These talks have included meetings with representatives from IPSafe (www.ipsafe.co.nz) and Datacom (www.datacom.co.nz). IP Safe's website is rather minimal and they have not responded to our queries. Their record at the Companies Office lists three directors, Chris Riddell, Wared Seger and Adel Shahin.
They also note that the Telecommunications Carriers Forum (TCF) submission about the law suggested that a centralised system run by the government would be the best approach, but this was not picked up by the Select Committee.
The MED goes on to say that they are not in the process of considering such a system and "that specific arrangements for the implementation of the Act are a matter for Internet Service Providers to agree on between themselves."
The questions have to be: why is Datacom involved and who are they working on behalf of? Who are IP Safe and what is their involvement?
[This article has been corrected. Please see explanatory note at the end.]
Liability under the new copyright law
One of the issues that we and many others have with the new copyright law is that it unfairly penalises people for the actions of others. You're either an IPAP (a very tight definition of ISP) or an account holder, and if you're an account holder you're liable for the actions of anyone using that internet account.
This means that hotels will be liable for the actions of their guests, universities for the actions of students, the person paying the bill will be liable for their flatmates, and you'd be better be careful about which of your guests you let use your internet while they visit your house.
Ministry of Economic Development advises differently
However, it seems that the Ministry of Economic Development has a different interpretation of the law. The owner of a homestay, concerned that as the account holder he would be liable for his guests, recently contacted the Ministry of Development.
The advice he received from the Ministry was that if he is providing internet services but does not meet the requirements to be an IPAP under section 122, then he must be an ISP and would be safe from liability according to section 92B.
Furthermore, if he received an infringement notice he just had to respond and say that he ran a homestay and that would be the end of it. As he observed, "What's to stop anyone claiming that their house is a homestay?"
We don't find this interpretation particularly convincing (nor did we find it convincing when the NZCS made a very similar argument in their submission (PDF) to the MED).
The intent of the Copyright (Infringing File Sharing) Act seems to be to catch everyone. If we accept the MED interpretation, the definition of ISP in the Copyright Act is so wide that anyone who shared their internet connection with another would thereby be able to claim immunity under it. The law would be fatally undermined.
While we think that this wouldn't be a bad thing, as it would remove liability from account holders who shared their internet and thus avoid the problem of punishing people for the actions of others, it seems clear that this is not the intention of the law makers.
Ultimately this argument will be tested at the Copyright Tribunal and possibly in court, but for now we caution against relying on this advice from the Ministry of Economic Dvelopment. This means that you should assume that the account holder will be liable for any infringing file sharing performed over their internet connection.
[Correction: The article as originally posted said that the advice was from the Ministry of Justice. The MoJ contacted us to deny giving advice to anyone. We followed up with our original source and managed to establish that the advice was actually from the Ministry of Economic Development. We apologise for the error.]
An update on the enforcement provisions of the Copyright (Infringing File Sharing) Act.
Where are the notices?
We've not received one notice in response to our request for copies of copyright infringement notices sent under the new law. From speaking to ISPs, it seems that very, very few notices have been received at all.
What are the rights holders doing?
Secondly, we heard some very interesting rumours about what the major rights holders organisations are doing. (Please note that this is rumour - but from a source that we trust.)
No one will be surprised to hear that the rights holders were very unhappy about the $25 per notice fee set in the regulations. NZFACT (NZ branch of the US MPAA) believes that they should be "just a matter of cents".
Indeed, we've been told that they're not going to be sending out any notices even though they heralded the law as a vital protection for their NZ$2.5 billion industry.
Instead they are talking to ISPs and offering to fund a centralised system for the management of the infringement notice process. This is obviously with the aim of making it much cheaper for the ISPs, so that they can go back to the Ministry of Economic Development to get the per notice fee reduced at the six-monthly review.
This raises a number of questions:
- How will the centralised notice system work?
- Who will have access to the system and under what terms? Is it just for the major rights holders or will it be open to everyone?
- It will be necessary for any system to have some account holder details included (for matching purposes) - who will have access to this information? Won't this circumvent the law's careful approach to maintaining account holder privacy?
- And finally, what's in it for the ISPs?
If you know anything about this proposal we'd love to hear more.
September 1st is the start of the new copyright regime, where rights-holders can send infringment notices to people they accuse of infringing their copyright.
We would like copies of those notices. This will allow us to help monitor how the law is being used, including:
- assessing the quality of the notices
- finding out who is sending them and for what sort of works
- help us detect anyone abusing the system
Please email your notices to email@example.com. Feel free to include other information including whether you deny the allegation or not. We promise to keep your name and other identifying details private.
Welcome to the new world of the Copyright (Infringing File Sharing) Act.
This is the law that:
- Makes internet account holders liable for the actions of others, even when there is no reasonable expectation that they could control their behaviour.
- Will make it very hard for anyone, including universities, libraries, motels and cafes, to offer internet access to their patrons as they can't risk penalties of up to $15,000.
- Can fine people for downloading material that isn't even available for purchase in New Zealand.
- Takes away the right to be assumed innocent until proven guilty, by assuming that complainants are telling the truth, leaving people having to prove that they didn't do something.
While the law comes into effect on September 1st, notices can be sent for activity up to 21 days earlier. This means that you could get a notice for any activity from August 11th onwards - today.
The law is meant to be aimed at people infringing copyright by downloading material without permission over peer to peer (P2P) file sharing - BitTorrent, eDonkey, etc. However it is written in such a way that it might be possible to use it for other forms of online infringement such as downloading from websites or watching streaming video. We'll be testing that further from September 1st.
Who is at risk?
The person whose name is on the internet account. They're liable for the actions of all people who use that internet account.
What can I do to protect myself?
If you're the account holder, make sure you know what everyone who uses your internet is doing. Don't let people use your account if you don't trust them not to download infringing material via file-sharing.
- Our article, What you need to know about the new copyright law.
- Flowcharts showing the processes included in the law (thanks to the TCF).
- Think you can become an ISP/IPAP and thereby pass your liability on to your users? Our article explains why you probably can't.
- 13 reasons why the Infringing File Sharing Act is bad for you by Christopher Wood.
- 3 Strikes NZ website about the new law.
- Information from the Ministry of Economic Development.
- The text of the law.
As is often the case with new laws there is not always a clear understanding of how it will be applied when it gets to real cases in court. Previously we've talked about the definition of an IPAP in the Copyright (Infringing File Sharing) Act, and now we're going to look into the definition of "file sharing".
The text of the Act defines "file sharing" in Section 122A(1) as:
file sharing is where—
- “(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and
- “(b) uploading and downloading may, but need not, occur at the same time
Much of the Internet is designed in a way that content is simultaneously shared between multiple users, so does the new law apply only to peer to peer (P2P) filesharing or does it apply to any kind of sharing of content between people?
InternetNZ put this question to the Ministry of Economic Development who responded that by their interpretation it only covers P2P sharing. While this is useful, the view of the MED is not the only one taken into account by the courts.
Hansard, the official record of Parliament, is also used as a reference when courts need to understand the intent of a piece of legislation. The question of what is included was asked during the debate for the second reading of the bill:
JACINDA ARDERN: I would like to request the Minister, given that Hansard will be used as a record going forward in the way that this billis applied in practical terms, to give the Committee his view of the definition of “file sharing”, how he sees that definition being applied once this legislation is enacted and becomes law. For instance, does he believe that it includes an attachment to an email? How far does his view of this definition go? I think clarification from the Ministerwould be helpful for this debate.
Speaking for the Government, Hon Dr Nick Smith replied:
Hon Dr NICK SMITH (Minister for the Environment): I will also respond to the question from Jacinda Ardern about where in this bill the definition of file sharing is. It is quite simply set out in clause 7 of Part 1. That clause sets out quite clearly the definition of file sharing, and I further say that, yes, that definition does include an attachment that involves the sharing of files.
This appears to clearly state that the definition is not solely limited to P2P networks, but covers any method of sharing files, whether that be streaming, email, private or public locker sites, or any other method yet to be discovered.
Rick Shera has helpfully pointed out the following from the Select Committee's report:
We recommend that the definition of file sharing in section 122A(1) be amended by including reference to downloading or uploading material using networks or applications that allow material to be shared among multiple users. This would avoid inadvertently capturing activities such as emailing or downloading that did not involve file sharing; if such activities breached copyright, they would be actionable under existing provisions in the Copyright Act.
With MED believing one thing and the politicians who passed the law believing another, what is the truth of the matter? The answer is that we cannot know until it is tested in court (or clarified by a law change).
The Ministry of Economic Development has published the recommendations for regulations for the Copyright (Infringing File Sharing) Act. Some interesting points:
- The cost of making a complaint will be $25 (rights-holders argued for $2, ISPs for higher). This is to be reviewed after 6 months. (Minister recommended $20, Cabinet raised it to $25.)
- The paper recognises that this fee will not allow for full cost-recovery by the IPAPs and will therefore push up internet costs for subscribers (point 25 on page 7).
- Rights-holders can appoint an agent to act on their behalf to send notices.
- Rights-holders must use any automated system provided by an IPAP (ISP) to receive notices.
- Complaints from rights-holders must be signed and include a statement that, to the best of their knowledge, the information given is correct. Whether this will be enough to limit false accusations is unknown.
- Complaints must include the name of the work, the protocol being used and the NZ time/date.
- Notices passed on to account holders must include all of the information submitted by the rights-holder. (This is important to give people a chance to defend themselves.)
- Rights-holders will pay $200 to take a complaint to the Copyright Tribunal.
- The Copyright Tribunal has discretion to set penalties up to $15k as it sees fit, based on the cost of the material and any aggravating factors.
Parliament has passed the Copyright (Infringing File Sharing) Act.
Here's 10 things that you need to know about it:
- What: Infringing file sharing is the act of downloading or uploading copyrighted content without permission. This can apply to any content, e.g. movies, TV shows, music, pictures, books, games or software.
- When. The new law comes into effect from September 1st 2011. You can receive a notice for infringing file sharing that took place from any time from August 10th (21 days before Sept 1st). Mobile phones are excluded until 30 September 2013.
- Who. The account holder (the person who pays for the internet conection) is the one who is legally responsible for any infringing file sharing occurring over that connection. You are not legally liable if you use someone else's internet connection, although they won't be very happy about it and may be able to come after you.
- Getting caught. You are most likely to get caught if you use peer-to-peer file-sharing software (e.g. BitTorrent, emule, etc). This is because peer to peer works by you sharing the file with a whole lot of other people - if one of them works for the copyright-holders they can get enough information to make a complaint.
- Not getting caught. You are not likely to get caught if you copy files from friends, download from file-sharing websites (that don't use torrent software), or watch videos on YouTube or similar sites.
- Notices. If caught infringing, you will initially receive a Detection Notice, followed by a Warning Notice, then an Enforcement Notice. There must be at least three weeks between notices. (Each copyright-holder making complaints will follow the same progression - you could have a Warning Notice from one and a Detection Notice from another).
- Challenging notices. You can respond with a challenge to any notice. The copyright-holder gets to decide whether your challenge will be accepted or not. There are no agreed grounds for challenges yet.
- Personal details. The copyright-holder will not be given your name, address and other contact details. All communication is handled by your internet provider.
- Copyright Tribunal. Once you have received an Enforcement Notice the matter will go to the Copyright Tribunal. They can levy of a penalty of up to $15,000 that has to be paid to the copyright-holder. They will normally make decisions based on written submissions, but either party can request a hearing. Lawyers are not allowed at the hearing.
- Account suspension. The provision in the law allowing for an internet account to be cut-off is currently suspended.