One of the notable changes in the latest revisions of the Copyright (Infringing File Sharing) Bill is the addition of section 122MA. This section states that infringement notices issued by media companies against individuals are conclusive evidence to prove wrong-doing.
Some have interpreted this to mean guilt on accusation has made a return back into the bill, after S92A was suspended and finally defeated for doing the exact same thing. In response, it is claimed that this does not re-introduce guilt on accusation, but instead is based on the traffic ticket model, where guilt is presumed unless they are contested.
But traffic tickets are quite different to the claims made by media companies.
- Traffic tickets are issued by sworn police officers, or by automated systems that are held to rigorous standards. Media companies and their notice sending robots are not held to the same standards and have no statutory obligations or penalities for wrongful claims. The industry has resisted attempts to inspect their automated systems.
- Police are subject to oversight by their superiors, the Independent Police Complaints Authority and ultimately parliament and the public. They have a responsiblity to be impartial and to act in the public good. Media companies and their agents have no oversight at all and act purely in the interest of their own profits.
- Tickets issued by officers are unlikely to identify the wrong person, while automated systems have a number of checks and balances to ensure that only solid and provable tickets are issued. Media companies have already engaged in carpet-bombing users with claims that cannot be substantiated, and they rely on ISPs to always identify the correct account holder.
Google noted in their submission on S92A that 37% of the notices received under the DMCA were unable to be substantiated as valid copyright claims, and a whopping 57% were businesses targeting their rivals. Judge David Harvey noted in his submission on S92A that 30% of the copyright claims being heard in New Zealand failed to even establish a rightful copyright claim. Considering this error rate, surely we can't be proposing to accept untested claims from media companies as conclusive evidence?
We believe that 122MA is trying to allow the Copyright Tribunal to make rulings based "on the papers" where there is no contest being made about the claims. But rather than following a traffic ticket model - making any claim made by a media company conclusive proof - we believe the Tribunal already has sufficient scope and experience to make that determination itself. This is similar to how the Disputes Tribunal works and is a sensible model for handling copyright infringement claims.
Section 122MA should be removed in its entirety.