Three brief items about the Copyright Act and the Copyright Tribunal:
1. RIANZ withdraws from another defended hearing
Another defended hearing was scheduled to go to the Copyright Tribunal this month but RIANZ has withdrawn the complaint (info from phone call to Copyright Tribunal). No further details of the case are known, so was it another fatally flawed case like the first withdrawn case or is RIANZ just not prepared to fly down to Christchurch to appear before the Tribunal?
2. Second Copyright Tribunal Decision
A second decision has been made with the Copyright Tribunal ordering a 50 year old father to pay $557 to RIANZ for sharing two songs (one twice). As in the last judgement, the evidence would appear to show that the defendant did not really understand the process nor what they had been accused of - rather it seems likely that their 8 and 12 year old sons might have done it. There is also evidence to show that they didn't understand the first two notices they received enough to be able to take action to prevent the third enforcement notice.
3. Copyright Act working as intended - kind of
Finally we come to a case where the Copyright Act did work as intended - but only after the intervention of Tech Liberty. We received a communication from someone who had received an initial detection notice.
Just got this and as a 52 year old single mum I can't understand what they mean about that the alleged infringed song has been communicated to the public? Is the infringement about the song being downloaded of shared publicly or both? I'm horribly confused. My teenage daughter says she can't stand the song and I don't even know the song. Perhaps my older 2 adult children or my boarders have done this? Any advice would be very much appreciated.
Her confusion is quite understandable when you look at the notice (identifying details removed):
Notice Number: xxxxxxxxx
Infringement Notice Date: xxxxxx
Notice Type: Detection Notice
Infringing IP Address: xxx.xxx.xxx.xxx
Infringing Date: xx/xx/xx
Name of the file: Chris Brown - Beautiful People.mp3
Unique identity of the file:
Copyright Owner: Sony Music Entertainment Incorporated
Type of Copyright Work: Sound recording (14(1)(b))
Restricted Act: Copyright has been infringed by this account holder communicating the work to the public (16(1)(f))
File Sharing Application: Azureus 126.96.36.199
What is this meant to mean to someone who doesn't understand what file sharing is? The information included by Slingshot may have explained the law but made a very poor effort at explaining what she was accused of. We rewrote it for her:
They're saying that someone at your house has installed a piece of software called Azureus (also called Vuze) and they've used that to download a song called Beautiful People by Chris Brown. The Azureus software not only downloads the song, it also uploads it to other people who want it (this is why it's called peer to peer file sharing). Sony/RIANZ have detected this upload and have made a complaint to Slingshot who have passed it on to you.
The response came quickly:
Thank you so much for getting back to me and for taking the time and all the information, very much appreciated. :) I have found out that one of my son's friends has done this and he says he won't do it again. He is a good family friend so thats fine. I will get the guys to delete the Azurus or Vuse and to check for any other peer to peer programs.
Surely a good outcome for RIANZ with a junior copyright infringer stopped after the first warning.
But it seems that the current format of the notices is not good enough. Non-technical people don't understand what they're accused of and have no idea what they should do to stop it happening again. And, after all, it's often the non-technical people who are the account holders while someone else sharing the same account may be the one doing the infringing.
It seems clear from these first few cases that the notices need to be improved so that they do a better job of explaining both the accusation and what they need to do to stop it happening again.
When the new three-strikes copyright infringement scheme was implemented, it included section 122T that imposed some obligations on IPAPs (ISPs) to collect and retain data, and publish an annual report. As Sam Russell reminded us today, the first of these reports was due by 31st December 2012 for the period 1st October to 30th September.
Here's the reports we know of:
- Actrix - the most minimal report yet (but claim that they received no notices).
- DTS - no complaints received.
- Maxnet - no complaints received and a very minimal report (bottom of page).
- Orcon - received 234 complaints, sent 198 notices, received 16 challenges.
- Slingshot (PDF) - received 473 complaints, sent 398 notices, received 14 challenges.
- Telecom - takes a very minimal approach, just states it has complied.
- TelstraClear - received 818 complaints, issued 540 notices, received 25 challenges.
- Vodafone - received 538 complaints, issued 350 notices, received 21 challenges.
- Xtreme - received 2 complaints, issued 0 notices.
We have asked 2 Degrees, Compass, Inspire, Snap, Vocus, and Xnet where their reports are.
We'll add more as we find them and do some collation/analysis when we have enough. One thing that is noticeable is that very few of the notices are being challenged by the recipients.
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 email@example.com. 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.
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.
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.
- Our article, What you need to know about the new copyright law.
- Flowcharts showing the processes included in the law (thanks to the TCF).
- Think you can become an ISP/IPAP and thereby pass your liability on to your users? Our article explains why you probably can't.
- 13 reasons why the Infringing File Sharing Act is bad for you by Christopher Wood.
- 3 Strikes NZ website about the new law.
- Information from the Ministry of Economic Development.
- The text of the law.
The Copyright (Infringing File Sharing) Bill is a replacement for the abandoned section 92A of the Copyright Act. It provides provisions for media companies to accuse people of infringing copyright, and for those people to be fined by the Copyright Tribunal. It also includes the penalty of disconnecting their internet - but this provision will initially be suspended.
The Bill went through one round of submissions (see ours) but the second reading was done under parliamentary urgency on the 13th of April and it is expected to be passed, still under urgency, on the 14th of April.
Updates: the bill has passed its third reading and will come into effect on September 1st, 2011. The Ministry of Economic Development is consulting on the regulations that will help with the administration of the law.
The Bill has some improvements over section 92A:
- It has replaced the overly wide definition of ISP (Internet Service Provider) with the idea of an IPAP (Internet Protocol Address Provider).
- The person accused of infringing copyright now has a chance to defend themselves against the accusations.
- It doesn't make ISPs responsible for making decisions about disconnection - they just have to pass messages between the accuser and the accused.
- It better respects the privacy of account holders.
But overall it still has some major problems:
- It makes the person whose name is on the internet account liable for all actions done by any user of that connection. Flatmates will be responsible for the people they live with, businesses will be responsible for their staff, parents will be responsible for their kids, librarians will be responsible for the users of their free internet terminals. Sharing your internet connection will put you at legal risk.
- It includes the idea that the Copyright Tribunal should believe the accusation from the media companies unless the account holder can prove it to be wrong. This is even when these accusations have been proven time and time again to often be substantially inaccurate. There are no penalties for making false accusations.
- It still includes internet disconnection as a penalty. Initially this provision will be suspended but it can be reactivated at the whim of the government. We oppose disconnection.
National, Labour and the Maori Party are voting in favour of the Bill.
The Greens are voting against it.
Tech Liberty articles about the bill
- Roundup of initial reactions to the bill
- Why we shouldn't accept the media companies accusations as true
- What is an IPAP and what are the differences between IPAPs and account holders?
- Revised section 122MA is no comfort
- Guest post - letter to Simon Power re copyright
- Our submission to the Select Committee.
- Flowcharts explaining some of the processes in the bill
Other articles of note
The Commerce Select Committee has reported back on the Copyright (Infringing File Sharing) Amendment Bill (PDF).
One of the problems in the drafting of such a law is how to define what an ISP is. The obvious approach is "provides internet services" but what about a cafe that gives free wireless access to customers? Or a university that provides services to staff and students? The problem is a lot harder than it looks.
The latest report suggests replacing the definition of "Internet Service Provider" with one for "Internet Protocol Address Provider" or IPAP.
This would avoid ambiguity and focus on the function of an Internet service provider that is relevant to infringing file sharing, namely the provision of Internet protocol addresses.
Of course, this does no such thing as anyone providing any form of internet service must provide an "Internet protocol address" to each person using it. It's inherent to the nature of an Internet connection and, once again, shows that Government isn't very good at technology. Edit: This may be trying to protect providers of low level services such as cabling and fibre.
However, when we look at the full definition, maybe it's not so bad:
IPAP means a person that operates a business that, other than as an incidental feature of its main business activities,
(a) offers the transmission, routing and providing of connections for digital online communications, between or mong point specified by user, or material of the user's choosing; and
(ab) allocates IP addresses to its account holders; and
(b) charges its account holders for its services; and
(c) is not primarily operated to cater for transient users.
A discussed, the inclusion of "(ab) allocates IP addresses" seems a bit unnecessary but overall the definition seems to hold up under scrutiny.
- Orcon and other ISPs would obviously be an IPAP.
- Cafenet supports both transient and account-based users. Should it be an IPAP?
- Universities and libraries would not be an IPAP because of (b) (there is no direct charging although student fees do include provision for services).
- Someone sharing a connection with their friends would not be an IPAP because of (b).
- Citylink would be an IPAP. (Should it be? See discussion in comments.)
- The local coffee shop would not be an IPAP because of (b) and (c).
- Would an Internet cafe be included? They do charge, the users vary between transient and regular.
- Mobile data from Vodafone/Telecom/2 Degrees will not be included for now, because a separate clause delays their inclusion until 1 August 2013.
How have they done? Please help.
Can you think of any cases:
- Where a person or company will be included as an IPAP that shouldn't be?
- Where a person or company that should be an IPAP won't be?