New Media submission opposes media regulation
Tech Liberty made a submission to the Media Regulation review run by the Law Commission. The summary of our submission is as follows:
We recognise that "big media" still has a lot of influence in New Zealand but that this influence is declining as the internet gives people the ability to:
- self-publish ("little media")
- share and distribute self-published articles
- publicly critique the work of big media.
This change can be seen in the way that online media such as blogs used to be very reactive to work published in newspapers and TV, but now newspapers and TV are increasingly picking up stories from blogs and other forms of social media.
Much of the rest of the review was about how the media should be regulated but we believe that the need for greater media regulation has not been established.
Defining news media
The review suggests that regulation could be a trade-off for official recognition of news media, and spends a lot of time discussing who would be included in the definition of "news media". We believe any definition would either be so broad as to be useless or so narrow that it would miss out many people and publications that arguably should be covered. This is especially true as journalism continues to develop and change in the internet age.
Special privileges for news media
The review suggests that we need a definition because some laws refer to the news media to bestow special privileges. Our preference is that these privileges should be extended to all citizens (e.g. replace the media "fair dealing" section in the Copyright Act with a more general "fair dealing/fair use" provision for all people) or should be available to all people when they are acting as a journalist.
Furthermore, any organisation that wish to include/exclude "news media" can make their own determinations as to who that is rather then relying on a government mandated definition.
External regulation
We do not believe that there is a need for an external regulator. Indeed, as the internet gives people the means to publicly criticise the output of big media, the need for a regulator is reduced compared to the days when only a very limited number of media companies could get their views out (due to limited airwaves or the need to own a printing press).
Current regulation is also generally quite ineffectual. The original message still goes out and then any correction is ignored as the issue is no longer "news". Regulation tends to be after the fact score-keeping at best.
Any publishing company or journalist who wishes to be taken seriously has the ability to form a group and create their own code of ethics and regulator. The Press Council is an example of this and we do not see why other media groups who wish to be taken seriously could not do the same.
Finally, if there was a regulator our view was that it should be in the form of an Ombudsman with the ability to make morally rather than legally binding decisions.
Malicious speech online
The second part of the review was about harmful speech online.
We agreed that malicious speech online can be a problem just as it is when face to face Furthermore, the nature of the internet means that the malicious speech can both spread further and remain available longer.
We believe that the law is limited in what it can do about people being nasty to each other, either online or in person. Even if current law could deal with these issues, the international nature of the internet and the inevitable jurisdiction issues would mean that only a small proportion of problems could be resolved.
That said, many of the more contentious issues will be conducted by people who know each other well and probably even live in the same area. The law should be able to deal with issues of harassment using existing laws (possibly with the tweaks identified by the Commission to ensure that online communications are definitely covered).
We reject the idea that speech online should be held to a higher standard than any other form of speech.
We do support the creation of a new crime of "malicious online impersonation" with the caveat that it must be very careful not to include obvious cases of parody and other forms of non-serious impersonation.
No ISP responsibility
We oppose any attempt to make ISPs responsible for taking down or blocking information either hosted on their network or available through it. This is because ISPs typically have no visibility or control over the material that their customers might store on servers hosted with the ISP. Typically an ISP will only have one option - passing the request on to the publisher or turning off the entire site. Closing down an entire site would seem a gross over-reaction to the content of one offending post or comment.
It does seem appropriate to us that an ISP might have a responsibility to pass on a takedown message to the site owner (similar to the copyright legislation) or, upon presentation of a suitable court order, reveal the identity of the site owner so that legal action can be taken.
TPP Update
While ACTA gets all the attention in Europe, the governments involved in negotiating the Trans Pacific Partnership trade agreement are still charging ahead. There have been 10 major negotiating rounds as well as many inter-session meetings, with the countries involved aiming to get it finished before the end of 2012.
You can read more about the TPP treaty, or why we think it's flawed, but this update is based on what we've been reading and a briefing from NZ officials today.
Firstly, the negotiators now have a consolidated draft text that they are working through slowly. Apparently the intellectual property (IP) sections are the most contentious with a lot of major differences still to be resolved.
Secondly, the main IP alternatives are the US proposal (leaked here and similar to other recent trade deals signed by the US) that would see copyright laws become more restrictive, more punitive and less just, versus the NZ/Chile ideas (leaked draft papers) which are largely based on TRIPS and allow for more flexibility between countries and even include some protection for consumers rather than just large media companies.
Thirdly, the US proposed IP chapter goes even further than what they originally proposed for ACTA (which was substantially watered down during the negotiating process). It includes internet account termination, statutory or triple damages in civil suits, an extension of what would count as criminal copyright infringement, allowing copyright holders to ban parallel importing, and criminal penalties for circumventing copy protection measures even if you weren't breaching copyright. As is typical with these types of proposals, respect for the right to due process and a fair trial are sadly lacking.
Finally, the whole process is still very secretive with little information getting out. There is not intention to release any draft texts, and the countries involved have even agreed not to release details of negotiations until four years after the treaty is signed.
What you can do
There's still a long way to go in the TPP negotiating process and there's still room to demand a better treaty and a more open process. Write to your MP and make sure they're aware of what's happening and that you're not happy about it
Considering joining TPP Watch if you're opposed to the whole treaty, or on the IP front NZ Rise is doing good work on sticking up for our local IT industry while Creative Freedom Foundation NZ is defending the interests of local artists.
You can keep up with TPP news with the TPP Digest or by following Michael Geist, Knowledge Ecology International and Public Knowledge.
MegaUpload arrests in New Zealand
NZ police have arrested four people connected with MegaUpload.com in New Zealand today at the request of the US FBI. They have been charged in the US "with running an international organized criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works through Megaupload.com and other related sites". (FBI press release.)
Comment
We have little faith in the fairness and appropriateness of the US's laws and processes around copyright and intellectual property. The US government is continually strengthening its copyright laws at the behest of the entertainment industry (see SOPA and PIPA) and is trying to pass laws that we would not like to see copied in NZ.
Will this NZ police cooperation lead to New Zealanders being arrested and handed over to the US for doing things that may not be serious offences in New Zealand? Which other countries' laws do New Zealanders have to obey when using the internet?
Whether this case is an example of good international cooperation or the US demanding other countries help enforce bad law is yet to be determined. We will be monitoring this issue closely and hope to publish more information as it is available.
Media Links
- FBI charges seven with online piracy (Wall Street Journal)
- Megaupload's Kim Schmitz arrested in Auckland, site shut down (3news)
- File-sharing website Megaupload shut down, NZ-based founder arrested (PC World NZ)
- File-sharing kingpin arrested in New Zealand at US officials' request (NBR)
- 'We're not pirates, we're just providing shipping services to pirates' (Wall Street Journal Law Blog).
- Why the feds smashed Megaupload (Ars Technica).
- Megaupload attempting to get back online (Stuff NZ)
Useful Links
- The FBI press release.
- The indictment.
- Statement from the NZ Police.
- The NZ extradition treaty (PDF) with the US.
- Ministry of Foreign Affairs and Trade's information about extradition from New Zealand
- Yes, copyright infringement can be criminal in New Zealand with imprisonment up to five years.
- Damning quotes from the MegaUpload owner's email.
Requirements for valid copyright infringement notices
Recently we examined some of the first copyright infringement notices sent by Orcon and noticed that they did not comply with the regulations.
The omissions are significant and make it harder for the accounts holder to challenge the notice on the facts, but we believe there are excellent grounds for challenging the notice because the notice itself is invalid. The rights holders may or may not accept this but ultimately it will be up to the Copyright Tribunal to make the final decision.
Notice Requirements
So, what are the requirements for a valid infringement notice? They're spelt out in two places - the Copyright Act (mainly section 122) and the associated Copyright (Infringing File Sharing) Regulations. We'll only be looking at the requirements for the notices from the ISP (internet service provider) to the account holder (the person paying for the internet connection).
A detection notice must include:
Are some Copyright Infringement notices invalid?
One of the outstanding issues of the changes to the Copyright Act has been whether rights holders would issue notices that comply with the law. Since our regulations outline a number of detailed requirements for notices, rights holders cannot simply pass on whatever they send in other countries.
The first few issued notices are starting to leak out and it appears that they do not comply.
An Orcon user posted to the 3strikes forum copies of the notices they received. Comparing the information provided on those notices to the law and regulations, we noted the following problems:
- There is no description of the type of work as per 14(1) of the Copyright Act. (Regulations 4(2)c(iii).)
- The nature of the breach (as described by 15(1) of the Copyright Act) is not specified. (Regulations 4(2)c(iv).) The notice only says a breach has taken place, not the nature of it.
- The date and time given on the first notice is not specified to the second. (Regulations, 4(2)c(v).)
- The file sharing application or network is not specified. (Regulations, 4(2)c(vi).)
- The notice number does not include information that identifies the type of notice or the IPAP that sent it. (Regulations 5(2)(b) & (c).)
These details matter because the account holder needs to understand what they are accused of so that they can properly defend themselves.
Account suspension
We are also deeply concerned that the notice makes the claim that your Internet connection can be suspended by the District Court for up to six months. This part of the law has not yet been activated, and it is alarming that notices are already misleading users on possible penalties. Orcon should not be making such claims.
Concluding questions
The notices as posted do not comply with the requirements of the law and regulations.
Does this mean that they are invalid and can be challenged (or ignored) as such?
Will the Copyright Tribunal accept them as valid or not?
Does this mean that all notices sent through Orcon are invalid?
Kiwicon – The government is your friend
The government is your friend and wants you to be happy.
This is the transcript of a speech given by Thomas Beagle at Kiwicon in Wellington on November 6th, 2011.
MED confirms talks about centralised copyright notice system
The Ministry of Economic Development has confirmed that it has been involved in talks about a centralised system for handling copyright infringement notices (see earlier article).
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?
Interview – Cyberdodge VPN service
An interview with Ross from Cyberdodge, a supplier of VPN services that enables internet users to hide what they do on the internet.
What inspired you to offer the service?
People will always choose the easiest way to get the latest movies and TV shows and downloading off the internet is it. Unfortunately options are now limited to VPN tunnels not only for p2p but also for using an American IP address to get access to TV sites like www.hulu.com.
Are you getting many customers and what do they want it for?
Yes I am. VPN tunnels have a number of uses that include getting an American IP address to watch tv sites such as hulu.com, encrypt internet traffic when they are using a public WiFi point and of course hiding their real IP address.
How do you feel about the fact that some of your customers will probably be using your service to break NZ law?
No Comment.
What sort of information do you keep about your customers?
We only keep the email address.
What sort of information do you keep about your customers connections? (Such as when they connect, how long they connect for, anything they do through the service.)
We do not log what the user does or transfers over our network but we do log the time of connection and disconnection. We use this data to strategically deploy network resources. We also log the country the user is logging in from, this helps us to detect hijacked accounts and abuse. We do not log IP addresses.
Do you think your business has an obligation under the Telecommunications (Interception Capability) Act to allow the NZ police or other enforcement agencies to monitor traffic?
No, I am not a network operator. A network operator means a person who owns, controls, or operates a public telecommunications network or a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service. CyberDodge does not provide anyone else with the capability to provide a service and CyberDodge is not a public telecommunications network. Public telecommunications network means a public switched telephone network and a public data network. CyberDodge is not a public switched telephone network nor a public data network. A public data network means a data network used, or intended for use, in whole or in part, by the public and includes, without limitation, the following facilities: Internet access and email access. CyberDodge requires that you have internet and email access already. This law applies to ISPs, which CyberDodge is not.
Do you think your business has an obligation under the Copyright (Infringing File Sharing) Act to store customer IP addresses so that you can pass on notices?
No, I am not a IPAP. IPAP, or Internet protocol address provider, means a person that operates a business that, other than as an incidental feature of its main business activities, offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing and allocates IP addresses to its account holders and charges its account holders for its services and is not primarily operated to cater for transient users. CyberDodge does not offer the transmission nor providing of connections for digital online communications. CyberDodge only routes digital online communications. This law applies to ISPs and CyberDodge is not a ISP.
Ministry of Economic Development says “ISPs” not liable for copyright infringement
[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?"
Our interpretation
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.]
Rights holders to develop centralised infringement notice system?
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.
Some questions
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?
Contact us
If you know anything about this proposal we'd love to hear more.
