- Date published:
2:00 pm, March 16th, 2009 - 78 comments
Categories: activism - Tags: copyright, dse, internetnz, rianz, Rodney Hide, s92a, telstraclear
It is always interesting watching people and organizations jumping on bandwagons of popular movements. In the case of the section 92A of the new Copyright Act, there was a genuine movement by the denizens of the local net and artist communities that we participated in.
Over the weekend Disk Smith Electronics did exactly that by having a sale promoted as a blackout. Of course they didn’t bother to acknowledge the original, and I’m now expecting to see other retailers follow suit. In the same vein Rodney Hide of ACT did the same thing at the ACT party conference. This is in his usual populist vein that has transformed the ACT party from one of principle to one that is more distinguished by its clowning.
For instance Hide’s clowning around with electoral law by wearing a jacket with an ACT logo and having one of his minions complain about it. That eventually wound up in the hands of the police after the electoral commission found that his supporters claim that he’d breached electoral law.
The reason that Hide probably opportunistically added a call to dump S92A to his conference speech was that the work towards a code of conduct has been stalled. TelstraClear announced a few days before Hide that they were pulling out of the Telecommunications Carriers’ Forum (TCF) attempt to get a workable code of conduct.
The reason for the TelstraClear decision was
It is not our role to make bad legislation work,” he says. “The industry had no input into section 92A. [The draft code] is bad for our customers. Customers and businesses have spoken via blogs and petitions and also directly to us. We have listened and we have agreed.
I think that is unlikely. It is more likely that the blackout and the publicity surrounding it provided a convenient excuse to avoid talking about the costs of running an effective code of conduct system. It is in everyones best interests to establish a faster and cheaper system for maintaining a workable copyright regime in NZ that does not depend on the technical illiterates of courts and parliament to control. Because of the nature of the programming communities and the internet, decisions have to be made by informed people in short periods of time in a summary justice system. These can subsequently be checked on appeal to the courts if required. The question with S92A is who does that summary justice and who pays for it.
RIANZ appears to have been the primary culprit in causing the TCF’s initiatives to fail by short-sighted adherence to the narrow and immediate interests of their members. They appear to have been moderating their position recently. So TelstraClear appear to have decided to attempt to derail the process instead. This was promptly hailed by both InternetNZ and Creative Freedom NZ as the death of s92a. However neither had any suggestion about what would be a suitable process for handling the real problem of the ineffectual control of copyright violations. Matthew Holloway unhelpfully said
The Creative Freedom Foundation wants a reasonable balance between the rights of artists and everyone else. That is why we urge the Government to repeal the law altogether.
Duh! How exactly? At present it looks like he is intent on destroying something without having any useful ideas about what to put in its place, and I cannot find much on their site about alternatives. That is also grandstanding – just like Rodney Hide. While InternetNZ piously wants to continue with developing a code of conduct. They appear to not realize that without the force of legislation behind it, it is a meaningless gesture.
It has been clear for some time that what would be required is an independent adjudication process backed by legislation. The network users don’t trust the ‘rights’ holders to not do false accusations or even what is possible on the network. We also don’t trust the ISP’s to know what a copyright looks like – it would require a lot for a netmonkey who has the power of supply to to suddenly become proficient in copyright law.
It is properly the role of the government to act between the diverse interests of groups in society. Hopefully Simon Power will recognize the spoiler efforts by narrow sectional interests later this month. At present his stance is
Ms Curran raised the issue in Parliament on Thursday but Mr Power said he was not going to pre-judge the negotiations and would wait for the deadline.
In the meantime the TCF should continue their efforts to get a workable code of conduct. This is a unique opportunity to get a workable regime for copyright and the net in NZ. In the end what is required is a balance between the workability of the net and finding a workable solution to the types of piracy that destroyed the sales of Siones Wedding. The current system acts as a brake on investment in creativity in NZ.
Kudo’s goes to the TCF and to Clare Curran for continuing efforts to get this process to work. Brickbats to RIANZ, TelstraClear, InternetNZ, and Creative Freedom NZ as being good at destroying the process and bloody useless at suggesstions to build a good working copyright regime. Then of course there are the grandstanders wanting to jump on the bandwagon – they are clowns.
I think it’s a bit of a stretch to say Dick Smith copied that particular campaign. The idea of a ‘blackout’ is hardly new. You wouldn’t say the S92A protest stole the idea from the Rugby Union after they ran city-wide ‘Blackouts’ around All Black tests.
I realise you’re trying to say that ‘all’ these people are ironically copying it in an attempt to criticise Rodney Hide. But why not just criticise Rodney (and Telstra) for grandstanding on the issue after the fact?
It is my opinion, especially after getting their promo in the mail. Never saw the rugby campaign.
I think I managed to have a go at almost everyone in this post apart from those who appear to actually be doing something constructive. It isn’t something I’ve noticed Rodney ever doing. However that wasn’t the focus of the post.
What was were the appalling lack of interest by sectional interests to get something that would work in preventing something like the Sione’s Wedding pirating. I don’t think highly of the s92a. However I don’t see anything else that is a realistic attempt to fix the problem either.
Not particularly fair criticism IMHO. Actually the Creative Freedom Foundation do have constructive suggestions (expanding the scope of “Fair Dealing”) but it seems unless they support reform which increases restriction (i.e. reform in the other direction), their suggestions don’t appear “constructive” in your eyes.
For the record, what kind of legal reform would actually prevent the pirating of Sione’s Wedding, in your opinion?
Making it easy to suspend or shutdown accounts that are transferring it. Making it easy to block overseas IP’s that are transfering it into NZ.
But only doing it after independently establishing that there is a breach of copyright in progress (which is what is lacking at present).
The trick with that is for someone to be able to establish a claim in a reasonable timeframe, ie hours. It is pointless trying to do something that requires days or months (ie courts) because the transfers would have been done by then.
The reason why it would work is because there is a limited market for the film, ie largely within NZ, so the usual problems are not an issue.
Now tell me what solutions you have?
DRM basically sucks and does nasty things to my machine whenever it is used. Because of the source (post-production) for SW wouldn’t have worked anyway
Frankly I don’t believe this is correct at all.
Let’s say I start downloading a torrent of Sione’s Wedding. You are the © holder and you have a few hours to stop me. You could discover the torrent yourself using a torrent search engine, and you could join it and get access to the IP numbers of the peers involved. You would then match my IP number against the netblock of my (NZ) ISP.
Now you need someone else to “independently” verify this. I imagine some govt agency could run a torrent spying service that would do this. You could just add the torrent through a web-interface and it could track me down too, then they could notify the ISP and require them to cut me off.
You also have to prove to the independent agency that the torrent actually contains your movie, and that you are the © holder, and that the allegedly pirated file is not actually in some way “fair dealing” (e.g. some kind of parody or maybe a review containing extracts from the movie. Or I may have some special © exemption such as apply to the Foundation of the Blind, or …).
You also have to deal with the issue that I myself may be an ISP. I may not be responsible personally. I may be a school or the corporate body of an apartment building. I may be an internet cafe, or a newbie with an open WiFi connection. You may have to notify me and ask me to cut off my downstream user. My downstream user may also be an ISP…
Even if you can do all this, you may have cut me off without due cause. I may not have known the movie I downloaded was © at all. I may have been entirely innocent.
Finally, would such a system actually solve the problem? No, because you would have to find all the torrents … you would have to actively troll all the world’s darknets and file-sharing havens. You would have to (illegally!) download and decrypt a whole lot of encrypted files (almost none of which would contain your © material), just in case they did contain your © material. In the process, you’d leave yourself open to being cut off by the people whose © you were infringing.
In short, I think it’s a fool’s errand. The task is simply hopeless. There is no technically viable “final solution”. And any legal reform which purports to “solve” the problem is pissing in the wind.
I know a lot of people throw up their hands at this and say “there must be a solution”. My response is: “why must there?”
People say “if piracy can’t be defeated by technical means, then how will © holders monetize the fruits of their labour?”. Well, that’s a good question, but it’s not a reason why there “must be” a technical solution. From the point of view of the © holders it’s a reason why a technical solution is desirable, but if wishes were horses …
Interesting post LP. Don’t you think it’s fair to say that everyone in the Labour Party who started protesting about the legislation after the election (such as Clare Curran) but who remained uncannily silent when Judith Tizard was the Minister, are guilty of the same offence?
I don’t think I saw anything from Jordan Carter until much after the election about his vehement opposition to the Bill, but I might be mistaken.
Same problem with me. Unfortunately this act was passed in the dying days of the last parliament, when everyone who is interested in politics was focused on the election. The usual post-election ennui + the xmas break were sufficient to allow the lack of an agreed code of conduct to slip through towards the implementation date.
For that matter I could easily dig back and show your lack of interest until long after the election.
That all said. The issue that s92a was trying to address remains. The really daft thing is that I still cannot think of a better solution than legislation allowing enforcement of a code of conduct. The courts are simply too slow as a avenue.
For once I think that the NACT government actually did something reasonable in delaying it.
I don’t actually have strong views on the legislation LP. I’m just saying that you can hardly go about complaining that Rodney Hide and others are jumping on the bandwagon while so too is the Labour Party.
Clare Curran is the only really visible one in Labour – she has been working to try and figure out a solution. She is also prepared for this round to fail, and so is preparing the groundwork for looking for a solution afterwards.
Wodney has no solutions and has done no work – in short he is grandstanding. When I see him do some work on this, I’ll happily tell the world.
I thought the problem with Sione’s Wedding was DVD piracy – were they also hit by internet-based piracy?
Both from what I understand.
Just speculating here, but overall it just seems like bad idea to make Siones Wedding as a profit venture for a studio.
Small group of appeal, specifically Pacific Islanders, moreso, this group seems to be concentrated in Auckland and where DVD pirating is actively known to be going on.
I like how Siones Wedding is one of the only examples provided in New Zealand as an argument for copyright legislation.
Small group of appeal, specifically Pacific Islanders
I wouldn’t have thought so. Why do you say that?
I remember reading from the movie makers that they they considered Pacific Islanders to be a major group of people who would be interested and therefore that the illegal selling of copies within those communities did a disproportionate harm.
I suppose that a “small group of appeal” might be overstating it a bit but I remember them saying that it was a major group of interest, or something like that.
I think the movie had mainstream appeal too 🙂
You wouldn’t haven’t known this, but it is unfair to paint Rodney as having just started to engage on this issue.
I spoke to him about this issue around a month ago – prior to the high profile blackout. Rodney told me that he though the law was daft, it should go, and he was putting a paper up to Cabinet in his role as Regulatory Responsibility Minister advocating it fails good regulatory tests, and should go.
Now again this was *before* the blackout campaign.
I was surprised that Rodney never publicised his opposition until last weekend, but I presume he was trying to persuade his Ministerial colleagues, and they tend to react better if you are lobbying them quietly, rather than via the media.
So on this issue Rodney has been actually working away behind the scenes, more focused on getting a good result than gaining publicity for himself. Hence I think your post is very unfair.
But I realise you would have been unaware of this, as Rodney had not publicised his previous efforts.
I won’t get into the wider issues you raise, but as someone who has followed the TCF code in great detail, you show a lack of understanding of what it will do if you think in any way it would affect what happened to Sione’s Wedding. Action under the code takes at least three to four months – not a few hours.
With Rodney, in public it was the first I’d ever heard from him on the subject (and I couldn’t find anything on google either). By the sound of it including what you have said, he knows what he is against, but has no idea what he is for. So the remainder of my comments stand.
I gathered that the TCF proposals were a bit lackadaisical. However I was under the impression (?illusion) that there was a procedure for known issues and codecs. For instance mp3’s, avi’s, mpeg, etc.
Besides a code of conduct is not something set in stone. It is something that should get revised regularly to cope with changes in the technology..
My major beefs with the S92A is that the timescale for setting up the code of conduct was grossly inadequate, similarly there was no funding procedure for an adjudicator position and nothing in the act to support that sort of a police force. The idea that ISP’s were capable of the type of judgments required was ludicrous, as was the idea that the content providers should exercise the judgment. I’ve been using the example of a request from the National party in 2007 not to use an image of John Key on this site for copyright reasons to show how fraught the decision making will be.
In any case what we are looking at is the difference between having something in place, and having nothing in place.
I’m afraid that I have zero faith in NACT being capable of putting anything in place of any value. In my opinion it would require an outlay of finance to police it as well as the legal framework to make its decisions acceptable to the courts. We have the latter at present, but not the former.
From their philosophical base, National would tend to look for a industry body. The problem here is what industry? Well there are many industries that get involved in this decision. TCF is just one part of the IT/network. As are the rights holders – but those are fragmented as well. The procedures for text copyright would probably be entirely different again. In any case this would require a legal base so that the courts took cognizance of their decisions – because every decision is somewhat arbitrary.
So my question stands – if not s92a and a usable code of conduct, then what?
At present I see nothing much around in public (which is where I look) answering that question. Care to proffer your ideas?
What’s wrong with what David Farrar suggests (below)?
Well I think 92A starts with the wrong premise – that the appropriate response to copyright infringement should be an ISP forced to terminate an Internet account. This has been rejected by Germany, Canada, the UK etc etc as inappropriate.
What is needed is a notice and notice regime for complaints about hosting or downloading copyright infringing material. In 90% of the cases the notice and notice regime would work. In the small minority of cases where there is a dispute, some tribunal needs to rule on the dispute. If a user was found to have been breaking the law, then current AUPs of ISPs would give them the authority to disconnect the customer if they so desired.
What dpf said, plus Heather Roy has spoke about it (and put out a press release) weeks ago.
Feel free to ask me for comment if you’d like
“How exactly? At present it looks like he is intent on destroying something without having any useful ideas about what to put in its place, and I cannot find much on their site about alternatives.”
Your story was posted on March 16th. Since late December (weeks after we launched) we’ve been advocating an independent adjudicator, a Copyright Tribunal, to resolve disputes. We discussed this to Clare Curran days before her initial announcement. This is not to say that we influenced her opinion but it does point out that we’ve been working on positive alternatives. In early January we posted several stories about it and in late January we opened the idea up for discussion on our forum in the ‘Possible Goals’ subforum.
On January 30th we published a letter to Hon Stephen Joyce and Hon Chris Finlayson (who were speaking in the media about this) in which we suggested positive alternatives such as an independent adjudicator and a notice-and-notice model. QUOTE: “The issue that some artists and large industry groups feel that the courts are beyond them (or “impractical and ridiculous” in the words of RIANZ) is obviously a problem for justice in New Zealand. A notice-and-notice model (where the ISP passes on letters by copyright holders) allows artists to fine those who might be breaking the law and yet retains the onus on accusers to make their case, and – if courts aren’t adequate – then what has often be suggested is a specialised copyright court, perhaps as an extension of the Copyright Tribunal.”
You didn’t ask me for comment and I don’t think you researched your statements.
Yesterday we launched the What About Us video series where artists talk about Section 92A and Section 92C
You will notice that halfway down that page there are some fairly detailed positive suggestions on alternatives. We put a summary of these 3 points in our press release and this was written before I saw your story.
Look, we really need good copyright law and we’re working hard on this. We don’t get paid for this — my wife and I are working in our spare time trying to represent artists. Please don’t describe us in the way you have. We’re not malicious — we’re trying to fix this thing.
If you have any future stories or if want to talk this over you can reach me on 021 02963595. There’s no bad feelings about your story (it’s clearly wrong but there’s no point quibbling over that) and if you do want to talk this stuff over I’m available.
Also, you should know that we’ve been working with lawyers on translating those 3 points into legalese in order to try and reach cross-party agreement.
And another thing (!),
Although the CFF as an organisation are new I’ve talked to Judith Tizard several times about this over several years. As you’re naming me I’d like to make it clear that I in particular did not arrive recently to this debate.
Half of our TCF submission was about urging the TCF to talk to the government 3 changes immediately needed in the law, Section 92A. The other half was about positive suggestions to the Code itself.
Lynn, we already have laws to deal with copyright issues. The Law Society, MED, reams of public submissions, you name it, have all pointed this out and said we don’t need another one, especially a law that allows a third party to interfere with a contract between an ISP and a customer, without due process (yes, going to court).
S92A was removed by the Select Committee for this reason, but reinserted by Tizard with a SOP.
Often, copyright cases aren’t clear-cut “I have the rights” ones either. Judge Harvey says that around a third are thrown out after the rights holder has failed to prove that s/he/it is the copyright holder.
However, I’m pretty sure that you’re violating DSE’s intellectual property rights and trademark by republishing their logo, presumably without asking them for permission. Would you like them to issue a S92C notice to you for this? Or are you just going to take it down now?
I really didn’t think you of all people would support a bad law that can be easily abused.
“Same problem with me. Unfortunately this act was passed in the dying days of the last parliament, when everyone who is interested in politics was focused on the election.”
Right. But many other people involved in opposing Labour’s changes to the Copyright Act have been doing so for several years. More often than not these folks are putting a lot of personal effort and time into participating in what were supposed to be the democratic process. And Labour were well aware of all these issues well before the election.
You seem to have taken a leaf out of Judith Tizard’s book and decided to insult all those who you disagree with or with whom you are not politically aligned.
When I previously commented on this site about the issue I suggested that you did not make it a party political issue. The issue isn’t one that fits into a neat political definitions.
Lynn – I think this post is deeply wrong-headed and I am surprised and disappointed at the argument that you make.
A number of points. We convened workshops in Auckland and Wellington in 2006 as part of the consultations the government was then making on copyright: they were attended by ISPs, rights holders, lawyers, the public, academics – lots of interests. The aim was to help get more informed discussion about the issue and guide the law into a sensible path.
The Copyright Amendment Act was passed in April 2008. We thought we had done our job at InternetNZ: we made strong submissions to the effect that the idea of disconnecting someone was bad law, a disproportionate remedy, would not serve the incentive effects its proponents claimed, and needed to go. The Select Ctte pulled it, and the Government only pushed it back in by SOP at the last minute.
In so doing they put in a poorly worded clause that left lots of ambiguity, and that critically failed to connect this obligation on ISPs to terminate users accounts to the safe harbour protections from liability when they did so.
Ever since then we have been consistent: section 92A is bad law and needs to be repealed. It is simply not true to state that InternetNZ is some kind of johnny-come-lately on this issue, as demonstrated by the above.
We have continued to participate in the TCF working party to draw up a code precisely because we were worried this bad law would be brought into force, and some kind of code of practice might provide a policy that the courts could find “reasonable”. That’s not pious, it’s pragmatic and sensible, given our aim to try and keep the Internet open and uncaptureable.
Now, we have a situation where for reasons known to TelstraClear and explained by them, they won’t allow the TCF to administer a code. Some kind of code might be cobbled together but it won’t have an institutional home, and cannot work as it was intended.
The onus then goes back on the Government, who are responsible for the law, to work with the community through whatever process it chooses to pass more workable law. Or, to leave it, broken as it is, and see what happens. That is their choice.
What is NOT reasonable is to ask us and others who care deeply about this issue to suddenly whip out some alternative proposal. Copyright law is a delicate balancing of rights and responsibilities. It cannot and should not be written by one side of the debate, and we would argue that nor can it be used to protect old business models whose days have passed.
What we’re clear about is that 92A is an affront: it is the wrong remedy and it can’t be implemented in a reasonable way.
InternetNZ and no doubt the others would be prepared to sit down to have a proper conversation about what kinds of business models can work in an environment where the Internet allows perfect, free, instant digital replication of creative content. That is the heart of progress on this issue.
Making ISPs unpaid police, within a confused legal tack-on that seeks to take people’s Internet off them – that’s just not good enough.
And finally, Tim. One of the strange things about being both a political activist and a professional is that you have to find a balance. It was clear that as a Labour Party candidate I was not in a position to speak out about a law I regard as absurd. I had many chances to raise my point of view out of the public eye, and I did.
I’m very comfortable with InternetNZ’s position on this issue and I support it whole-heartedly. Labour’s position is changing and that is good, and I am pleased to see Clare Curran is holding a round table on these very issues next week to try and learn more.
My apologies to you Jordan I overlooked your professional relationship with InternetNZ.
Now that Section 92A is no longer Labour Party policy, what are your feelings about Judith Tizard continuing to argue in favour of what you’ve described as “an affront”?
Wearing my Labour member hat: I’m very happy to have a robust debate with anyone about anything.
Well evidently you’re not, Jordan, otherwise you would have taken a stand before the election.
And dammit, to echo Jordan, I’ve been banging on about the copyright nonsense for years now, Lynn. Your post was wrong right from the start, in other words.
Is this a good point to mention that the TCF represents less than 1% of ISPs as defined in the act? Or that a tiny minority of rights holders are talking with a tiny fraction of the ISPs to discuss a matter that affects all rights holders, all ISPs, establishes a process of guilt by accusation, has the media companies wanting to be judge and jury, establishes a disproportionate punishment, and does not represent the users? I thought so.
For the s92a issue. Let me say that I’m the late comer to this specific debate. Of course I have been pointing out for a decade or so exactly what the problems are going to be with digital technology and copyright to various politicians. Also how ineffective most recourse’s and law changes are likely to be.
My actual issue with all this is that it took over 2 years to get the current copyright bill in place and a damn site longer with people saying that it was useless. The likelihood is that it will take another decade before anything else gets introduced (if we’re lucky). That means that the existing problem remains the same. There is no effective protection for clear cut cases of copyright violation where a persistent offender ignores complaints.
There is a problem with the current solution of enforcing the current copyright regime for persistent offenders. The problem is called the courts.
By the time that they hear a civil case, typically two years have gone by (as I can testify). Even a contested criminal case will probably take at least a year in my experience (all those cases that the police have lost to Rochelle).
By that time… The technology has changed. The net has changed. The machines have changed. Probably the offender is offshore. The result of the case is a forlorn look at the past. The money has been made or lost already. It is pointless for everyone apart from the lawyers and their bank accounts (as I can also testify).
Injunctions are expensive (ask DPF) and take time as well. If you had to get an injunction against every individual that pirates a MP3 or video, then you have effectively lost any profit margin.
Notice-notice is effectively what we have now. Over the years there have been a number of times that the ISPs or domain people have contacted me about something or another for one site or another. Sometimes people contact without going through the ISP’s. If I simply ignored it then the complainant would have to cough up for an expensive injunction. It is good for most people, but it really just provides a opportunity for anyone willing to ignore them.
That provides a real disincentive for people (like my partner) who make thievable content. There is no profit in what she does (documentaries) as it is. Widespread pirating would ensure that there are only costs. That means in the long run that the only way to make money out of the content she is involved with is to ensure that digital versions are never released. It is a pity that everything is digital – only requires one person…. Nett long-term effect – content will not get produced if it costs anything, like going where climate change is happening. So there will be no documentaries that are not simply navel gazing.
Now the point is that we can probably all recognize blantant copyright violations. There are other cases where the copyright is more ambiguous (like the DSE logo above). It actually doesn’t take much (if there is a big fast stick) to decide if there is a prima facie case. This is the role that the police take in our criminal system.
As has been pointed out by Juha, we actually have enough laws on copyright. What we don’t have is an effective enforcement because the courts are useless after the fact with the current digital tech.
What is required is some kind of ‘police’ to establish a prima facie case and take preventative action. They can (like the police) hear the views from both parties and make a decision in close to real time and take the appropriate action. That would have deterrent effect. Otherwise why bother with having any copyright law at all? It is completely ineffective because there is no real deterrent.
The real question is where do we get the ‘police’ from and how do you make room for their powers inside the law – that was the rationale behind s92a from what I could see. But the ISP’s are not the right place to put a ‘police’ force in (and the police have enough issues with handling technology as it is). I’d actually describe them as pretty useless from what I’ve seen. This leaves the various organisations that have legal powers – things like the SPCA as a model.
This post was basically a bit of a stir to say: “Now that the s92a is effectively dead, that is still not where the issue ends. Where do we go to from here?”. What I see is a lot of people concentrating on killing s92a (especially the actions of RIANZ). What I don’t see is any plan for putting something better in place that is likely to be effective. What I see is a lot of suggestions that are likely to be ineffective because they have nothing in them that is likely to operate as a deterrent.
Juha: The DSE graphic here is a case in point about the vagaries of copyright law. This was embedded in an e-mail that DSE sent to me. There was no copyright notice that I saw. It’d be pretty easy to argue that they gave me a gift and I shared that. That was specifically the reason that I put it into the post to illustrate the point.
Even the rightsholders admit that notice and notice will work in 70-90% of the cases and it is the strategy that has just been recommended in the UK. We also all know that hardcore infringers are not going to be caught out by any termination policy and will only respond to potential criminal or civil court action. Marry up those two facts and the benefits that internet connectivity brings and notice and notice starts to sound like a viable alternative. I’m sure if you asked any policy maker whether a policy which worked in 70-90% of the cases was worth it and where there were existing laws to catch the rest, you’d get a nod.
“Injunctions are expensive (ask DPF) and take time as well. If you had to get an injunction against every individual that pirates a MP3 or video, then you have effectively lost any profit margin.”
The S92A TCF policy won’t prevent this (it takes months) and S92A is not dead (unless you know something I don’t).
If you’re going to talk about me or the CFF in the future please feel free to contact me. You now have my details.
The Sione’s Wedding example used as justification in this context is only a marginal step better than the widely reported FUD being put about with the video store petition. In fact, the very article that you linked to makes it clear that infringement of Sione’s Wedding was NOT an internet issue.
“South Pacific Pictures managing director John Barnett backs anti-piracy moves – he lost out dearly from pirated copies of the movie Sione’s Wedding – though not on the internet.”
Funny though, for good reason, in an offline World, we don’t expect Otara Market (where DVD copies of Sione’s Wedding were sold) to police and shut down alleged copyright infringers. It seems that this new fangled internet thingy is so dangerous that we must have different rules than those which seem logical and fair in an offline World.
One other point – the TCF code is effectively an arrangement which will suit telco ISPs (not the vast number of ISPs under the definition in the Act) and 2 or 3 rights holder representative organisations. It is very useful for that purpose but it will do nothing for everyone else and is completely misrepresented as a cure for the ills of s92A (or in fact the rest of s92, which is equally as bad). DPF, CFF, Jordan Carter and others of us who have been at this for a (very) long time, have already offered solutions and it is time that those were looked at seriously, without the s92A sword of Damocles tainting any debate.
The point about the TCF proposal is that it had a prima facie case built in. That just required a body to make a judgment on the basis of the results of a notice. But it required the equivalent of a police force. The ISP’s aren’t the right body – I wouldn’t trust them to agree on a standard behaviour, they are too competitive.
What was required was a paid body that could make judgment decisions (ie the police) in real time and take the appropriate action. Waiting for a decision in a ‘court’ (including the ‘copyright court’ or the TCF procedure) was too ineffective in that it provided no deterrent effect.
As poor as S92A was, it provided room for that. The opportunity was not taken up, in my opinion, because people didn’t want to talk about paying for it.
I suspect that nothing much will happen now for at least 5 years
@ lprent – you said “What was required was a paid body that could make judgment decisions (ie the police) in real time and take the appropriate action. Waiting for a decision in a â€˜court’ (including the â€˜copyright court’ or the TCF procedure) was too ineffective in that it provided no deterrent effect.
As poor as S92A was, it provided room for that. The opportunity was not taken up, in my opinion, because people didn’t want to talk about paying for it.”
Sorry, but that is also unacceptable to film and TV rightsholders, who are suing iiNet in he Australian Federal Court for doing just that (iiNet’s policy was simply to refer allegations to the police). It certainly was not what Judith Tizard had in mind when she re-introduced s92A at the behest of the related New Zealand rightsholders either. And, it is hard to see the logic behind introducing a law which is aimed at forcing ISPs to receive allegations and then send them to the police when rightsholders can already do that themselves and seem perfectly capable of taking action against flagrant infringers if they so wish (e.g., the Auckland internet cafe owner).
Conversely, if you have ever tried to get the police involved in a civil copyright infringement issue you will know that that is no easy task since, understandably, they feel that they have more serious matters to focus their scarce resources on.
Finally, you seem prepared to accept that all copyright cases are susceptible to “real time” adjudication. As Juha and others have pointed out above, that is simply not correct. For example, we have no lesser authority than Judge David Harvey in his TCF submission pointing out that some 30% of copyright actions fail through lack of proof of the basic elements of the infringement and that does not even cover fair dealing defences etc. I am surprised that you and others seem so willing to run roughshod over the presumption of innocence.
I didn’t say the ‘police’. If you read my comments then you’d have seen that I have very low expectations of them. As I do of the ISP’s.
What I said was we should have a police style of body that is capable of making judgments as to if there was a prima facie case, and then take the immediate appropriate action. There was room in S92A for that. It can then be argued out in whatever the appropriate forum is.
If you you had read my comments, you’d have seen that I’m aware of the disputed copyright problem – look at my comments on the DSE logo. However this is normal for a police body to handle as well. They are expected to collect evidence and decide what action should be taken. One of those actions is to pass the decision to the appropriate ‘court’.
I’d point out that we don’t expect our police to be lawyers or to even know the law well. They have to know what happens in the majority of the types of cases that they handle. The same applies around the net.
This simply isn’t true.
The Creative Freedom Foundation were one of the first to publicly adovocate for an easily accessible adjudicator specialising in copyright infringement.
CFF submited (and encouraged their members to make submission) to the Law Commission, asking for the juristiction of the existing Copyright Tribunal to be expanded beyond licensing disputes.
Brenda, good point. We also provided analysis a forum on the TCF submission, and encouraged people to contribute feedback. We asked people to contact Simon Power to express their concern about this law. We have been doing a lot to help fix this mess.
This is a more nuanced effort than you would hear here however at The Standard.
Really Lynn, you should modify your story or stand behind it.
Nope, I think that there was an opportunity squandered. I do not think that it will be feasible to have a similar opportunity for at least 5 years and probably closer to a decade.
People focused too much on the deficiencies of S92A and insufficiently on its potential to define a framework. The biggest single problem with S92A was the teeny small timeframe to come up with a framework with such a diverse group.
Lynn “nope” isn’t good enough. Your statements about me and the CFF are factually wrong.
Contact Clare Curran herself if you want to hear how we’ve been recommending due process, or I’ve given you at least a dozen of examples that can be verified online that refute what you say. If you actually believe what you’re writing then again please feel free to contact me on 021 02963595 to discuss any of the examples of positive suggestions and replacement models that I and others have posted in this thread.
Your final desperate defence of your article that some mythical “people” are insufficiently focusing on replacements is a cop-out.
We’ve been working very hard on this. You owe me and the CFF an apology.
Brenda, that may be the case about the adjudicator. However I’m arguing that is not going to be sufficient.
What the process needs to be viable is some kind of ‘police’ who can take evidence and make immediate decisions about a prima facia case and take immediate appropiate action.
That costs (as does the adjudicator). So when I look at the discussions I look for the discussion about money. I can’t see any. If people aren’t willing to talk about who pays for anything, then politically it is unlikely to happen.
Incidentially this is the problem with S92A as it is worded and why I opposed it going ahead without a code of conduct without a reapportion of the costs. It effectively threw all of the cost onto the ISP’s who have no expertise or incentive to do a good job in this area.
The TCF policy does talk about who pays, and we even mentioned this in our submission to the TCF.
As far as prima facie decisions we have infact advocated for this (mainly due to compromised machines, as 25% of computers are, that may need to be immediately restricted). This could be a function of the tribunal and this is what we have advocated.
You’re still accusing CFF of being “intent on destroying something without having any useful ideas about what to put in its place”…
You are saying that advocating a copyright adjudicator be established isn’t “useful arguments”. CFF have had this position since at least December.
meanwhile you also claim “It has been clear for some time that what would be required is an independent adjudication process backed by legislation.”
you don’t make sense – and you owe an apology to the CFF.
Sione’s wedding was leaked by someone with access to a preview copy, and sold on physical disks at an auckland market — Judith Tizard often heralds this as something that interent disconnections can somehow solve, when there was no internet involved in the sorry incident.
Yes, that was when the Net was slow as. It is a bit faster now. In the next incident of its type, you’ll find it on a streaming server pretty damn fast. Now look ahead to that FTTH (100MBit+)….
There is still no effective deterrent to people just pouring it out from a streaming server from offshore. Stopping people from wanting to receive it is.
That is a real disincentive for people to create content. all it requires is a in-progress DVD to go astray.
Yes but you wrote the “types of piracy that destroyed the sales of Siones Wedding” when it’s known that the type of piracy that destroyed Siones Wedding wasn’t to do with the net.
Stand behind what you wrote or modify it. At the very least you’ll probably find that the relief of cognitive dissonance makes it worthwhile Lynn.
Piracy didn’t destroy Siones Wedding – it grossed very well at the box office.
Sorry – I wasn’t meaning to reinforce Lynns argument.
Yes but not as well as was expected. I wonder why. It also didn’t make the profit that was expected. That means that there is no money to go into the next film.
Don’t look solely into the past. Technology changes *fast*. I’m a programmer and I spend about 25-30% of my time simply keeping up. Any expectation that a lawyer or a judge or a politician would be capable of understanding what is likely to happen over the next 10 years in my area is nonsensical. In programming it isn’t a matter of if something is possible usually, it is a matter of if you want to write it.
If you are going to put a law or legal process in place around the tech area then it should be flexible enough to handle what happens in 10 years – not what happened 5 years ago. That means that the legal basis will be general, and will have some kind of internal adaptability. That is what S92A offered, an opportunity for the people in the Net and the rights holders to define what the process should be. They singularly failed to do that.
So, in order to prevent what happened to Sione’s wedding (a box office success) we need to do what exactly?
In fact it is way longer than that! The process started in 2001 with an MED paper, and there was probably discussion even before that.
I think this story has shown exactly who is jumping on the bandwagon.
Ha, please note the Window title of the page, “S92A: Opportunists jumping on bandwagons at The Standard”
Reread the article..
The opportunism part was mainly referring to Rodney Hide and DSE. The rest of the post was my opinion about the lack of progress this month in getting a workable regime out of S92A. It included my ideas on what kinds of things should be on the way forward.
What I said about you was that you were grandstanding. Rather than continuing to work for a solution, you’d given up without saying what you thought a viable alternative was. That still stands.
For all of your display of hurt feelings here, I haven’t seen you say one thing that looks like a focus on the future.
Are you even interested in building a way of making copyright workable this century? At present it doesn’t look that way to me from what I’ve seen.
“What I said about you was that you were grandstanding. Rather than continuing to work for a solution, you’d given up without saying what you thought a viable alternative was. That still stands.”
Nonsense. You have heard at least a dozen examples of positive suggestions in this thread.
When the CFF suggest tribunals since December (which you apparently agree with), along with giving them sanctions such as fines and disconnection to allow proportionate punishment, as well talking about the difference between ‘CSPs’ (conventional ISPs) and this laws definition of an ISPs and how the costs associated with identifying customers is different (CSPs can corroborate evidence whereas ISPs typically cannot and so the data forensics approach must be quite different) and how this affects the design of a replacement law then you have no legitimate argument left that the CFF aren’t trying to fix this.
It’s ok to be wrong, just fix your story. The current wording is completely misleading. I don’t dislike you Lynn, just please fix this. Again – you can phone me to talk this over. I’m quite pleasant, I assure you 🙂
I do have my feelings hurt by your article. I’m not apologising for that, but I think that you should.
I’m a programmer. That means when I look at a problem, I look at all of the possibilities and figure out how to close them. In some ways it is very close to legal reasoning.
In the design role I get very sensitive about closed and open scenarios. The former is where you can see all of the possibilities usually because you control the environment. The latter is where you put a process in place that handles the exceptions, including those you haven’t thought of yet – that is the case with the digital age and copyright.
Most of the solutions I’ve seen so far don’t handle the future increases in speed and the future abilities of reproduction in the networks and code running on it. I think that S92A was an attempt by technophobes to put in a legal framework to set up a process to control the problem. Because the legislation was not particularly prescriptive that left a lot of room for future enhancement. For one reason or another (mostly lack of time) that opportunity to build that process was not taken up by either the rights holders or the network operators.
I consider that announcing that the process of putting a process in place was dead before the deadline was daft, bearing in mind that there appears to be no other coherent plan to address the underlying problem of enforcing copyright. I think it would have been better to have looked for more time to bring the recalcitrant to the table, or proceeded on without them.
Announcing the death of S92A it did was further entrench the status quo of copyright law. Because bearing in mind the fuss over this section, who is going to be brave enough politically to work towards and alternate solution. The status quo is unacceptable, however I suspect that what S92A has done has stopped anything significant being done about copyright violations for another decade.
So no, I won’t apologize for having my opinion.
I am however grateful for your leadership on stopping the legislation going forward without a workable code of conduct. That would have been probably more of a disaster. However that is largely a negative rather than a positive contribution.
You’ll probably see me more on this issue. For instance I’ll be heading down to wellington on tuesday for the meeting Clare Curran is putting together.
I’m a programmer too. You can find my software used by most government agencies, included in Debian/Ubuntu Linux, and so on. I do a lot of work with publishers. I’ve worked on the Egov Web Guidelines (now called the Web Standards) to do with disabled people accessing the internet, and I write a lot of proprietary software as well as open source. I’m also a graphic designer and I designed most of the CFF site.
I understand what you mean about the analytical mindset that you get from programming. Law does need to consider the off-by-one errors too 😉
We have certainly included or addressed issues such as the increases in network/comp speed (Eg. things like onion routing/Tor becoming more widely used, mesh networks) in what we’ve been saying.
There’s no need for this nonsense any more. You really should change your story. Your description of me and the CFF is completely wrong.
We probably have a lot in common. Again, if you want to learn who you’re talking to just give me a call. I’m not a jerk, I assure you — if you’re in wellington some time I’ll even buy you a coffee.
Just clean up your mess would you? Please.
Don’t be stupid. I’ve been talking about this stuff for almost 30 years. Since the first time I started playing with networks and programming at Waikato in 1980. I’m also s student of history and science fiction. The various law course I’ve taken and having to put up with my ex going through law school have given me an appreciation of the legal systems and how far they lag behind reality. Being heavily involved in political groups for the last 30 years gives me an idea of the political realities.
If you want to live in fantasy land, then I can’t stop you…
Lynn, let me get this straight… you say that because the court system in your opinion is too slow, we should delegate the enforcement of the law to private agencies who don’t even pretend to be objective and who are affiliated to overseas interests.
Is there anything else that could be “speeded up” in a similar manner? Private police forces perhaps, who are entitled to act as judge, jury and executioner? This is how RIAA in the US operates – it “detects infringement”, sues whoever for massive amounts of money because the law there allows it, even though the song in question is only worth $1.99, and then offers a settlement. In any other language, that’s called extortion.
You need to step back and think about what you’re so fervently agitating for. Again, I’m really surprised that you’ve taken this position.
Nope – who would trust RIANZ or something like BSA.
For its own self-defense the local net should help set up a body to maintain a respect for copyright on the net. Effectively something recognized in the law in the same way that organizations like the SPCA are in their own area. That they are able to take immediate action on prima facia infractions, bring criminal charges against offenders, or put to adjudication for matters that are unclear.
As far as I’m concerned the current state where copyright is effectively a dead letter where the net is concerned is pointless. Either we get rid of copyright or we enforce it on the net.
If agreed as a code of conduct that was feasible under S92A.
The question in my mind is how to fund such a ‘police’ force.
BTW: good to hear from you again.. Must be 10 years plus..
Are you even interested in building a way of making copyright workable this century? At present it doesn’t look that way to me from what I’ve seen.
Well, maybe you should do some more “seeing” before you pretend to write authoritatively on the subject. The inaccuracies and misrepresentations in your article have been pointed out enough times by many who are not jonny come latelys to the debate.
This includes your ill-tempered attack on Rodney Hide. I am not a natural constituent of ACT but it would be fair to say that Hide has been involved in the use and advocacy of FOSS for many years and that he should take the position he has on Copyright is no surprise at all.
Yes he may have been – as DPF noted above – I haven’t seen it.
To date I haven’t seen him come up with any suggestions about how to bring copyright law into the 21st century.
It is no effort to be negative about something (the trolls around here display that routinely). It is a lot harder to come up with workable suggestions. Even harder to push them through to workable form.
I haven’t noticed a strong tendency of Hide or ACT to do either of the latter two.
What I said about you was that you were grandstanding. Rather than continuing to work for a solution, you’d given up without saying what you thought a viable alternative was. That still stands.
Lynn, that’s both inaccurate and unfair to Matthew. I’ve been impressed by his approach, and accusing him of “grandstanding” is absurd. I’ve tried to work out where you’re coming from here and I’m stumped.
Perhaps I’m wrong. I don’t know the guy, so I have to go on is what I can see on the net.
But disposing of an S92A with all its flaws without having some idea of how to how to proceed to get a workable copyright regime on the net seems pointless to me.
Anyway – gotta go out.. I’ll see where this gets to later.
But disposing of an S92A with all its flaws without having some idea of how to how to proceed to get a workable copyright regime on the net seems pointless to me.
Well, no. Not really. It’s bad law, pure and simple.
However, many of those who oppose it do have alternative solution – I know the CFF, InternerNZ, ISPs and many others have already been putting them forward. Once again, however, you chose to imply that they don’t. That’s disingenuous, at best.
Personally my solution diverges from many of the above advocates. Speaking as a significant holder of Copyright assets, I would like to see some real economic analysis on just how broken Copyright legislation *actually* is and on how broken the rest of the economy becomes if we chose to break the Internet at the behest of RIANZ and their friends. I’d quite like MED to do their job, just for once. Then maybe we can have a discussion about whether legislation changes are required.
What powers do the MED have?
Copyright law is probably OK as far as I can see. The enforcement of copyright and remedies available is pathetic.
Copyright depended implicitly on the means of production being constrained – ie there being barriers to entry.
In another but related context Dancer put up a post about it (and copied the article rather than linking to it!) –
Death knell for print media? a few days ago with an article from The American. As the author of the article pointed out the blogs depend on content from the print and other media. So what is happening is a tragedy of the commons problem. How can people make a living creatively if they are in an environment that provides no protection for the fruits of their effort?
The copyright legislation is broken because there is no effective route to enforcement in a timely and relatively cheap manner. The current law pretty much means that the rights holders have to pay for all of the enforcement (or rely on institutions like the police who have no significant expertise). The costs of remedy may (and probably will) exceed the costs of producing the content or any profit from it.
What I’m saying is that these proposals (those I can see) do not appear to me to be effective because they do not operate in the same time frame as the people who violate copyright in a digital age. This is a problem that is going to get a lot worse because the way that the technology is trending is to make it easier and easier to reproduce more things and always at lower costs.
What I see generally is people trying to fix problems of the past, and not looking forward to developing a framework for the future. I think that a greater risk to the internet is finding that there is insufficient content quality because it is impossible to make a living at it. Sort of what has been happening to TV – who watches it anymore?
“What I’m saying is that these proposals (those I can see) do not appear to me to be effective because they do not operate in the same time frame as the people who violate copyright in a digital age.”
This isn’t true. Our proposal does infact describe the necessity of prima facie decisions. And what you’re now saying is quite different to that of your article.
Please fix your story.
Copyright law is probably OK as far as I can see
The copyright legislation is broken
Make up your mind.
The problem with your argument (apart from lack of consistency) is that whilst you demand immediate resolution for alleged infringement this demand is inconsistent with the rights of those who might be accused of infringement.
If you want funding for better enforcement of existing law, then lobby for that. Don’t try and make up the shortfall by creating bad law which contains all sorts of horrible side effects.
Ummm I see that you ignored my question about any powers that the MED has.. Was that just a diversion?
There is a difference between defining what transgresses the law and the provisions for implementation of the law (ie remedies). The first is probably ok in the copyright act. The second is pretty useless because in a lot of cases the cost of protecting copyright in a digital age is likely to be more than any revenue. That effectively makes the provisions of the act largely worthless against people who refuse to change behavior.
Since both are mainly embedded in the same act, there is no inconsistency. In your latter quote you carefully left off the ‘because’ part of the statement which tends to place you as a idiot with a selective quoting fetish.
If you want funding for better enforcement of existing law, then lobby for that.
What I’m interested in is having a body that is able to enforce copyright protection. In the absence of a enforcement body set up under s92a there is nowhere to apply funding to. As someone further up the post comments noted, the police have bugger all interest, and also have limited jurisdiction.
So your statement is meaningless, as is the rest of your comment
You seem to be after a body that can enforce copyright in real time. That is not going to happen. It’s just not. It’s a fond hope and nothing more. So you have this unrealistic desire, and anyone who doesn’t share it you therefore see as “grandstanding”, “pointless”, etc.
Ummm I see that you ignored my question about any powers that the MED has. Was that just a diversion?
MED has plenty powers, they even seem to be setting themselves up to be an enforcement agency for ACTA.
However, what I said was:
I would like to see some real economic analysis on just how broken Copyright legislation *actually* is and on how broken the rest of the economy becomes if we chose to break the Internet at the behest of RIANZ and their friends. I’d quite like MED to do their job
For a department packed full of, er, economists, they seem to do sod all in the field of economic research which one would think is a pre-requisit for giving advice to Ministers.
So your statement is meaningless, as is the rest of your comment
…and my phone had just ran out of batteries. Sorry about that.
I do hope it’s clear now that when you wrote “it looks like he is intent on destroying something without having any useful ideas about what to put in its place, and I cannot find much on their site about alternatives. That is also grandstanding” was entirely wrong.
We seem to agree on 99% of a solution so I don’t see the need for this kind of talk. We need to fix this law and considering we agree on most of it let’s just work together, eh?
Yeah and Telecom managed to get my server ADSL back on line…
So the mail server is catching up and I’m reconfiguring from the jury rigs that I’ve been forced to use for the last week. Plus a *long* discussion about a contract. Looks like I’ll have to get back to work again..
I’ll write an update after I get that done… You want to write a guest post?
We just announced this today, ‘CFF announce aims to help Fix Section 92’