Sam Fickling sent us a copy of his letter to the Commerce Minister, Simon Power, about the proposed changes to the Copyright (Infringing File Sharing Amendment) Bill. He has kindly given us permission to publish it here.
Once again I believe that, for the most part, the ongoing modifications to the Copyright (Infringing File Sharing) Amendment Bill are improving the legislation and building a fair and workable framework with which to protect both rights holders and Internet users. However, the recent recommendation by the Commerce Committee to insert section 122MA into the bill has unfortunately brought the debate around this legislation back to where it started.
Originally, the main objection I, and many other individuals and organisations, had against the Copyright (Infringing File Sharing) Amendment Bill was the concept of 'guilt upon accusation'. While this concept had been removed from more recent drafts of the bill, it has made a return with section 122MA. I must re-iterate my original objections to the concept of 'guilt upon accusation' and the fact that this is in complete contradiction to the established laws and legal principles of New Zealand where accused parties are innocent until proven guilty! Furthermore, in established legal principles, the burden of proof lies with the accuser and this should most certainly not be reversed "in recognition of uncertainty about findings of copyright infringement"!
In addition, I believe that there is no provision in the bill that guarantees that another established principal of law is upheld; that the accused party is entitled to see the evidence against them, thus providing the opportunity to defend themselves against the charges. For this bill to be fair to an accused party, they should be entitled to see any and all evidence which has been presented against them.
I am also disturbed by the general spirit of the Commerce Committee's comments around section 122MA. When it comes to legal proceedings, there should be no 'fast-track' (otherwise known as cutting corners) to benefit any individual or organisation, all parties should be treated equally and justly; the law must be impartial and favour no one party over another!
Also, while I am somewhat encouraged by the Commerce Committee's recommendation for the addition of section 122PA, where the bill's Internet account suspension provisions would be not immediately brought into effect, I am still opposed to the inclusion of Internet account suspension at all and once again renew my call for it's complete removal for the following reasons:
- For the majority of homes, businesses and other organisations in New Zealand it is highly likely that multiple people will access the Internet via a single connection / ISP account which is the legal responsibility of one person / entity.
- If a single person / entity is to be held legally responsible for the actions of others, it is not reasonable to expect this person to be aware of all Internet activity by all parties using the shared connection as it is neither fair, or even technologically feasible short of incurring excessive expense to do so, especially for personal Internet connections.
- There are a number of situations where unauthorised use of an Internet connection can occur without the knowledge of the account holder. The account holder should not be held legally responsible in these cases.
- Internet access is now a necessity for modern living and it's suspension should not be used as a deterrent.
- While I do not support it for the same reasons that I have listed above, the Commerce Committee has recommended that punitive damages be included in any awards to copyright holders. Should this recommendation be included in the bill, it will be more than sufficient as a deterrent and should be used as a substitute for Internet account suspension.
With Internet account suspension included, this amendment would seriously affect the viability of shared Internet connections and potentially expose innocent parties to unjust and unfair punishment due to the actions of others, over which the responsible party has no knowledge or control. In light of this, in situations where multiple parties are accessing the Internet via a single connection, this amendment should either not apply or other concessions should be provided in order to remove from, or dramatically reduce, the legal burden on a single, potentially innocent, party.
Sam Fickling is an Auckland-based Senior Systems Engineer, avid Internet user and consumer digital rights proponent.