- Date published:
9:25 am, April 14th, 2011 - 37 comments
Categories: business, copyright, national - Tags: blackout, copyright, guilt by accusation, s92a
Congratulations – you’re an internet pirate! What’s that you say? You’ve never plundered anything on the internet? You don’t which end of a cutlass to hold? Too bad. You’re an internet pirate anyway. At least, you are if a copyright owner accuses you.
So what’s going on here? The last Labour government introduced a copyright bill containing the infamous Section 92a. If a copyright holder accused someone of violating copyright (e.g. copying music files) their ISP could be required to cut off their internet access. In February 2009 there was a widespread “Blackout” protest. The Nats scrapped s92a and began work on a replacement (“The Copyright (Infringing File Sharing) Amendment Bill”).
While an improvement in most respects, there is still significant opposition to the new Bill, which can still require net access to be cut off “by the minister by an order in council”. Even worse, there is still an assumption of guilt by accusation. The indefatigable I/S sums up:
The return of guilt by accusation
The government is abusing urgency again, this time to ram through the final stages of the Copyright (Infringing File Sharing) Amendment Bill. The bill repeals the (never implemented) section 92A regime, which provided for guilt by accusation, and replaces it with a new regime providing for… guilt by accusation. An SOP from the government softens the language here a bit, so that an infringement notice now merely creates a presumption of guilt rather than being conclusive evidence of it, but that’s not much better. it also makes little sense. As IP lawyer Rick Sherra points out, there’s no logical connection between the ability to fill out a form correctly, and the material in it actually being true.
The Bill of Rights Act affirms that everyone has the right to natural justice. This law would deny that, replacing it with a stacked system biased in favour of the accuser. And when overseas experience [PDF] has shown that a high proportion of infringement notices are issued in bad faith, by people with no claim to hold copyright or even by businesses targeting their rivals, such a system is actively dangerous, and a recipe for injustice.
Criticism has come from all sides of the political spectrum. Here’s part of DPF’s comment on the Bill when it was introduced last November:
Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof. Different rights holders may establish different levels of reliability. I hope the Government will consider amenemdents to this at committee of the whoel [sic] stage.
Labour’s original Bill on this was a pig. Now the Nats have stuck some lipstick on it and made it their own. But sure enough it’s still a pig. There are already calls to repeat the 2009 blackout protest. (For all you Twitter fans apparently “#blackout has started trending”.) I’d say the Nats are going to have a fight on their hands.
Update: Tech Liberty has a good summary of the strengths and weaknesses of the new Act. Plus Clare Curran on why Labour voted for it.
Update 2: Kurt Sharpe (for theblackout nz) put together this parody of National list MP Katrina Shanks’ speech on the Bill. More here. Ouch!
Could someone clarify the copyright thing for me? I get the music and movies thing but what about say a series of lectures on a topic?
I’ve downloaded a couple of lectures by David Harvey on the dialectics of capitialism to listen to when time permits as they’re each two hours long – am I infringing?
Would you normally have had to have paid for the specific recordings of the lecture that you are listening to? If yes, then you’re most likely infringing. If no, you may still be infringing – works that are free do not necessarily have no restrictions on use or distribution.
If the specific recordings of the lectures that you’re listening to are under Creative Commons or other such licensing (copyleft) then you’re almost certainly fine.
Lanth is right.
If the work (recording, film, whatever) is covered by copyright you need permission to copy it.
The permission to copy is usually obtained by purchasing a license to make (usually one) copy/ies, which is what you’re actually buying when for example you download a song from iTunes or Amplifier. However the copyright owner can choose to license their work in all sorts of other ways.
Are the David Harvey lectures released as a free podcast? Then you’re fine. That’s an example of a copyright owner giving away free licenses for those works.
Thanks Lanth & felix , I’ll have to check it out. Might end up having to listen to them in “real time”.
I dont suppose that the studios and record companies would be compensating us by making their entire back catalogue avalible for purchase in our stores, which is why I indulge in file sharing.
After all, you cannot go into the nearest sounds outlet and ask for Les Baxter’s acclaimed 1952 album, ‘Ritual of the Savage’.
And if TV channels gave a fair showing to a good range of TV shows, including quality dramas, and ones that foreground a wider range of characters, communities and issues, and showed some of them fairly soon after they are first aired overseas, maybe less people would be tempted to download them illegally.
TV3 pulling one of it’s highest quality dramas (The Good Wife), without warning or explanation, is causing some of the commenters on the show’s message board on TV3’s site to look to illegal downloading. This show is one that provides food for thought with a range of complex ethical issues and behind the scenes political machinations and manipulations. And I hear that the pulling of this show will be discussed on Nine-to-Noon on RNZ in about an hour.
These media corporates, like Nat’s mates at MediaWorks, just want as much control as possible on all platforms, so they can maximise their profits, rather than cater to and be answerable to what they are providing (or not) to a wide range of citizens.
TV in this country is crap. The TV companies treat their viewers like shit. And we let them. This is one reason that people go off shore to acquire their tv viewing, and there are some very good programmes out there, but we wont see most of them for years and some if ever. Tv like the Bones is fairly up to date, but some others will be years till we see them, and then in a late night time slot like fringe or Sanctuary.
Sanctuary was shown on TV? My son recommended it, so I’ve bought the DVDs. (I’m on dial up, so no file sharing for me, even if I would have!)
The first 2 seasons are great and they have just funded season 4. But thats off topic as is this comment Dial Up?? Uggg Sorry but i have a lot of bad memories of days gone by, about windows 3.1 time, when you really had to know your modem and sound card settings. I started life in the BBS world before the internet was released to the masses, and you really had to know a lot of handy people back then for the ‘good’ stuff, usually downloaded after midnight from a bbs in the US for the latest games etc speeds were 1200 or in our case we had a 2400bps modem, but with the call costing megabucks a min we had to write login scripts to get what we wanted as it took less time. and you could copy tapes no trouble yep we were ALL pirates then… back in the good ol’ days.. These modems were about 5 steps before the 57.6 thing you have now.
OOPPS age showing.
millsy completely understand your stance as I tried for ages to get ‘Baghdad Cafe’ on DVD and was able to finally get it through Real Groovy in Wellington.
Carol, yes Sunday night is one of the few times I ever watch TV because most times it’s complete shite and the includes the news, or more correctly infotainment.
Why did Labour vote for this?
I’m appalled they supported it.
Frankly, so am I. I hope one of their MPs gets around to explaining their position on this as soon as possible.
Clare Curran bends over backwards to try and explain why supporting this was a Good Thing:
Thanks for that. Curran makes a good case. It’s ugly, pramatic politics – a bad law with a compromise for Labour’s support, or a worse law without Labour’s support. Either way we get the law.
But Curran’s justification focused on the issue of disconnection. For me the main issue is guilt on accusation. I hate to see Labour associated with supporting such a law.
For me the main issue is guilt on accusation. I hate to see Labour associated with supporting such a law.
That is also my issue with it as well. I have a lot less hassle with disconnecting people if someone is required to prove that there is an issue.
It is exactly the same issue about why our server has been located outside NZ. It effectively removes any major probability of people from lodging malicious complaints against us with our hosting companies and causing them to restrict our access without having gone through any evidential process.
As far as I can see there are no penalties for mistaken or malicious claims and no requirement for proof.
Perhaps we could just start a movement to complain regardless of actual ownership of copyright (I can’t see where proof of copyright is required to be seen). Start with complaining about the copyright organisations who have been campaigning for this? It would rather highlight the poor nature of the law wouldn’t it if one of those was disconnected… If they weren’t then it would be a case of asking about the variable enforcement of the law.
Curran, in response to the (flood of) criticism at Red Alert:
It does not make NZers guilty upon accusation.
I wonder if she’s even READ the law she just voted for.
If Labour were there for the benefit of NZ there’s no way that they would have supported this law at all. The only option they had/have was to promise to repeal it as soon as they get in power.
Gareth Hughes’s proposed amendment would have removed the disconnection penalty. The amendment was rejected 111-11.
Labour voted AGAINST it.
They voted against the amendment and for the law.
Labour has been drinking the USA FTA Kool-Aid as much as the Nats have, unfortunately. That was very clear prior to the 2008 election. The two big parties cannot be relied up on to protect NZ interests or sovereignty on cultural matters or intellectual property matters, given how poorly most of their MPs understand these issues. The USA wants to allow its corporates to own and monopolise popular culture globally for the next century and more. That is clearly not in our interest. Copyright should be wound back to the 14 years it was in the 1920s. The life+95 years for people and 120 years for corporations now applying in the US is very bad law that DESERVES to be ignored and violated as often as we have time to do it.
Apparently “the infringer” is the person who has their name on the account. Our house has 4 adults in it, each with their own computer. For the other three, I have no access – or right of access – to them. Should I receive a notice naming me as the infringer, how would I handle that? Assume I’m not IT savvy.
Seems to me this law would place me in the position of having to tell everyone else in the house they can’t use the connection that is in my name….whether they were guilty or not.
This law looks like an ass already.
Could you hide by using a blind trust to register?
Excellent rd 🙂
I can’t help but feel such laws will be used wrongly by an overzealous regime.
wait til blogs like this are deemed inappropriate and free speech
The best thing about being an internet pirate is the rum and the cool hat.
Yeah but virtual rum is quite tasteless – I downloaded some and tried it.
This law only effects people ‘doing it wrong’. IE downloading stuff from public sites. It really won’t do jack.
Patrick Gower’s report on TV3 was exactly what you’d expect it to be….
Key was as unconvincing as ever.
They could just use library footage every time they need a comment from him, because they’re always the same:
Fixed grin, and “Er, to the besht of my knowledge, No”.
Still, good to see a bunch of Nats showing themselves up in Parliament.
I’ve always thought our copyright law should be quite simple.
1. As long as you own an original copy in some format (and original copy includes a recording off television) you should be free to make as many copies as you like in whatever format you like for your own personal use in your own personal equipment (ipod, PC, motor vehicle, etc).
Once you own a copy you should be able to do with it what you like.
Format shifting should not be construed as piracy. If I want my record I own on cd, or want to stream my movies via my Xboxes to every room in the house I should be able to have a divx copy to do this. If I want to put every Beatles record I own onto one DVD and have my own Beatles radio station for the day blasting (or gently wafting) through my stereo I should be able to do this.
I already own the record or DVD. Why should I have to buy another one because I want to listen to or watch it differently.
If you get rid of your original you must get rid of your copies.
2. Unless we want to have a technological elite who are the only ones who can make copies e.g. not everyone would have the knowledge skill or gear to transfer their LP’s to mp3 format – then how you get that copy is irrelevant.
If you own an original copy then how you get the format shift could be by getting your equipment and doing it yourself or simply by downloading it which is much more convenient for most. For christ’sake Sony, Microsoft, Apple, IBM and so on and so on sell equipment specifically designed for you to copy your cd’s to. Hypocrites – sell you the gear and then say it’s illegal to copy to it.
3. With TV shows and music that isn’t here yet or no longer available, it should be fair use to acquire this early. As a modern consumer I don’t need to be at the whim of the TV executives as to what I will get when – or if I will ever get it.
Once available locally then there should be a three month grace period for you to purchase an original copy (including copying a television broadcast). This then moves it to a format shifting question and would be OK as you now own a legal copy.
These industries basically need to stop whinging and modernise. If I had a choice between making up my own Beatles Mp3 DVD and buying one I would buy one – but you can’t. What the company offers that the internet doesn’t are things such as quality control and time-saving. If I want to purchase a movie why can’t I purchase this on a memory stick instead of a big case with a DVD? Why do I have to import some of my favourite punk rock music because you cannot get it here?
The private sector talks about meeting consumer demand but is totally inept at times in doing so. Having simple laws like the ones above that fundamentally say if you own a copy you can do with it what you like might force them to get their shit together
This law, and the UFB PR stunt helps one company above all others, SKY TV. UFB will be used predominantly for entertainment, it will not transform NZ into a technology mecca. The new copyright legislation means that only legitimate content ie legit internet TV etc or material without copyright can be downloaded without penalty. This poorly disguised gift to an private monopoly organization via legislation passed under urgency is in my view totally illegal and is yet another breach of trust from the Nat govt who have shown us beyond a shadow of a doubt that they do not represent the people of NZ. They are the real pirates.
Would I be able to make accusations against myself for downloading my own copyrighted works?
On the copyright thing, would recording a TV programme be construed as infringement? I know it’s not downloading on a computer but could a lot of NZ be in danger of flouting the law.