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Original articles by Tech Liberty

article, copyright

Rights holders to develop centralised infringement notice system?

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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.

article, copyright

Send us your copyright infringement notices!

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.

article, copyright

The Infringing File Sharing Act starts today

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

article, commentary, privacy

Customs testing body scanners

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New Zealand Customs have been trialling body scanners at Auckland Airport and are now working on plans to implement them.

Green Party MP Keith Locke says that using such equipment is illegal as they are banned by the Aviation Crimes Act.

with respect to a person searched under subsection (1), a member of the police, an aviation officer, a Customs officer, or an agent of the carrier authorised by the carrier for the purpose may not use an aid or device that produces an unclothed image of the person.

We also had concerns about both the desirability and legality of this body scanning technology and wrote to the Minister of Customs, Maurice Williamson, earlier this year expressing our concerns. He responded (PDF) that while it was illegal to use body scanners for the purposes of aviation security, it was allowed under the Customs and Excise Act 1996 for the purpose of searching for contraband.

However, Keith Locke responds that the language used when the Aviation Crimes Act was amended in 2007 very clearly showed that Parliament’s intention was to “…prevent any production of an unclothed image … there was no hint of any exception.”

Maurice Williamson says that he is not aware of any plans to further amend the Aviation Crimes Act.

article, copyright

Filesharing: What does the law cover?

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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).

article, conference, TPP

TPPA Forum – video of presentations

The TPP Forum held in Wellington a week ago was a great success with over 130 people turning up to find out more about the Trans Pacific Partnership free trade agreement and what it means for New Zealand.

The speeches have now been uploaded to YouTube.

Jane Kelsey put the TPP in an international and historical context and talked about the impact it would have on New Zealanders.

Thomas Beagle from Tech Liberty gave a presentation on how the TPP was an attempt to circumvent New Zealand’s democracy in the formation of law around intellectual property.

Des O’Day, lecturer in health economics from Otago University, gave some background on Pharmac, how it worked to save New Zealand money, and how it would be at risk from the TPP. Due to technical difficulties Des’s presentation was not videoed.

article, copyright

Recommended copyright regulations released

The Ministry of Economic Development has published the recommendations for regulations for the Copyright (Infringing File Sharing) Act. Some interesting points:

  1. The cost of making a complaint will be $25 (rights-holders argued for $2, ISPs for higher). This is to be reviewed after 6 months. (Minister recommended $20, Cabinet raised it to $25.)
  2. The paper recognises that this fee will not allow for full cost-recovery by the IPAPs and will therefore push up internet costs for subscribers (point 25 on page 7).
  3. Rights-holders can appoint an agent to act on their behalf to send notices.
  4. Rights-holders must use any automated system provided by an IPAP (ISP) to receive notices.
  5. Complaints from rights-holders must be signed and include a statement that, to the best of their knowledge, the information given is correct. Whether this will be enough to limit false accusations is unknown.
  6. Complaints must include the name of the work, the protocol being used and the NZ time/date.
  7. Notices passed on to account holders must include all of the information submitted by the rights-holder. (This is important to give people a chance to defend themselves.)
  8. Rights-holders will pay $200 to take a complaint to the Copyright Tribunal.
  9. The Copyright Tribunal has discretion to set penalties up to $15k as it sees fit, based on the cost of the material and any aggravating factors.
article, copyright

What you need to know about the new copyright law

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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.
article, meta

Defend the NZ internet

This week has seen the launch of two new groups dedicated to protecting the internet in New Zealand.

Retake the Net

The first is Retake the Net, which, in their own words:

It’s increasingly clear that there are serious issues, both in New Zealand and abroad, with internet infrastructure, use, and control. Rather than simply moaning about them, the Retake the Net crew decided to start actually _doing_ something about the issues (with, of course, as much help as we can muster).

RtN’s all about fostering projects which help promote the best aspects of the net, and using new technologies to make sure people can communicate freely. We’re also about increasing the real engagement between government and citizens, and promoting New Zealand’s transition from a consumer to a producer of content and information. We realise that there’s a long way to go, but there’s no time like the present to start.

NZ Internet Freedom Collective

Then there’s the NZ Internet Freedom Collective, who are initially aiming their efforts at the new copyright law that was just passed:

Our founding purpose will be to establish a broad campaign of political, legal and social action aimed squarely at achieving the total repeal of the Copyright (Infringing File Sharing) Amendment Act 2011 and the securing of our Internet rights and freedoms in the next election.

These new groups are both looking for members, or you could consider joining one of the following:

And, of course, at Tech Liberty we’re still looking for people who want to be involved in defending our civil liberties in the digital age.

article, copyright, TPP

Dispatches from the Copyright Wars

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Call for submissions on regulations for new copyright law

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.