Internet termination as a potential penalty for illegal file sharing continues to raise hackles, as lobbyists and commentators respond to proposed changes to the Copyright (Infringing File Sharing) Amendment Bill.A new “guilty until proven innocent&
Internet termination as a potential penalty for illegal file sharing continues to raise hackles, as lobbyists and commentators respond to proposed changes to the Copyright (Infringing File Sharing) Amendment Bill.
A new “guilty until proven innocent” provision has been flagged as a second cause for concern.
READ ALSO: Internet disconnection still option in revised file-sharing bill
The bill, as referred to select committee, included the power for a District Court to suspend an internet account for up to six months as a penalty for repeat offenders.
In a report released today, the committee recommended that this power be included in the Act but not brought into force unless the notice process and the remedies in the Copyright Tribunal prove ineffective.
If officials advised that the change was needed, Commerce Minister Simon Power could make the change by issuing an Order in Council (change to regulations) without additional public consultation.
Independent consultant Lance Wiggs, caught between blog posts at the Better by Design CEO summit, told NBR that the proposed change was simply “not good enough”.
In his personal opinion, internet termination is not a reasonable penalty and its inclusion in the bill – and ability to be activated without additional public input – is a major cause for concern.
Lowndes Jordan partner Rick Shera blogged that the revised bill is a “gentle zephyr” compared to the original section 92A or even the amendment bill as referred to select committee.
“It’s not as good as taking termination out but one would hope that it never comes to fruition,” he told NBR today.
But he flagged a new concern: section 122MA, which treats an infringement notice as evidence of copyright infringement unless the account holder provides reasons or evidence to the contrary.
“It turns the usual ‘innocent until proven guilty’ principle on its head and I don’t that’s appropriate.”
“We’ve seen overseas that a lot of these sorts of notices can be quite spurious... so to have the user turn around and have to prove that there is no infringement really puts an unfair onus on the user.”
Mr Shera said he was surprised by the addition of 122MA, as it had not come up during his participation in the select committee process.
In the report released today, the select committee said that 122MA would "fulfil more effectively the aim of having an efficient 'fast-track' system for copyright owners to obtain remedies for infringements".
Both Mr Wiggs and Mr Shera have present or past associations with InternetNZ, which raised similar concerns in its own response to the report.
InternetNZ chief executive Vikram Kumar welcomed the "sensible" tightening of the definition of internet service provider (ISP) to exclude universities, libraries and other business that provide Internet access.
But he said that the bill still leaves account holders entirely responsible for another person's use of their account, even where they have no control over them - potentially a major problem for libraries, universities and free Wi-Fi providers.
