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.

copyright, guest article

Guest post: Letter to Mr Power re Copyright

Sam Fickling sent us a copy of his letter to the Commerce Minister, Simon Power, about the proposed changes to the Copyright (Infringing File Sharing Amendment) Bill. He has kindly given us permission to publish it here.

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”!
Continue reading Guest post: Letter to Mr Power re Copyright →

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?

11 Comments

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 →

article, suppression

Government to turn ISPs into censors

2 Comments

The Government is to tighten up the rules around court-ordered name suppression. The proposed changes are in response to the Law Commission’s report recommending that the rules around suppression need to be clarified and that suppression should be harder to get.

Of concern to Tech Liberty is the following from the Cabinet Paper (PDF):

that it be an offence where an onshore internet service provider or content host becomes aware that they are hosting information that they know is in breach of a suppression order, and they fail to block access or remove it as soon as is reasonable practicable;

While on the face it this does not seem completely unreasonable, the devil is in the details:

  • Defining exactly what an Internet Service Provider is turns out to be difficult – and is something that the copyright legislation has also struggled with. Does it include a library or cafe providing free internet? What about a publicly shared connection from someone’s house? How about ISPs that are only providing wholesale bandwidth to other ISPs – which is responsible?
  • What duties do ISPs have to police content hosted on their networks by their customers? What if the server is under the control of the customer and the ISP is only providing internet bandwidth and power?
  • How will ISPs and content hosts be able to tell whether material is in breach of a suppression order or not? What if the material is only hinting at the identity – does the ISP have to decide whether it’s enough to qualify as a breach and take it down?
  • What does “block access or remove it” mean in practice? If ISPs have no admin access to the server hosting the website (as is common when they host other company’s servers), will they be forced to take down entire websites or multi-site web-servers to remove a comment posted on a blog?

ISPs as judge/jury/executioner

We fear that this new law will be a repeat of the debacle around changes to the copyright act – trying to force ISPs into having to make complex legal decisions simply because no one else can do it.

It was wrong to make ISPs judge and punish people for breaches of copyright, it’s equally wrong to make them judge and punish people for breaches of suppression orders.

Future of suppression

Ultimately, the law changes may be largely pointless once the ease of publishing information on the internet anywhere in the world is taken into account.

We look forward to seeing the final text of the bill and expect that we will be making a submission.

See also Rick Shera’s blog post.

submission, surveillance

Oral submission : Search & Surveillance

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Today Tech Liberty made an oral submission to the Justice & Electoral Select Committee about the Search & Surveillance Bill, following up from our written submission.

We changed some of our recommendations between the written and oral submissions, particularly around:

  • Notifying people of searches or surveillance against them
  • Handling targeted searching of computers

The full text of our oral submissions follows, albeit there were some wording changes in the actual presentation.
Continue reading Oral submission : Search & Surveillance →

article, privacy

Changes to availability of car rego info delayed

The New Zealand Transport Agency has announced that the changes to public access to the Motor Vehicle Register have been delayed until April 1, 2011.

Current law

Currently, the names and addresses held on the Motor Vehicle Register are publicly available to any person who provides the registration plate number of the vehicle and pays the prescribed fee. It is possible to request a confidential listing.

This means that anyone who knows the registration number of your car can find out where you live.
Continue reading Changes to availability of car rego info delayed →

submission, surveillance

Submission: Search & Surveillance Bill

2 Comments

Text of our submission to the Select Committee about the Search & Surveillance Bill. Or download the PDF version.

1. General comments about the S&S Bill

While we appreciate the proposed changes to the Bill, we still hold grave concerns about the general thrust of the Bill towards increased powers for search and surveillance.

We have the following comments on some of the issues raised by the Summary Departmental Report.
Continue reading Submission: Search & Surveillance Bill →

ACTA, article

ACTA: Improving but problems remain

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The ACTA treaty negotiation process is still going strong. The participants apparently feel pressured to finalise the agreement before the end of the year and have agreed to an extra negotiating round in Washington next week to help hurry things up.

The most recent leaked text shows that progress is being made on the details while some major disagreements (mainly around the scope of the agreement – should an anti-counterfeiting agreement also include patents and geographic indications) are yet to be resolved.

In our last summary article about ACTA we raised five issues where we thought that the treaty was a threat to justice and civil liberties.

Here we revisit them and find significant improvement in three of those issues and minor improvements in the other two.
Continue reading ACTA: Improving but problems remain →