Tag Archives: copyright

copyright

Submission: Copyright (Infringing File Sharing) Act Regulations

Tech  Liberty has made a submission to the Ministry of Economic Development on their discussion document for the regulations surrounding the Copyright (Infringing File Sharing) Act recently passed into law.

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].

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.

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 →

copyright, guest article

Letter to Simon Power About Copyright Infringement

Tech Liberty was a co-signer on this letter to Simon Power about the Copyright (Infringing File Sharing) Amendment Bill.

The three main areas covered by the letter and briefing are:

  • Avoiding the possible reversal of burden of proof when people are accused of infringement (section 122MA).
  • Account holder liability for shared internet connections when the account holder would have no way of controlling the users of the connection.
  • Mechanism for activating the suspended “account suspension” provisions.

See our other articles about copyright issues in general and this law in particular.

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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 →

commentary, copyright

Copyright Bill Roundup

A round-up of comments and information about the latest report on the Copyright (Infringing File Sharing) Amendment Bill.

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.

Continue reading Copyright Bill Roundup →

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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 →

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 →