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S92A: Campbell Smith is finally removing his head from his…

Written By: - Date published: 2:59 pm, March 9th, 2009 - 5 comments
Categories: activism - Tags:

Sometimes the myopia of RIANZ is breath taking. Campbell Smith, its chief executive, has written an dialogue piece in the NZ Herald. “Anti-piracy law a reasonable way to protect artist rights“. He obviously has been listening over the last month – just not enough yet – and obviously not enough to put money to the problem.

I said in my post for the blackout:-

Section 92A are appears to be unworkable and lack any equity or justice. It is an attempt to perform an important task on the cheap. There needs to be a body of people trained in copyright law and the net to make rapid decisions – especially about the critical issue of false accusations. The court system is obviously too slow and cumbersome for any serious level of net adjudication. This is all going to cost real money, something that all parties appear to not want to consider. The intent of this clause is laudable. Its implementation looks like crap.

Campbell reiterates the current state of the S92A without a workable code of conduct

What would happen is simple. Right holders could log on to public file-sharing sites, just as anyone can, and note which IP addresses are being used to upload pre-release music or films or large amounts of copyright-infringing material.

They would then prepare evidence, complete with details of the names of the copyrighted files being uploaded, exact timestamps and the protocol used, and send it to the relevant ISP. They would never see the personal details of the person behind that IP address.

The ISP would then contact its user and warn them that they were breaking the law, advise them not to do it again and provide details of where to enjoy music legally online.

The first bit is fine and in essence if exactly what most ISP’s do now. However the next bit is the problem…

If the user kept breaking the law the ISP could close the internet account.

I have no wish to have one or more complaints about images or words from a wingnut or the National or ACT party, or Crosby/Textor or anyone else that we offend, being able to shut down this site at will. In Campbell’s scenario, no-one has seriously looked at that evidence apart from the person making the accusation. The ISP’s wouldn’t know what they were looking at, especially the smaller ones.

What he is describing is what the current S92A without an agreement between the various parties for a code of conduct would amount to – shutdown on accusation(s). This is the reason that there has been widespread opposition across the net content providers. This is the current state of the play and why the implementation of this act will be forced to a standstill or sites like this one move to offshore hosting. Because Campbell still hasn’t looked at what this act would mean for any copyright. For instance his ugly mug at the top of this post (linked over from the NZ Herald). It would be easy for him or the Herald to claim copyright on despite it being in the public domain, and this site not actually having a copy of it.

However Campbell may be extracting his head and entering reality:-

I agree with the proposition that users should be able to flag to an independent adjudicator anything they regard as mistaken evidence. This is no sledgehammer. On the contrary, it is a reasonable and much preferable alternative to the lawsuits we’ve seen in other countries.

I’d almost agree with that – if such a adjudication body existed and was funded then a code of conduct could be framed around that not only for the piracy that his organization is concerned with, but also for the other parts of the net that are also impacted – like this site.

If such a body existed then the rights holder or the ISP has to submit the evidence to that adjudication body to establish a prima-facie case before moving down the chain from company or hosting site to the end-user. That will get rid of the malicious accusations, especially if the code of conduct says that the cost of the adjudication of a false claim is borne by the accuser. Obviously some standards of proof would be established pretty fast, and the majority of complaints that are clearcut could be whistled through at net speeds. But it will be expensive especially when the first accusations are handled.

Something like that would put enough checks and balances in the system to have a extra-legal system, that would still allow recourse to the courts for the edge decisions.

Since this section appears to be primarily for Campbell’s members benefit, then it should also be that they are willing to help fund it. They could start the ball rolling in the negotiation now and say how much. Otherwise this is all flatuence.

Given that, who knows, even this government may come to the party as well as the ISP’s, movie makers, and others. It’d be simpler, faster and cheaper than using the court system. In effect it is a type of common insurance for all these groups.

In the meantime, I’ll continue my plans to move this site offshore and out of the range of this unworkable section – because Campbell and RIANZ look like they’re pretty slow.

5 comments on “S92A: Campbell Smith is finally removing his head from his… ”

  1. vidiot 1

    Lynn seen this wee gem ? http://www.stuff.co.nz/technology/2130185/Curran-issues-copyright-talks-invitation

    “The Labour Party will invite organisations with an interest in copyright law to informal talks this month.

    Communications spokeswoman Clare Curran says the goal will be to try to thrash out agreement on the wider issues of copyright, following controversy over section 92a of the Copyright Act, which would oblige internet service providers “in appropriate circumstances” to cut off “repeat copyright infringers”.

    The talks would help Labour form a view about what it would do when it returned to power.

    “There should be a group talking about the big issues. Someone has got to take the initiative.”

    Ms Curran has recommended that section 92a be rewritten so that the Government would have the final say on endorsing and giving legal effect to any agreement between copyright owners and internet providers that set out how they would interpret their obligations.”

    Not wanting to burst Clares bubble, but aren’t industry (ISP & RIANZ) currently trying to come to some agreement on this. What will some other 3rd party talk-fest achieve ? And hopefully we can see this issue dead & buried before 2011 or longer.

    captcha: ViewsPlenty (yes we can agree on that)

    • lprent 1.1

      Haven’t seen it. But the issue probably won’t go away. However it should get tied in to questions about how to make nz more desirable to host in. This new site in Utah costs a sixth of the local site

  2. Felix 2

    Absolutely.

    An independent adjudicating body should be the first port of call for rights holders, not a backstop for when wild west kangaroo justice fails.

  3. Vidiot: “Not wanting to burst Clares bubble, but aren’t industry (ISP & RIANZ) currently trying to come to some agreement on this.”

    They were, but things have since broken down again. So maybe it’ll take litigation to sort things out.

    • lprent 3.1

      Wasn’t that predicable. That is why I’ve carried on setting up an offshore site – which we need anyway. Turns out it is a *lot* cheaper to me. It just does tragedy of commons problem because it assists in making the southern cross more expensive if enough people site offshore for what are local systems.

      The problem really is that they have to get someone external who knows something about copyright, and someone who knows about the net (including how to pirate) to thrash out a working code of conduct that the courts will accept.

      That will cost money. That is what the parties aren’t talking about. They are trying to do it on the cheap.

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