be a very serious matter, and accordingly, if you are making the "djkxml" application vailable as described above we request that you immediately:

(a) remove the djkxml application (and any other infringing applications) from the http://djkxml.oztheory.com website and any other websites controlled by you, and refrain from assisting any other person to provide access to such applications;
(b) stop providing or helping others to provide, by any means or mechanism, unauthorised access to programme listings information;
(c) stop the unauthorised use, or assisting in the unauthorised use, of all trade marks owned by SKY and third parties;
(d) destroy or require the destruction of all documents, electronic files and information withing your control (including material held by third parties) that contain the infringing content referred to in (a) to (c) above; and
(e) confirm in writing to us that you have complied with, and will continue to comply with, the requiremens in paragraphcs (a) to (d) above.

5. Please provide the requested confirmations by close of business on Friday, 14 May 2010.

6. We look forward to receiving the requested confirmation from you and hope that this matter can be settled amicably. In the meantime, SKY reserves all its rights in relation to this matter.

7. We also reserve the right to inform your website host and other parties of your unauthorised use of SKY's listing information and trade marks.

8. We suggest you seek independent legal advice immediately.

Yours faithfully
Buddle Findlay

Philip Wood
Partner

Writing back

13th May 2010

Dear Philip Wood,

I acknowledge receipt of your letter of 6 May 2010 concerning the djkxml application and the http://djkxml.oztheory.com website.

I have no intention of breaching any New Zealand laws or of infringing Sky's legitimate intellectual property rights.

However, I do not believe that the djkxml application or the http://djkxml.oztheory.com website breach any New Zealand laws, nor do they infringe Sky's legitimate intellectual property rights.

Both the application and the website do not contain Sky programme listings or Sky trademarks.

I reject your claim that I am supplying Sky programme listings to anyone.

I also reject your claim that I am infringing Sky trademarks.

As your letter contains no specifics about how the tool or the website is breaching New Zealand law or Sky's intellectual property, I must now consider this matter closed.

Regards,

The lawyers respond

Thank you for your email.

In response to your query as to how your tool breaches New Zealand law, as you are aware, Sky's programme listings (even those available on third party websites) are protected by copyright. Therefore, any tool that enables its users to reproduce Sky (or Prime) programme listings in any format without Sky's permission will infringe that copyright. This rule applies, regardless of whether the programme itself contains infringing material, or if the programme merely enables users to access that infringing material themselves.

Accordingly, if your "djkxml" application or any of your websites contain information or tools that would help a user to reproduce Sky's electronic programme guide in any format, you may be liable for copyright infringement and Sky may have various remedies against you. Whilst you deny that you are providing programme listings to anyone, you or someone most certainly have advertised to the public that the djkxml application can do this (e.g. "new channels added for version 2.2.1 which are...Sky 1..." on http://forums.gbpvr.com//showthread.php?30586-Alternative-New-Zealand-XMLTV-listing-source/page4).

However, assuming that you continue to assert that your djkxml application cannot be used in the above manner, please provide us with the written confirmations requested in our letter of 6 May 2010.

We are continuing to monitor online abuses of intellectual property relating to Sky's programme listings and reserve all of Sky's rights (including the right to instigate legal proceedings for damages and or an injunction) in relation to this matter.

Sincerely,

Philip Wood
Partner

Second response

Dear Philip Wood,

Thank you for your reply and the explanation of why you believe the djkxml application breaches Sky's copyright.

I am now seeking advice on this matter and would like to clarify a few points to make sure we're not talking at cross-purposes.

1. If I understand correctly, your claim is that djkxml is in breach of Copyright Law because it lets someone access Sky listing
information on a website and save it as a file. Is this correct?

2. Your original letter said you believed the djkxml application also breached the Trademark Act 2002 and the Fair Trading Act 1993. Do you have any reason for this belief or do you wish to withdraw these claims?

I look forward to receiving your response so that we can move forward to a mutually satisfying resolution.

Regards,

The end

There was no further response from Sky or their lawyers.