Google wanted a key clause removed from New Zealand’s new copyright legislation, which revolves around the presumption of guilt.

The Copyright (Infringing File Sharing) Amendment Act passed on April 14 and comes into effect September 1.

RAW DATA: Google's submission | All Submissions | The full legislation

Under the new law, a rights holder, such as a record company or movie studio, can ask an alleged pirate’s ISP to send them a series of three warnings (for a $25 fee). If these warning are ignored, a rights holder can take the case to the Copyright Tribunal, which has the power to fine an offender up to $15,000.

The Ministry of Economic Development today released submissions made around a regulatory document it published around the legislation.

Presumption of guilt
In its submission, dated May 27 and prepared by Google Australia and New Zealand public policy and government affairs manager Ishtar Vij, the US company said its preference would be for Section 122N(1) of the Act to be removed.

With the heat taken out of the account termination argument (keep reading), this so-called presumption of guilt clause has been highlighted by a number of groups that still oppose the legislation.

The clause reads in part that “In proceedings before the [Copyright] Tribunal, in relation to an infringement notice, it is presumed … that each incidence of file sharing identified in the notice constituted an infringement of the rights owner's copyright in the work identified.”

Each instance of file sharing should not be viewed as an incidence of piracy.

Rather, the Act should be changed so the Tribunal has to make a positive finding of infringement, Google said.

As currently drafted, the law could require the Tribunal to find against an offender, even if it isn’t satisfied the a rights holder has a strong case, according to Google’s interpretation.

Out of whack
The problem could be exacerbated by the fact that an offender’s legal resources would likely be mismatched with that of a rights holder.

To help correct the balance, Google would like to see rights holders required to collect and present more informaiton about an alleged office.

Penalites for false allegations
It also calls for "provision for penalties to be imposed on rights owners who make false declarations and/or bad faith claims". Sworn declarations (the law's key safeguard in its current form) are not enough, Google maintained.

Against account termination
Google also re-iterated its opposition to an offender’s internet account being disconnected.

“Suspension orders will rarely if ever be a proportionate response to infringement,” the search giant wrote in its submission, “And may have far reaching and unanticipated consequences, including a chilling effect on legitimate users of the internet and lawful uses of copyright material."

"Off the table"
A compromise deal, which won Labour Party support for the Act, saw account termination removed from the Copyright Tribunal’s list of sanctions.

A person’s internet account can still be cut by an Order in Council – that is, an order created by a cabinet minister then signed by the Governor General – but Labour maintained the process was so arcane and unlikely that the provision had essentially been “taken off the table”.

Stealing something that was never here
NBR's favourite submission comes from Auckland freelancer Juha Saarinen, who wrote:

When awarding any penalties or damages, the Tribunal must consider whether or not at the time of the file sharing and copyright infringement the material in question was freely available for sale in New Zealand for New Zealanders.

If the material wasn't available for sale in New Zealand at the time the infringement is said to have occurred, the rights holder cannot claim a loss due to losing out on one or more sales.

If the download caused no loss to the rights holder, the Tribunal cannot award penalties against the person accused of infringing.

Mr Saarinen made his submission as an Associate Member of the NZ Computer Society.

Second favourite: using (cough) slightly less sophisticated language, "Aaron" pointed out that peer-to-peer technology was used legitimately by companies such as Microsoft and Sony for software updates.

Cracking down on BitTorrent-style services because a few used them illegally would be like "banning James Cook form [sic] exploring becourse [sic] pirates used ships!!!"

Poor use of English, but a good point - and one frequently expoused elsewhere by ex-Intel chief executive Andy Grove.