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Original articles by Tech Liberty

article, copyright

Quick guide to the new copyright bill

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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.

Improvements

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.

Major problems

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.

Political support

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

Other articles of note

article

Website takedowns: a followup

2 Comments

We recently wrote about how an offensive website was taken offline by complaints.

In particular, we talked about the tactics that were used to take them down and whether they were a good thing for the internet or not. The two tactics described were:

  1. Complaining to the ISP that the site breached their terms of service. We said this risks reducing opinion on the internet to the level of whatever a company’s PR department finds acceptable.
  2. Using copyright complaints over the site’s use of a photo without permission. Taking down an entire site over what is arguably a reasonable use of an image is an affront to freedom of speech and shows how dangerous these US-style shoot-first-ask-questions-later copyright laws are.

The article attracted a fair bit of comment both for and against the use of these tactics. We also received some new information and thought it was worth posting a followup.
Continue reading Website takedowns: a followup →

article, copyright, suppression

Taking down websites you don’t agree with

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This is a post about the tactics used to take down a New Zealand website hosted in the the USA and what they mean for the Internet. (Update post.)

The website

Soon after the Christchurch quake, a website (christchurchquake.net) was published that said the quake was God’s punishment for Christchurch’s tolerance of homosexuality, with God being especially annoyed by Gay Ski Week. The website also made a number of other very odd claims concerning a conspiracy of “Phoenician-descended swamp lesbians” headed by Helen Clark that had taken over New Zealand.

The takedown

The site is no longer available (Google cache here). This is because a number of people found the site highly offensive, and some of them decided that they would do what they could to get the site taken off the Internet.

The author of the site could not be identified so most action was aimed at getting Bluehost, a company based in the US state of Utah, to take it down. Two main tactics were employed:
Continue reading Taking down websites you don’t agree with →

ACTA, article, TPP

ACTA vs TPP: The Case for Transparency in International Treaty Negotiations

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ACTA (the Anti-Counterfeiting Trade Agreement) has shown us that openness when negotiating trade agreements leads to a better result – but it looks like this lesson that hasn’t been learnt by the negotiators of the TPP (Trans Pacific Partnership) free trade agreement.

At the beginning of the year Tech Liberty was involved in the campaign against the ACTA treaty. A major part of the problem with ACTA was that while we knew it was attempting to push more offensive IP laws, the secrecy around the negotiations meant we didn’t know what was in them.

Traditional Closed Model of Treaty Negotiation

ACTA followed the traditional model of negotiating a trade agreement (PDF), which goes something like this:

  1. A number of countries get together and decide to negotiate an agreement.
  2. The countries send their delegates to a series of meetings.
  3. The delegates discuss what sort of things will be in the treaty and come up with an agenda.
  4. Delegates present papers about particular topics.
  5. Work starts on a draft agreement.
  6. The delegates work through the draft removing points of difference.
  7. The text is finalised and returned to the governments for signing.
  8. In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
  9. The governments make any required law changes and then sign the treaty.

You’ll note that the consultation with the people comes after the treaty text has been finalised. The process is structured so that there’s no chance that a government could consult, then come back to the negotiations and ask for more changes to be made (and indeed, this could be a bit chaotic).
Continue reading ACTA vs TPP: The Case for Transparency in International Treaty Negotiations →

article, filtering

Dear Independent Reference Group – Do Your Job

Dear Independent Reference Group,

Please do your job.

Yours, Tech Liberty

We believe that secret censorship is a threat to our democracy. We need to be careful when giving our government the ability to limit what we can see and hear – which is why we require the Chief Censor to publish their decisions. This openness, the ability for anyone to review and challenge, helps prevent abuse of the censorship scheme.

One of our objections to the government’s Internet censorship filter was that the Department of Internal Affairs has refused to release the list of censored sites. They say that they’ll only censor certain types of material, but how can we know that they’re sticking to this without being able to see the list?

The DIA did respond to these concerns by establishing the Independent Reference Group to provide at least some semi-independent oversight of the filter, although they had to be persuaded to let the IRG have access to the list of blocked sites. Then, from the minutes of the IRG’s meeting on 15th October 2010:

Members of the Group were invited to identify any website that they wish to review. They declined to do so at this stage.

Now, we quite understand that members of the IRG don’t want to look at those sites. But that’s not the point – they have a responsibility to ensure that the filter “…is operated with integrity and adheres to the principles set down in the Code of Practice.”

This oversight isn’t going to work if the IRG don’t exercise it. The filter list grew from 153 entries in June to 538 in November – surely it would have made sense to have a look at the list and select some of the additions for a brief review?

Recommendation

We recommend that at each meeting the IRG should randomly select a sample of newly added sites and review the content to ensure that the filter is not being abused. Anything less is neglecting their duty.

article, privacy

1-Day finds that anonymity is hard

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Update: 1-Day claims that they have tweaked the feature so that customers can choose to use aliases. However, there appears to be no way to enter an alias when signing up for an account or proceeding through checkout without an account (18/11/2010).

Update 2: 1-Day support are unaware of any new alias feature. They suggest entering an initial instead of your first name. The site continues to publish live customer data (18/11/2010).

Update 3: 1-Day have now added a checkbox for “Make my purchase public” to the sale process and have included a link that explains the feature. We think that this is sufficient notification and allows people to opt out if they wish, although it would be better if the checkbox was not ticked by default (23/11/2010).

1-Day is another of the many “deal a day” sites. An extra feature on this particular site is Watch People Shop – a dynamic map of NZ with “Sharon in Lower Hutt bought a Mistral Bread Maker 5 minutes ago” overlaid.
Continue reading 1-Day finds that anonymity is hard →

article, copyright

Copyright infringement notices aren’t traffic tickets

One of the notable changes in the latest revisions of the Copyright (Infringing File Sharing) Bill is the addition of section 122MA. This section states that infringement notices issued by media companies against individuals are conclusive evidence to prove wrong-doing.

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.

article, filtering

An Update on Internet Censorship in NZ

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Yesterday Telecom announced that they were joining the DIA’s Internet censorship scheme.

It seems that a lot has happened since we did our last update.

Increase in the number of ISPs

The ISPs using the system are now:

  • Maxnet
  • Watchdog
  • TelstraClear
  • Airnet
  • Xtreme

Telecom are obviously next and Vodafone are also apparently well on the way to implementing it. According to the DIA, “Discussions are continuing with Ihug/Vodafone, Woosh, Orcon and 2degrees. Design changes are being investigated to adapt the system for performance on mobile devices.” However public statements from Orcon have said they have no plans to implement the filter.

Even so, this means that most users of the Internet in New Zealand will be using a filtered connection.
Continue reading An Update on Internet Censorship in NZ →

article, copyright

Replacing ISPs with IPAPs – How well have they done?

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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?
ACTA, article

ACTA: the ‘final’ version

The 11th round of the ACTA Treaty negotiations have finished and it seems that there won’t be any more rounds. Exactly what this means when the treaty text hasn’t been finalised is uncertain.

The current treaty text has been officially released.

The Tech Liberty view

We’ve had a lot to say about the ACTA treaty over the past year. In its earlier form there was a lot to complain about – it was much more than an anti-counterfeiting treaty in the way it tried to impose draconian pro-copyright and pro-patent laws.

In our article, ACTA – Bad for Civil Liberties, we noted five particular points that worried us:

  1. Excess criminalisation where infringement is taken from civil law to criminal law.
  2. Statutory damages where the law specifies the amount of damages to be paid to the plaintiff rather than letting a judge or jury make a determination based on the circumstances of the case.
  3. Third party liability where people (such as ISPs) who provide tools or means that other people use to break the law are held liable.
  4. Forcing ISPs to breach privacy by giving up customer information on demand.
  5. TPMs (technological protection measures) where digital locks are used to prevent people using products they’ve bought in ways that the rights holder doesn’t want them too.

In our last update, we noted that our objections to points 1, 2 and 4 had largely been removed, while progress had also been made on points 3 and 5.

Further changes

Since then, the section about third-party liability (i.e. blaming ISPs) has been dropped in favour of some rather wishy-washy statements about encouraging people to work together to stop infringement within the laws of the respective countries.

The section on TPMs still remains but adds “to the extent provided by its law” which seems to mean that each country will be able to set its own rules. This means that New Zealand can keep its current law that allows people to circumvent TPMs for non-infringing purposes.

In other words – the five issues that we chose to focus on have all been steadily neutered over the course of the negotiations. While we still don’t believe ACTA is benign, or necessary, many of the worst aspects have been removed.

Some other views

Continue reading ACTA: the ‘final’ version →