Tech Liberty NZ Defending civil liberties in the digital age

Still guilt on accusation: Copyright and section 122MA

Posted on April 13, 2011

Section 122MA of the revised Copyright (Infringing File Sharing) Amendment Bill sets out an alarming presumption: an allegation is proof of wrong doing.

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.

Posted by Tech Liberty

Comments (5) Trackbacks (0)
  1. Hear hear, finally an article written by someone who has actually bothered to read the bill.

  2. Is downloading free stuff for personal use illegal or legal

    • It depends – are you downloading it with the permission of the person who owns the rights to it?

      If yes, it’s legal. If not, it’s still illegal – the law hasn’t changed that bit.

  3. The use of downloading free stuff from youtube etc is it legal or illegal

  4. Beneficial info and excellent design you got here! I want to thank you for sharing your ideas and putting the time into the stuff you publish! Great work!


Trackbacks are disabled.