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Are some Copyright Infringement notices invalid?

Posted on January 6, 2012

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

Posted on November 7, 2011

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

Posted on October 31, 2011

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

Posted on October 26, 2011

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

Posted on September 19, 2011

[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?

Posted on September 16, 2011

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.

Send us your copyright infringement notices!

Posted on September 1, 2011

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 notices@techliberty.org.nz. 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.

The Infringing File Sharing Act starts today

Posted on August 11, 2011

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.

What's covered?

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.

More information

Filesharing: What does the law cover?

Posted on July 21, 2011

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?

MED's Answer

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.

Parliament

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.

Select Committee

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.

Conclusion

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).

What you need to know about the new copyright law

Posted on July 10, 2011

Parliament has passed the Copyright (Infringing File Sharing) Act.

Here's 10 things that you need to know about it:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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).
  7. 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.
  8. Personal details. The copyright-holder will not be given your name, address and other contact details. All communication is handled by your internet provider.
  9. 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.
  10. Account suspension. The provision in the law allowing for an internet account to be cut-off is currently suspended.