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.

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

• 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.

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.

Our submission argues that ISPs are being increasingly put into a difficult position of escalating compliance costs imposed by regulations such as this, while having a very limited ability to prevent the behaviour creating those costs. We believe ISPs should not be involved in any way shape or form in determining what end users can and cannot do with the Internet.

The submission also addresses the re-opening of debate around the division of costs, as the discussion document has again raised the possibility that ISPs will bear significant setup and on-going costs in handling these notices. We also note that information provided to those being accused of infringing copyright should be full and complete, and sufficient to assist account holders in identifying the root source of the claim of infringement.

Full submission: Tech Liberty Submission on Copyright Infringing Filesharing Act Regulations [PDF].

The Copyright (Infringing File Sharing) Bill has been passed and now the Ministry of Economic Development has to develop the detailed regulations that will define the processes described within the Bill. They have asked for submissions and have released a discussion document (link currently not working due to failure on MED site).

The main topics are:

• The procedures around rights owners sending notices to IPAPs (internet service providers), IPAPs sending them on to account holders, and account holders challenging the notices.
• The method that the Copyright Tribunal will use to calculate penalties.
• The fees charged by IPAPs (ISPs) to the rights owners for handling the notices.

The following points are of note:

• The draft list of requirements for a notice includes proof that the complainant does hold the copyright for the work being copied. The complainant must also have a New Zealand address for service.
• The Ministry favours leaving the Copyright Tribunal to set the penalties with minimal guidance.
• The discussion paper says that ISPs making submissions should work out their costs as if they were processing 5000 notices per month. Each!

We'll be doing a submission aimed at making this inherently flawed law work as fairly as possible.

Wikileaked US cables about s92A and TPP

Idiot Savant at No Right Turn has been keeping an eye on the flood of documents coming from Wikileaks and brought our attention to two of them:

From April 2009, this cable (09WELLINGTON88) is a general backgrounder on the events around the rise and fall of section 92A of the Copyright Act. The US bias towards the rights owners is clear and the cable makes it clear that the US government would be pressuring the NZ government to hurry in the redrafting of the law - and even offers to help. The following quote will worry anyone who has been following IP issues in the US:

U.S. agencies have the benefit of 10 years worth of experience in enforcing the U.S. Digital Millennium Copyright Act that may serve useful to New Zealand officials in their effort to implement section 92A.

From February 2010, this cable about TPP (10WELLINGTON65) is amusing because the MFAT officials are telling the US that the perception in New Zealand that a free trade agreement with the US will lead to be a big increase in trade is over-hyped. The officials also admit that intellectual property (copyright, trademarks, patents) and pharmaceuticals will be contentious issues in NZ.

Some have interpreted this to mean guilt on accusation has made a return back into the bill, after S92A was suspended and finally defeated for doing the exact same thing. In response, it is claimed that this does not re-introduce guilt on accusation, but instead is based on the traffic ticket model, where guilt is presumed unless they are contested.

But traffic tickets are quite different to the claims made by media companies.

• Traffic tickets are issued by sworn police officers, or by automated systems that are held to rigorous standards. Media companies and their notice sending robots are not held to the same standards and have no statutory obligations or penalities for wrongful claims. The industry has resisted attempts to inspect their automated systems.
• Police are subject to oversight by their superiors, the Independent Police Complaints Authority and ultimately parliament and the public. They have a responsiblity to be impartial and to act in the public good. Media companies and their agents have no oversight at all and act purely in the interest of their own profits.
• Tickets issued by officers are unlikely to identify the wrong person, while automated systems have a number of checks and balances to ensure that only solid and provable tickets are issued. Media companies have already engaged in carpet-bombing users with claims that cannot be substantiated, and they rely on ISPs to always identify the correct account holder.

Google noted in their submission on S92A that 37% of the notices received under the DMCA were unable to be substantiated as valid copyright claims, and a whopping 57% were businesses targeting their rivals. Judge David Harvey noted in his submission on S92A that 30% of the copyright claims being heard in New Zealand failed to even establish a rightful copyright claim. Considering this error rate, surely we can't be proposing to accept untested claims from media companies as conclusive evidence?

We believe that 122MA is trying to allow the Copyright Tribunal to make rulings based "on the papers" where there is no contest being made about the claims. But rather than following a traffic ticket model - making any claim made by a media company conclusive proof - we believe the Tribunal already has sufficient scope and experience to make that determination itself. This is similar to how the Disputes Tribunal works and is a sensible model for handling copyright infringement claims.

Section 122MA should be removed in its entirety.

Mr Power,

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.

Yours Faithfully,

Sam Fickling

First, the report of the Commerce Select Committee (PDF).

We found that the bill raised complex issues around the challenges faced by rights holders in an environment of rapidly-developing technologies, which are changing consumer expectations and behaviours. We have attempted to strike a balance between the rights of copyright holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.

Commerce Minister Simon Power announces that account suspension will be suspended:

The bill, as referred to the committee, included the power for a District Court to suspend an internet account for up to six months, in appropriate circumstances. The committee has recommended that this power be included in the Copyright Act - as foreshadowed by the Government - but not brought into force unless the notice process and the remedies in the Copyright Tribunal are ineffective.

Techday describes the new elements of the Bill:

The measures include ISPs sending warning notices to their customers informing them they have infringed copyright, and extending the jurisdiction of the Copyright Tribunal to provide a fast track, low cost process to hear illegal file sharing claims. The tribunal will be able to award penalties of up to $15,000 based on damages sustained by the copyright owner.

Another key recommendation is that the notice regime will not apply to cellular mobile networks until August 2013.

Blogger David Farrar wrote a good summary of the good and bad bits of the Bill, pointing out how far it has come since the original:

I'm especially pleased that they have effectively shelved for now the termination provisions, as I thought that would set a bad precedent.

He also noted the worrying inclusion of section 122MA:

Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof.

Organiser of the original Blackout, the Creative Freedom Foundation, is also concerned about section 122MA, pointing out the lack of penalties for false accusations:

Alarmingly, the report recommends a return to Guilt Upon Accusation. This is despite hundreds-of-thousands-of people protesting against such a law in last year's Internet Blackout campaign. Rather than the presumption of innocence, there is a presumption of guilt under section 122MA. This is exacerbated by the lack of any sanction for false or malicious accusations, making the process ripe for abuse.

Rick Shera comments at his LawGeekNZ blog, noting among other things:

The Committee has strongly indicated that Copyright Tribunal include a punitive element in any awards it makes up the $15,000 limit. In other words, monetary awards (which go to rights owners) are not intended to be merely compensatory but to punish as well.

In a follow-up article, Rick then goes on to give an in-depth analysis of the legal issues around the new section 122MA:

a provision that creates a presumption heavily favouring the rights owner. Section 122MA - without any warning, no public consultation and out of kilter with the balanced approach that has gradually developed.

He concludes:

Section 122MA should be deleted. A statutory presumption of guilt is out of place, is unnecessary and has the potential to unfairly prejudice innocent account holders.

At Tech Liberty we discussed the definition of IPAPs, the committee's attempt to better define what types of entities should be responsible for their users. Unfortunately we didn't come to any conclusion:

Note that the definition of IPAP in other regards isn't Internet-specific, just that it provides "digital communications" between places of the user's chosing. It is somewhat bizzare it's broad-based in one clause and extremely technology-specific in another.

LIANZA, the Library Association, is concerned that libraries will be unreasonably responsible for the actions of their users, with the Committee choosing not to provide an explicit exemption:

The Amendment Bill still fails to make an adequate distinction between "users" and "account holders", and does not fully recognise that an account holder such as a library may have many thousands of users of the Internet services which it makes available.

InternetNZ notes that while the new version of the Bill is better while still containing some problems:

The Committee has done good work in addressing some other issues that were present in the draft Bill. Among other things, they have clarified definitions of 'Internet Service Provider', 'file sharing' and 'copyright infringement'.

Other issues remain problematic: our suggestion that section 92C in the Copyright Act be replaced by the same notice procedure set out in this Bill has not been taken up, and the Bill still leaves account holders entirely responsible for another person's use of their account even where they have no control over them.

Finally, on the political front, Clare Curran of the Labour Party defends the compromise that led to Internet account suspension being left in the bill, but in a suspended state:

This compromise means that termination of Internet access as an ultimate penalty for repeat copyright infringement remains in the Bill, but cannot be enacted unless the Minister makes the decision to do so.

She then goes on to underline the importance of the Internet:

We believe that Internet access is fast becoming as necessary to us in our daily lives as the provision of electricity, water and the telephone. However Internet access is not just a utility but also enables the provision of social and family connections across distances and time zones, education and work opportunities.

Green MP Gareth Hughes agrees with the importance of the Internet but is more critical on the topic of suspension:

The Green Party asserts that there is a danger in heavy-handed regulation for a problem that may only be a temporary result of new technologies upsetting traditional business models. The use of fines rather than Internet suspension is a more appropriate sanction for file sharing, and the punishments should be proportionate to the crime.

Citizens are not denied the right to use their telephones because they happened to be used in the commission of a crime, and this legislation should not set any precedent. Access to the Internet has become a necessity in an era when more and more public and private services are only provided online.

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?

Disclaimer from Chris: "It goes without saying that these are a Law student's interpretation of the first bill and they don't pretend to give a comprehensive view of the provisions - so viewer beware. However I hope they may be helpful."

Click on each flowchart to view it full size.

The flowcharts

• Overview of section 122
• Handling alleged infringement
• Copyright Tribunal Procedure
• District Court procedure

Overview of section 122

Handling alleged infringment

Copyright Tribunal procedure

District Court procedure