It's baaa-aack: revised S92 goes before cabinet today

[UPDATE: Power makes Copyright Tribunal new S92 sheriff]

A revised version of Section 92a of the Copyright Amendment (New Technologies) Act is due before the cabinet today.

Speculation runs the gamut from the new law being quashed altogether to the formation of a disputes Tribunal style process to deal with minor instances of internet piracy. A third option: simply delete the controversial clause altogether.

A tribunal – forget it
NZFACT, which represents the major Hollywood studios, has recently been lobbying hard for the government to retain s92’s “ultimate sanction.” That is, the ability to terminate somebody’s internet account after three warnings, plus an independent arbitration process.

The idea of the Copyright Tribunal taking on s92 cases, or some kind of disputes tribunal style process being put in place under an official independent arbiter is a popular one with both sides.

But it's fanciful.

The Copyright Tribunal –where, currently, you’d go to lodge an appeal if you were a library and XYZ publisher was not letting your students photocopy a chapter of one of its textbooks – would be mown flat by the avalanche of complaints that would follow if it were roped into internet piracy disputes.

And any new tribunal would face a similarly towering in-tray ("He's got five Moby songs on his hard drive. RIANZ says he only paid for three, but the defendant says two are remixes. Let's dispatch an investigation team.")

ISPs as law enforcers – forget it
Internet service providers – who were charged with policing the original version of S92, still don’t won’t to play the role of sheriff, and the costs that come with it.

The same goes for businesses who, as website hosts and internet connection providers for their employees, could arguably be defined as ISPs under the original legislation.

As NBR originally pointed out, holding ISPs responsible for enforcing copyright law is on a par – legally and practically – with making Transit New Zealand investigate bank robberies because they fellons make their getaway using its roads.

In any case, as NBR also pointed out, unpopularly, ISPs already use their terms and conditions to kick off illegal (or just heavy) downloaders, no judicial process required.

A central fund – forget it
Labour communications and IT spokeswoman Clare Curran has to deal with the central problem that it was her party that originally pushed through this messy, poorly worded legislation. At the recent TelCon10 conference, she told the audience “One area it particularly didn’t get right was copyright.”

On Wednesday night, Ms Curran organised a copyright forum in Auckland - following a similar pow-wow in Wellington during March, that brought together a good spread of representatives from copyright-holders like APRA, and record labels; Chapman Tripp; industry bodies like ISPANZ, InternetNZ and various ISPs.

If a subsequent post by an attendee from the Open Source Society is anything to go by, then the meeting was proof that one pizza evening can lead to more progress – or at least more self-awareness on both sides – than any number of parliamentary hearings, or online flaming:

It was very interesting for me personally, as I got to meet and discuss issues with many of the people that we normally consider our opponents. There was certainly the multinational presence felt, but there are also many honest New Zealanders in the creative industries earning a living from their work. They cannot necessarily make money off secondary services like we can in software.

Well, musicians sort of can, with concerts and merchandising, but never mind: you get the broader point.

As always at these sorts of things, high-minded but wildly impractical ideas were put forward. Relates our correspondent:

One idea might be to introduce compulsory license schemes for ISP's so that a set amount is paid to an organisation that will distribute the funds to content providers. In this case books, music, film and SOFTWARE would benefit from funding.

Like the concept of an independent arbiter, or tribunal, it’s nice on paper, but would be a bureaucratic nightmare in reality.

Doing nothing – quite feasible
Another alternative: replace s92 with nothing. Simply delete it from the legislation. Copyright holders already have the right to pursue a civil suit against someone who has pirated material on their website, or hard drive.

The likes of NZFact and RIANZ could pursue a series of scare cases - as their counterparts in the US have done to disastrous PR effect - or pursue the only real path to defeating piracy: making legitimate online content cheaper and easier to access.

S92: THE TRAINWRECK TIME LINE

April 3 2008: The Copyright Ammendment (New Technologies) Act passes its third reading in parliament. The National opposition criticises aspects of the legislation, but in the end votes to support it becoming law, including the controversion Section 92a (S92) which calls for ISPs to have a policy for terminating the accounts of repeat copyright infringers.

January 21 2009: Attorney-general Christopher Finlayson's office tells NBR that "a last-minute stall won't happen": s92 will come into force as scheduled on February 27.

In the first sign of a possible cabinet split, responsibility for s92 moves to the office of justice minister Simon Power.

February 17 2009: The Creative Freedom Foundation (aka hitherto unknown husband and wife duo Matthew Holloway and Bronwyn Holloway-Smith) launch the Facebook black-out campaign against S92. It quickly goes viral, grabbing worldwide attention.

February 23 2009: Prime minister John Key announces that s92 will be suspended until March 27. The PM hopes ISPs will come up with a voluntary code of practice for dealing with copyright infringers by that time.

March 11 2009: TelstraClear pulls out of pan-ISP talks on an s92 code of practise, which under Telecommunications Carriers Forum rules needed 100%, UN Security Council level consensus.

March 23 2009: Prime Minister John Key announces s92 will be put on hold, pending a review and re-write by Ministry of Economic Development officials.

June 10 2009: France's constitutional court strikes down the termination provisions of the so-called Hadopi law, a rough equivalent to S92. Judges say it violates the right to free speech.

14 July 2009: Revised version of s92 due to go before the cabinet.