Section 92A ate my brain

KeallHauled

Chris Keall

Yesterday, I was myself keelhauled myself in some quarters. My crime: being the messenger of the fact that Section 92A of the Copyright Amendment Act will not eat your brain, or result in the immediate termination of your internet account if you glance at the wrong YouTube video.

Rather, the confused new law is so loosely-worded that nobody can interpret it with any certainty – bar the fact it makes no mention of cutting people’s accounts on mere accusation. The act does charge ISPs with enforcement, and indeed the very interpretation of its vague, mist-like descriptions of "repeat infringement" and “appropriate circumstances” for termination.

It’s a clumsy, legally dubious idea to make ISPs the investigators of copyright holders’ complaints. After all, Transit New Zealand is not required to investigate if someone robs a bank, then makes a getaway using one of its roads.

And it's an even more curious concept to have charged ISPs with defining the act’s very intent by requiring them to resolve its vague statements into a code of practice.

But happily, The Telecommunications Carriers Forum, representing all the major ISPs (yes, including TelstraClear) responded with a draft code that will see its members act more as mild-mannered community coppers than net Nazis.

Under the code (which can be used as a template by smaller ISPs, too) individuals, or their employer, get fair right of reply to allegations of copyright breach under a process that will extend between three and 18 months, and requires the accuser to supply evidence that will stand up in a court of law.

Our man Ralph Chivers and the TCF got a hospital pass, but turned the game around. People should appreciate that.

Certainly, organisations representing copyright holders won’t, and may file civil suit against some ISPs or individuals they think are pirates – but then again it’s always been their prerogative to wage a legal war on their own customers, should they choose that path above more positive alternatives such as offering more and better street-legal digital content.

Similarly, an ISP has always been able to terminate your account if you violate its T&Cs, without a court trial, or indeed any evidence at all, should it feel the need to alienate you and lose your business. (One of the problems that RIANZ and other copyright holders have with the act, is that anyone who does get terminated after the code’s drawn-out notice procedures can turnaround and open an account with another ISP the next day. But again, that’s the case today, too.)

The act's vague definition of what constitutes an ISP is another problem area, and one of many areas of the legislation that will have to be resolved by money-wasting test cases. However, it's also arguable that any company running a website - if indeed that can be defined as an ISP - now has a structured defence against complaints from copyright holders. It could, for example, say it has followed the code by taking "appropriate measures" to deal with a rogue employee, such as asking them to stop downloading pirated material, or executing some measure of internal discipline or, indeed, education.

The OTT reaction has been counter-productive. Attorney General Christopher Finlayson has decided factions on both sides of the debate are being hysterical, says one National insider, resulting in his decision to let the law go into force on February 28, then see how it works in practice.

Anyhow, now that my rep. with Twitter troll international copyright expert and freedom campaigner Stephen Fry can’t fall any lower, I offer the following.


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9 Comments & Questions

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The act does actually call for the disconnection of users on mere accusation. See http://creativefreedom.org.nz for the legal mumbo jumbo translation.

The TCF document has been rejected by the media organisations - not the governement, you note.

Under the new definition of an ISP in the act only a tiny percentage are members of the TCF anyway.

At least one major ISP has said they will disconnect on accusation - they are nto qualified to act as judge and jury, particularly as the act does not reconcile with either the presumption of innocence or the NZ Bill of Rights.

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"... anyone who does get <strong><em>terminated</em></strong> after the code’s drawn-out notice procedures can turnaround and open an account with another ISP the next day."

So the Act shouldn't be scrapped then?

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Absolutely the act should be scrapped, but ironically, what AG Finlayson perceives as a hysterical over-reaction, on both sides, has seen the legislation poised to become law.

The law has be argued based on its likely practical effect, not OTT scare stories.

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The Telecommunications Carriers Forum did not "happily" respond with a draft code, but grudgingly.

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As I've noted in previous stories, the Telecommunications Carriers Forum shares my - and nearly everyone's - dislike of the act. But, happily for us, it made the best of the job it was allocated, formulating a moderate code.

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Hail, Keall. Thanks for inserting a note of sanity into what's become a totally ridiculous debate.

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Apparently my post contains abusive words... and the only word I could see that might be considered abusive is "liar".

So much for free speech.

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Several people, including the author of this article claim the TCF are some sort of benevolent organisation fighting against government injustice.

This is a TOTAL LIE. Nothing in the LAW says ANYTHING about disconnecting users based on copyright violation accusations.

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Down with the act.

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