Foes of copyright act call for photo black-out

A protest campaign against the Copyright Amendment (New Technologies) Act is catching on like wildfire as followers black-out their photos on Facebook and other social networking sites. But the protest is based on a wilfully-hysterical interpretation of the vaguely-worded law on the part of many of the campaign's followers.

A group called Creative Freedom has called Feb 16 to 23 “Internet Blackout Week NZ” to protest against what it calls the “the Guilt Upon Accusation law 'section 92A' that calls for internet disconnection based on accusations of copyright infringement without a trial and without any evidence held up to court scrutiny.”

The new copyright act is due to come into force on February 28.

NBR has sharply criticised the act as “unfinest hour in a serious of heroically unfine hours put in by outgoing minister Judith Tizard,” who drove the bill’s passage through the house before the last election.

NBR’s criticism is based on the act’s extremely vague wording, which is open to broad interpretation (it will be educational for some to read the text of s92A, immediately following this story). It will require a series of test cases to resolve the intent of the law, if indeed any judge is willing or able to find any sense whatsoever in the legislation. It’s a bad law, that should be put on hold.

NBR has also noted that now-Attorney General Christopher Finlayson piled into the law last April as an opposition MP, stating during the final reading: "I think this bill is very much a patch-up job and very much what I would call third-rate law reform legislation."

Coming ready or not
Creative Freedom, and other groups, have called on the attorney general not to enact the new law on February 28.

But in a turnaround, a spokesman for Mr Finlayson’s office told NBR on January 21 that "a last minute stall won't happen."

The bill will become law as scheduled February 28. The minister says he wants to give the legislation a chance to work in practice, though is open to tweaking it if it proves impractical down the track.

The three accusations myth
The act’s generally ominous tone, but near complete lack of specifics, has proved a fertile breeding ground for urban myth and speculation. There is no definition of how many infringements constitute a “repeat infringer” or mention that a mere accusation should lead to a take-down. But into the vacuum, the three-accusations-and-you’re-off myth has emerged (though Creative Freedom doesn't take such an interpretation itself; see comment below).

The act does requires each ISP to have a code of practice, detailing how it will deal with repeat copyright offenders – and the Telecommunications Carriers Forum has duly, and grudgingly, created a template code for others to follow. ISPs – and wonkily – companies with their own IP addresses that are defined as ISPs, will become unwilling enforcers.

Like all other parties grappling with the new law, the TCF struggles to define what constitutes a repeat infringer, or how they should be dealt with. The TCF, representing all major ISPs, has settled on a system of monthly warnings over a period of up to 18 months, with a accused person, or their company, being given the opportunity to dispute any accusation.

(TelstraClear, previously reported wanting to instantly kick off those accused, as it couldn't afford to adjudicate, has signed onto the TCF's code along with all the major ISPs. Think about it: why would any ISP want a fast-track process to sever its own when the law doesn't require one.)

TCF executive Ralph Chivers says the code does not yield to mere accusation, but rather requires evidence that would stand up in court.

Copyright holders aren't thrilled about that interpretation and, as they've always been able to, could take their own civil action against someone they accuse of piracy.

Nevertheless, the act has delegated not only enforcement but the very interpretation of its intent to ISPs, so the TCF's code will become our modus operandi; no one is going to bust down your door and yank your internet connection because you’ve watched three pirated youtube videos in a row.

There will be much sparring between the TCF, the government, and organisations like RIANZ (the Recording Industry Association of NZ) representing copyright holders.

It'll be a big mess, thanks to a poorly constructed law, but the result will not be repression but farce and paralysis– as is already the case in Australia, where similar legislation has already been enacted, and top-tier ISP iiNet has simply handed an infringement notice on to police. The boys in blue, in turn, say they have better things to do than enforce copyright controls on pop music video and game downloads.

Anyhow, those controversional paragraphs of the act in full:

INTERNET SERVICE PROVIDER LIABILITY
92A
Internet service provider [sic] must have policy for terminating
accounts of repeat infringers

“(1) An Internet service provider must adopt and reasonably implement
a policy that provides for termination, in appropriate circumstances,
of the account with that Internet service provider of a repeat infringer.

“(2) In subsection (1), repeat infringer means a person who repeatedly
infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

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25 Comments & Questions

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ISPs are one thing but the act defines an ISP as anyone who offers internet access and anyone who hosts internet content.

So NBR is an ISP because all the staff have internet access. And it's an ISP because it hosts content. Hope you're all ready to assess whether that legal threat from Sue, Grabbit and Run is accurate, whether the content in question is copyrighted to that alleged owner and just whether you should take it down or leave it up.

And I'm an ISP because I've got a blog.

And all your readers are ISPs because they all run companies and presumably (if they're reading this) offer internet access to employees.

Hope they've got time/money to burn on managing the world's copyright issues.

The law is an ass and I hope the cabinet sees this and realises it before we get saddled with yet another compliance cost.

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the 3 strike system is not urban myth, nor is it speculation. It is part of the TCFs proposed code of conduct (which must be developed by ISPs according to Section 92A) which has three education/warning notices (1 can be issued per month) and then a disconnection notice. Although this code will only apply to TCF members, other non TCF members are likely to embrace very similar codes.

[As I said in the article, the act doesn't specify what constitutes repeat infringement, let alone three strikes. It leaves it up to ISPs to define repeat infringing and how they will deal with it, as we both note. The TCF, representing major ISPs, has decided a a three warning system, as I also noted, with the alleged infringer given the opportunity to respond to allegations, which the TCF says must be of a level tht must stand up in court - CK.]

If Chris had got off his behind and did some proper research then he might have got this right. As it stands the recording, TV and movie industry is lobbying to get the cost of laying a copyright notice removed, and even more alarmingly, to allow the copyright holder to decide when an accused internet users dispute of a warning is legit.

[They can lobby for anything they like, and I'm sure they'll lobby hard for such revisions. That's a pity. Copyright holders often take an over-the-top approach, and should spend more time offering their customers better digital alternatives. But for our immediate purposes, they're only lobbying; the Attorney General has said the law will go into force as it stands - CK]

Think about it - Instead of realising that the world has moved on and embracing change, these clowns want ISPs to police a business model based in yesteryear and not to have to wear the costs... urban myth and speculation my arse

[Totally agree that it's an archaic law, and asking ISPs to define and enforce it is clumsy, and will add potential expense for any organisation defined as an ISP. But it's not going to require ISPs to kick you off because of mere allegations. - CK]

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So it would appear that the more disgraceful aspects of this law, as reported, isn't quite as urbanely mythical as reported.

Copying is the weather now. It's inherent in digital architecture at an almost atomic level, and it's inherent in human culture and intelligence at an almost atomic level. Ever seen a baby slowly gain intelligence? It does it by copying. We all do it, all the time.

So I'm not going to call it "piracy"... People participating in their culture by sharing it with other people is an environmental condition.

There was a period (ie: the brief spell between the periods of oral-tradition and now) where groups of people were able to make money (which they did not by and large, share with the "creators" to any equitable degree). That period is gone. Trying to legislate the conditions of the 19th and 20th century back into existence is repugnant, wrong, doomed.

In the words of John Perry Barlow : "The bad news is that you're a bunch of 50 year old bozos who are up against an army of 17 year old geniuses, who by your actions have become a digital Hezbollah"

And me? I'm a 44 year old digital hezbollite. I will never stop fighting this.

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Hi Chris, it's Matthew from the Creative Freedom Foundation here. We are a group of some 5700 people including 2700 artists. We need good copyright law but when copyright infringes on public rights it risks undoing public respect for copyright and years of public education that benefits artists.

That's why thousands of artists are saying 'Not In My Name' about this law.

It's a bit larger than just a photo blackout, what we're calling for is for sites to 'dim the lights' by changing their colour scheme and run banner ads and hundreds of major websites are now involved. Unfortunately you scooped us before we pushed out our press release explaining this!

Just a minor point,

"But the protest is based on a wilfully-hysterical interpretation of the vaguely-worded law. [...] A group called Creative Freedom has called Feb 16 to 23 “Internet Blackout Week NZ” to protest against what it calls..."

Of course the '3 strikes' interpretation hasn't been one that the Creative Freedom Foundation have used so we should be clear about this part of the article because people could get the wrong idea (especially because someone might get the idea that we're being "willfully-hysterical")

To be fair to those who did have that 3 Strike interpretation this idea was probably due to the wording of Section 92A which gives no guidance as to how many strikes would qualify as "repeat" and so many people looked overseas to the France's `3 Strike` proposal for guidance. It was only in recent weeks with the TCF policy that we've learnt that some ISPs will use 4 strikes.

It seems to be a minor point but I thought I'd clear that up.

As "ISP Man" (above) says the new definition of an ISP is anyone practically any shared connection or website, which as the TCF say includes "schools, universities, libraries, businesses, government departments and any other organisation that provides internet services" (source: http://tinyurl.com/tcf-draft-press-release ).

Or in other words: thousands of untrained people that couldn't be expected to understand the nonobvious cases of copyright law, like whether an accusation against a Printer is true or false (it was false, see: http://dmca.cs.washington.edu/ ) or whether this example of alleged copyright infringement published by the NBR http://tinyurl.com/nbr-trademe-lixtor should result in a company like Lixtor being restricted from trading online. There's further analysis about this here: http://creativefreedom.org.nz/story.html?id=78

The business compliance costs of monitoring in order to later corroborate any accusations will affect thousands of "ISPs" under the new definition (the alternative is that you don't log it and can't cooroborate and fire someone accidentally and the employment law problems). This NBR article talks a little about monitoring: http://tinyurl.com/nbr-on-s92

Thanks Chris,

Kind Regards,
Matthew Holloway
http://www.CreativeFreedom.org.nz/

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Our media release about this

http://tinyurl.com/blackout-release

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My profile picture on facebook has been a blacked out screen for over a year now... can i sue someone for breach of copyright?? ;-)

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Indeed - Robert Downey Jr may even claim to have got their first with his Tropic Thunder black-out.

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Chris - you may be unaware but rightsholders have sued IINet for not complying to their demands, and the case is before Australian courts.

Also the rights holders have not agreed to the TCF code, and it is very possible NZ ISPs could be sued, even if they go with the Code, as the rights holders say they should be given the power to decide if someone is guilty. This is not made up - this is the actual position of the major US rights holder groups.

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I know that rights holders often want to claim outrageous powers, and as I noted in my original article they're not happy about the TCF code.

Perhaps they will sue an ISP in NZ, as they have done in Australia.

But it's always been their perogative to badger ISPs and alleged infringers with civil suits. Under the new law copyright holders can say ISPs are obliged to police copyright infringers, and perhaps file suit against them if they don't - but then again ISPs can say they're following their relatively mild code of practise as (vaguely) proscribed by the act.

As in Australia, who knows what will happen. The Copyright Amendment Act is completely vague, and will require time-consuming, money-wasting test cases to resolve its meaning.

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"NBR has sharply criticised the act as “unfinest hour in a serious of heroically unfine hours put in by outgoing minister Judith Tizard,” who drove the bill’s passage through the house before the last election."

English muthaflipper Do you speak it? Furthermore, you do not need to hyphenate adverbs ending in 'ly' that form compound adjectives. The 'ly' signifies the link. I neglected to read the rest of this article, because I have serious (not a series of) doubts about your competency. Yes I do have too much time on my hands.

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Next you're going to tell me that "unfinest" isn't a real word.

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I looked it up & you are correct sir.; "unfinest" is a real word. In all seriousness, I am wondering if there are any updates to this story. <url="http://www.cell-phone-list.net">cellphone list</url>

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Unfinest is a perfectly cromulent word. Apologies for the language, not sure what brought that on. Keep up the good work.

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Foes of copyright act call for photo black-out | The National Business Review - New Zealand - business, markets, finance, politics, property, technology and more abner@comemail.net

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Foes of copyright act call for photo black-out | The National Business Review - New Zealand - business, markets, finance, politics, property, technology and more#comment-47168 adley@gigemail.net

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Foes of copyright act call for photo black-out | The National Business Review - New Zealand - business, markets, finance, politics, property, technology and more#comment-47169 adam@comemail.net

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I think it would be hard for people to participate in an "internet blackout" protest. There is such a <a href="http://www.neverfailgroup.com/solutions/high-availability.html">high availability</a> of internet access everywhere you look. I understand that their is probably a lot of copyright infringement on the internet, but how is an "internet blackout" going to help things.

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Re: Tori,

I agree with the fact that people the internet is so widely available that a blackout would be a problem, but I would like to add one thing. An <url="http://www.worldhiphopbeats.com">instrumental</url> part of the problem is an electronic addiction or reliance of sorts.

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(TelstraClear, previously reported wanting to instantly kick off those accused, as it couldn't afford to adjudicate, has signed onto the TCF's code along with all the major ISPs. Think about it: why would any ISP want a fast-track process to sever its own when the law doesn't require one.)<a href="http://rocville.com/">kate</a>

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