Hollywood to NZ govt: stick to your guns on terminating pirates

NZFact, representing the major Hollywood studios, has warned the New Zealand government not to follow France, where a court recently struck down a copyright law provision that allowed infringers to have their internet accounts cut off.

Yesterday the lobby group, whose members include Walt Disney Studios, Paramount Pictures, Sony Pictures, Twentieth Century Fox, Universal Films and Warner Bros., said it supported the French President Nicholas Sarkozy’s decision or reintroduce copyright legislation to the French parliament.

The so-called Hadopi law (named for the agency that would enforce it) was resubmitted minus its central provision - termination of internet accounts - which was struck down by France's Constitutional Council, which plays a similar legislative review role to the US Supreme Court.

The council said Hadopi said violated a central principle of French law - that people are innocent until proven guilty - by allowing nonjudicial authorities to disconnect a person's internet account after three warnings.

InternetNZ seized on NZFact’s support for a termination-less version of the law being reintroduced. Chief executive Keith Davidson saying it proved the copyright lobbyist either supported the freedom of expression promoted by the French council, or was confused.

NZ Fact executive director Tony Eaton flatly rejected either notion.

Ultimate sanction
Mr Eaton told NBR his organisation supports three principles:
1. That online copyright violators are given three warnings over a period of several months;
2. That a high standard of evidence is required; and
3. That an independent arbitrator be available for instances where the standard of evidence is disputed.

It also unreservedly supports a fourth: that people’s internet accounts should be terminated if the arbitrator finds they have ignored three warnings about posting or download copyrighted material.

“There needs to be an ultimate sanction to show we’re serious,” says Mr Eaton, whose organisation says piracy costs creative industries $77 million a year in lost revenue.

Creative community split
Earlier this year, Section 92a of the Copyright Amendment (New Technologies) Act, split the creative community in New Zealand.

Some, like independent music icon Roger Shepherd, argued that Section 92a of the Copyright Amendment Act (S92), was a watered-down, overdue measure to counter the "cultural cannibalism" of casual piracy.

Others, like the Creative Freedom Foundation, which led the Facebook blackout campaign that garnered global attention, called S92 a “guilt by association law” and called for the government to halt its introduction and review the provision.

NBR noted that S92’s requirement for ISP’s to police copyright law was a clumsy, legally dubious idea - analogous to making Transit New Zealand investigate if someone robs a bank, then makes a getaway using one of its roads.

But, equally, that vaguely worded S92 did not give ISPs the right to cut someone’s account on a mere accusation. NBR also noted that termination without recourse to a court of law would be nothing new. All major ISPs currently have terms and conditions that allow them to arbitrarily terminate a person’s account.

The government asked the Telecommunications Carriers Forum, which represents major telcos and ISPs, to draft an ISP Code of Practice, as the new copyright law required, for implementing S92 (and by default, given that S92 was one, extremely vague paragraph, the very definition of the section).

The TCF discussed a code with provisions similar to those outlined by Mr Eaton above.

TelstraClear wasn’t happy, and walked out on the TCF working party.

The regulatory body required unanimous, UN-style consensus, meaning the ISP code was doomed to fail.

Shortly after, on March 23 - the eve of S92’s introduction - prime minister put the controversial section of the new copyright act on hold, pending a review.

Duck or cover?
That review, being carried out by the Ministry of Economic Development, is still underway. In the absence of any official word on progress, press speculation has run the gamut from a slight tweak in S92, to the entire copyright act being scrapped then re-written from the ground up.

NZFact, the Recording Industry Association of NZ (Rianz) and other copyright holders are arguing for some kind of extra-legal termination clause to stay in, facilitated by an independent arbitrator.

Others say that recent events in China and Iran, and related state censorship, show the importance of freedom of expression, and that internet accounts should never be terminated without a formal legal process.

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16 Comments & Questions

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The telcos wont police anything that affects their income - illegal or otherwise. Peer to peer players on the web, consuming large amounts of bandwith.. are only doing one thing... Piracy is bank robbery and has ruined the music and film industries.. costing jobs. The only reason for fast internet right now is quicker download or illegal films ...

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looking at my own Internet usage, I would would at least half my Internet bill if I stopped P2P useage. I fully agree there is very little need for high speed Internet if you do not use P2P. The key is for the Media industry to align their distribution model to meet the publics needs. Just as one example, why should I have to wait for a TV series to be shown in NZ to view it. may programs I watch are simply not shown in NZ. As to the common accusation that users will not pay, I pay for Sky all singing and dancing only to get some content I'm interested in, however Sky movies are too old, including pay to view or just cattle fodder. I would pay more for more quality subtitled movies, particularly French and italian.

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what an ignorant comment. There are significant reasons for fast internet access, the vast majority of which have nothing to do with downloading illegal films....

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HADOPI had the provision that despite being cut off, the accused had to continue to pay for the service they weren't getting for 12 months. Softened the revenue hit for the ISPs.

Personally, S92A should go the way the majority of non-beneficial submitters, the Select Committee and the MED Officials Report advised. Out the door.

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unadulterated rubbish all of it, do you work for the riaa?

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There is a sharp distinction between an ISP terminating an account that has broken the contract with the ISP, and doing so on the say-so of a disgruntled third party.

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Your ISP could disconnect you because it thinks you're abusing its T&Cs through, say, the sheer amount of data you're downloading from BitTorrent.

Or your ISP might disconnect you - today - because NZFact or Rianz has complained about stuff you post to your website, or download, and your ISP can be bothered with the time or money of challenging their allegations.

That is to say, today you can be disconnected from your ISP for a wide variety of reasons with barely any recourse to de facto arbitration, let alone a court of law.

That's not a good, but that is the situation today, pre-S92.

Hopefully the government will come back with a much more coherent and just version of the clause or, better, a complete rewrite of the whole copyright act.

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now prove me guilty. Don't expect me to help you. Don't expect me to incriminate myself. I'm innocent, if you think otherwise, prove it.

The copyright issue is that simple - why can't the RIANZ/MPAA see that?

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"that vaguely worded S92 did not give ISPs the right to cut someone’s account on a mere accusation"

ISPs such as Xnet did (for a time) disconnect people based on allegations of infringement without waiting for even a response from the customer.

Whether that's good business is a matter of opinion (who's going to be a greater threat: the alleged copyright holder or the alleged infringer?) but it's always true that a process for determining a fair result is going to be costly.

The cost of the taking people was of course a major concern of copyright holders, but moving the litigation costs from the copyright holder to the ISP doesn't make it any more likely that someone will pay for a fair process.

There is a PR risk for wrongful disconnection but that's like any risk, and that must be weighed up against Hollywood lawyers at the door. So our concern was that it would have been guilt upon accusation in practice.

http://creativefreedom.org.nz/fix-s92.html

ps. My initial comment "was rejected, it contains abusive word(s)" ... you might want to look at the words as it seems to be overreacting.

[Hi Matt, if Xnet and others disconnected people on mere accusation, then that's a good illustration of what's wrong with the current copyright law. S92, by many interpretations is little better, but of course it never went into effect. I struggle with NBR's spam filter, too incidentally. It targets all humans with equal mercilessness, and uselessness. - CK]

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Chris Keall wrote,

"Or your ISP might disconnect you - today - because NZfact or Rianz has complained about stuff you post to your website, or download, and your ISP can be bothered with the time or money of challenging their allegations.
That's not a good thing, but that's the situation today, pre-S92."

This is absolutely correct. We certainly do need due process around this to distinguish between the innocent and guilty. I hope that's a given now.

Beyond that is, as the article says, the issue of what kind of punishment if appropriate.

Disconnection is a rather inventive solution to this, but targeted fines would allow artists to be compensated with the additional PR benefit of not punishing many people for the actions of one.
Because copyright infringement on home internet connections is kind of like controlling what people do in their bedrooms there is a PR aspect to good copyright law. Artists benefit from years of copyright education that has gone on, and we need good copyright law that maintains public respect for artistic rights. We're certainly pushing for fines instead.

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Chris Keall wrote,

"Or your ISP might disconnect you - today - because NZfact or Rianz has complained about stuff you post to your website, or download, and your ISP can be bothered with the time or money of challenging their allegations.
That's not a good thing, but that's the situation today, pre-S92."

This is absolutely correct. We certainly do need due process around this to distinguish between the innocent and guilty. I hope that's a given now.

Beyond that is, as the article says, the issue of what kind of punishment if appropriate.

Disconnection is a rather inventive solution to this, but targeted fines would allow artists to be compensated with the additional PR benefit of not punishing many people for the actions of one.
Because copyright infringement on home internet connections is kind of like controlling what people do in their bedrooms there is a PR aspect to good copyright law. Artists benefit from years of copyright education that has gone on, and we need good copyright law that maintains public respect for artistic rights. We're certainly pushing for fines instead.

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Respectable countries such as Cuba, North Korea, prewar Iraq, Iran, USSR were/are amazing successful because they give the fingers to the courts and just got on with solving the problems.

Maybe there is an important principle here, even if the justice system is a bit 'cumbersome'.

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I for one, would join a pirate party like the Swedish pirate party which has an MP in the EU parliament. I strongly urge people who are concerned about our rights being threatened by Hollywood bullying our ISPs into cutting us off the internet for watching films not on TV at the moment, or listening to great music, not the rubbish they play on the radio.
Maybe you can join in previewing TV shows that have yet to show, or oldies they'll never play again, maybe you like mashup music.
We need a pirate party in NZ!

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High speed has so many uses, to call it only good for 'illegal downloading' is crazy. you try and do youtube, video conferencing (skype)or voip, or support many users on a single internet connection, play online games, download updates to windows vista or a game or any application. heck try and use the internet for any worthwhile purpose. creative people are always coming up with more and more ways we can use the internet and most of these things require a broadband internet connection. I use 40 + GB a month, do not download copyright films. I simply use the internet as a tool. there is so much free and publicly available that is legal to access that content creators want you to access but i always get to the end of my quota much to early paying for data is a joke. internet in nz is a joke. copyright law is a joke. organsations trying to shut people down and change the law and remove our rights as people is a complete joke. most of you people need to wake up and see what these laws mean for you. its not good!

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quite agree
only p2p pirates use / need high speed internet? What a load of cobblers, as the gent here suggests it has many uses, but overall its a tool.
I also use it as a tool for many reasons not particularly p2p networks, also by the way p2p as in "bittorrent" for instance can be used for many other downloads besides illegal movies and music [large open source software files like linux distro's] how is an isp going to tell what your downloading?
To say The riaa/mpaa care about the artists they say they are supporting is rubbish, they are nothing but self serving greed merchants.

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Even if the law is re-drafted and is fair, the bald fact of the situation is that people in the know will simply find a way to avoid detection using anonymous VPN networks. ISPs will refuse to look into VPN traffic because the bulk of the corporate customers withy VPNs would probably kick up a fuss so even with a workable version of Section 92A, piracy is likley to continue unabated.

Heres a novel idea - how about a seperate workstream is convened by the govt walk-short wearers to work out legit, affordable alternatives to piracy that are actually palatable to the public (e.g. avoiding DRM hobbled TV shows that cant be archived to DVD even though you've coughed up $$ for them) in parallel to revising S92a...

Use a carrot and a stick otherwise you'll merely drive downloading further underground and all that effort legislating will be wasted

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