The top five myths about S92

KeallHauled

Chris Keall

Section 92A of the Copyright Amendment (New Technologies) Act, due to come into force Saturday, is a piece of badly-written legislation that seeks to mollify both sides of the piracy debate, only to enrage all-comers.

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.

Yet OTT and often abusive reaction to the bill has helped the minister decide both sides are being hysterical, and that the legislation should go into effect, to see how it works in practice.

The more extreme anti-S92 crusaders also exaggerate the impact of the act, creating often unwarranted fear or outright misinformation. On this day of fresh action, with a number of sites blacking themselves out altogether, at least for the morning (what happened to the day, guys?), NBR attempts to dispel a few of the myths.

MYTH: you can be disconnected from your ISP after three accusations.
FACT: S92 (to call the clause by its Twitter abbreviation), says “An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that internet service provider of a repeat infringer.” And ... that’s it.

The Telecommunications Carriers Forum, TCF, representing all the major ISPs (including Telecom, TelstraClear and Vodafone) has duly drafted a code that calls for a series of “customer notices”. Notices will be sent on a monthly basis, and you’ll need to be get at least three – that is, over three months – before any termination notice is issued. The accused gets right of reply to each accusation in a process that extends for 18 months.

The code will see ISPs act more as community coppers than network Nazis. It definitely does a good job of defining the vague legislation.

Smaller ISPs outside the TCF don’t have to follow the organisation’s template, but it defies common sense that they would adopt any policy that would see their paying customers terminated in a faster time frame, or with less right of reply.

MYTH: accusations can be flaky.
FACT: The TCF code requires accusations to be of a level that would stand up in a court of law. You then get right of reply.

MYTH: You can be disconnected from your ISP for alleged copyright infringement, even if you have not been convicted of any crime.
FACT: This is true, but it is not anything that comes into force with S92. Rather, as the government officials who originally deleted S92 noted (before it was reinstated at the last minute by outgoing minister Judith Tizard): most ISPs already have terms and conditions that allow them to disconnect a copyright infringer – or in fact anyone, for almost any reason - no court trial required.

But unless you’re a Torrent jockey who’s always slamming its servers, however, it defies commercial logic for an ISP to disconnect you at the drop of a hat.

The TCF code, and a mediator representing copyright holders (keep reading) provide easy, low cost ways for an ISP to rebuff allegations that a good customer is a bad online citizen.

MYTH: the act leaves you open to allegations of copyright infringement, even if a hacker or virus is responsible.
FACT: The code gives you right of reply to accusations, and the act asks an ISP to take “appropriate action” to deal with an infringement. Explaining that copyrighted material was placed on your website by a hacker, and that you dealt with it by removing the material, is a valid response.

Remember: your ISP doesn’t want to lose your business, and it doesn’t have to hire an expensive team of lawyers to sort out the situation: it just has to follow the code.

MYTH: Accusations against a rogue employee could see a company lose its internet connection.
FACT: Chapman Tripp senior solicitor Justin Graham confirms that the act fails to differentiate between individual accounts (home users) and internet accounts with multiple users (such as businesses). It’s undeniably a major failing of the legislation.

But this flaw does not necessarily mean a business would necessarily lose its internet connection if an employee is accused of downloading illegal music or movies onto a company server.

The act calls on ISPs to create a termination policy. Mr Graham envisions that typically such a policy would involve an ISP sending a letter of warning to a company with a rogue employee who pirated copyrighted material. If the company then warned or otherwise disciplined the employee, the ISP could decide “appropriate action” (in the act’s vague wording) had been taken.

A further complication is that the act defines any organisation that provides internet access (arguably a site like trademe, a business or a library, among others) as an ISP. But then again, as an ISP there’s a code of practice to follow. Warnings can be issued and behaviour modified without anybody getting kicked off.

MYTH: The act requires a company to track every employee's web usage.
FACT: It does not. However, some - including the Creative Freedom Foundation and those with a commercial interest from the security industry - say while the act does not specifically require you to log your staff's interent use, it would be prudent to do so to gather evidence against possible future allegations.

However, copyright holders don't get any special powers under the act, nor lose any. You'll face exactly the same threat from a possible direct civil action taken by a copyright holder as you do today - so if you feel the need to take presumptive action by monitoring your employee's internet use, with the attendant HR and privacy issues, go ahead. But there's nothing new to deal with here.

MYTH: copyright holders get new powers
FACT: A copyright holder, or a group representing copyright holders like the RIANZ (the Recording Industry Association of New Zealand) might decide an ISP, or business, is pussyfooting around by asking for a high standard of proof, then issuing a warning letter to an alleged infringer and giving them a right-of-reply in a months-long process, as the TCF code of practice dictates.

If so, the copyright holder could take a civil action against you, or your business. The act doesn’t prevent them doing that. It would have been nice if it had.

As it is, the likes of RIANZ retain the right they’ve always had to take a civil case against a person or company they think is a pirate, and the relevant ISP, should they choose that action against more positive alternatives like offering more and better digital content online (or even content on disc; a case that springs to mind is Sony Pictures’ prosecution of a video store on Auckland’s Dominion Road that was selling knock-off copies of a Bollywood hit en masse. The guy was breaking the law, and had to pay for it, but I also wonder why Sony went to war on its customers, rather than granting the movie local release).

Historically, RIANZ and its sister organisations have targeted professional pirates (it does, after all, cost them time and money to investigate then prosecute) rather than harass individuals who’ve been downloading a few tunes or videos on the sly (the gentleman mentioned above had illegally copied 30,000 DVDs and 10,000 videotapes).
Nevertheless, that threat, as before, still lurks.

One positive outcome from the anti-S92 campaign has been that the music and movie industry has agreed that a mediator should be appointed as a go-between between themselves and the ISPs who’ve been saddled with enforcing S92. The appointment of a mediator is not yet confirmed, but the very discussion of the position marks the first time, in living memory, that RIANZ and its cohorts have adopted a more pragmatic approach.

(RIANZ did send quite a hard-nosed letter to the TCF calling its code "unworkable", as Computerworld revealed. The two managed to subsequently enter into more reasonable dialogue, resulting in the mediator compromise. Ironically, RIANZ anger at what it sees as the act's, and the code's toothlessness, runs counter to many of the conspiracy stories.)

MYTH: The Creative Freedom Foundation, creator of the undeniably iconic photo “black-out” campaign across Facebook, Twitter and other sites, is advised by Telecom a employee, plus a member of Vodafone’s comms team. This turns followers of the hip, trendy campaign into unwitting shills for multinational telcos, who oppose the legislation for their own, different ends.
FACT: Can’t be true ... can it?


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20 Comments & Questions

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Yes, this is probably the most important myth of all. Pirates will find another safe harbour for their activities which are abundant and safer than bit-torrenting. All this law has done is pushed the pirates into stealth mode.

What a waste of time and energy has and will continue to create. That's what happens when the symptoms are treated instead of the root cause. This has been a major win for pirates - rah!

Kudos to NZ lawmakers who are going to push this law through irregardless that both sides have legitimate issues. Glad to see you haven't tarnished your image as being as useless twits.

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Absolutely. One of the issues that RIANZ, and other copyright holders, have with the new law is that even if someone does get disconnected, evenutally, after all the code's right-of reply-rigmarole, they can simply turn around and join another ISP straight away, "reformed" or not.

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<b>MYTH: Innocent until proven guilty.</b>
FACT: Without a court trial, people will be punished unjustly. End of story, S92 is in direct violation of basic human rights. If S92 is just, I should be able to accuse the not so honorable Judith Tizard of human rights abuse and send her to prison.

MYTH: The RIANZ etc will only accuse people who actually download illegal material.
FACT: They will follow the trend of the US based RIAA who have sued dead people, people without internet connections and printers for 'alleged copyright infringement'

ISPs should not be responsible for coming up with the code of conduct, this should be codified in law. Law should not be as vague and overarching as S92.

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I don't think it is a good thing that you can lose your internet connection without being convicted of anything, but that's the case today, ahead of S92's implementation.

It would have been nice if the new copyright legislation addressed this, but it didn't, it maintains the status quo in this regard.

I think RIANZ has often had a tin ear for public opinion. Its members need to offer positive incentives, such as more and better street-legal online digital content. And its press releases often strike an aggressive tone that always backfires. But in terms of actual prosecutions, it's not suing dead people, or even live people who are downloading a few MP3s on the sly. It's concentrated its limited time and money on professional pirates, such as the guy mentioned in the main story.

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Chris Keall "torrent" is spelt with two ts, not one.
And this artical is bias as hell.

MYTH: You won't be disconnected from your ISP for alleged copyright infringement, even if you have not been convicted of any crime.
FACT: This DOES INDEED come into force with S92.
It is true that most ISPs already have terms and conditions that allow them to disconnect anyone, for almost any reason without being proven guilty in court, the reality remains that the vast majority of ISPs don't use their terms and conditions to go around disconnecting internet users. After S92A ISPs will have NO CHOICE but to do just that. Running around like a bunch of hoohas disconnecting almost everyone in sight. Sure, it will take months before they have to go it, but the time WILL COME for guilt upon accusation.
The Europe Union and the British government see what is unjust about these kinds of laws, it seems some kiwis are blind to the face too.

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.... the best critique of your column is: http://www.youtube.com/watch?v=7Q25-S7jzgs Lawrence Lessig - we need a law and business model that doesn't get flouted, disenfranchise or criminalise our citizens.

Bad law undermines all society by making it an ass - and this is bad law.

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MYTH: accusations can be flaky.
FACT: The TCF code requires accusations to be of a level that would stand up in a court of law. You then get right of reply.

And who decides if of a suitable level -- only a court can determine that!

What I resent is that the ISP's costs are increased and who will they pass that on too???? I am hoping Key and ACT stop this stupid Labour type thinking.

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MYTH: The RIANZ & APRA represent artists.
FACT: They represent their membership only. Many artists and other copyright holders are not represented.

MYTH: The Telecommunications Carriers Forum represents ISP's
FACT: The TCF represents its membership only. Not all NZ ISP's are members.

MYTH: The voluntary TCF Code of Conduct sets out how S.92a sets out how the Copyright (New Technologies) Amendment Act 2008 will be interpreted.
FACT: Law needs to be clear and only case law can determine how it should be interpreted.

MYTH: Accusations won't be flaky because the TCF Code of Conduct says so.
FACT: Vexatious and/or malicious accusations can and do happen even with the US Digital Millennium Copyright Act, which is a far more robust piece of legislation than New Zealand's poorly worded copyright amendment.

I quote from the latest settlement over one such malicious claim:
"EFF has seen people and organizations increasingly misusing the Digital Millennium Copyright Act (DMCA) and other intellectual property laws to demand that material be immediately taken down even when the material clearly does not infringe any legal rights. Service providers often comply with these requests without double-checking them, depriving groups like SHARK of a crucial mechanism for spreading their message."
http://www.eff.org/press/archives/2009/02/12

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MYTH: The RIANZ & APRA represent artists.
FACT: They represent their membership only. Many artists and other copyright holders are not represented.

MYTH: The Telecommunications Carriers Forum represents ISP's
FACT: The TCF represents its membership only. Not all NZ ISP's are members.

MYTH: The voluntary TCF Code of Conduct sets out how S.92a sets out how the Copyright (New Technologies) Amendment Act 2008 will be interpreted.
FACT: Law needs to be clear and only case law can determine how it should be interpreted.

MYTH: Accusations won't be flaky because the TCF Code of Conduct says so.
FACT: Vexatious and/or malicious accusations can and do happen even with the US Digital Millennium Copyright Act, which is a far more robust piece of legislation than New Zealand's poorly worded copyright amendment.

I quote from the latest settlement over one such malicious claim:
"EFF has seen people and organizations increasingly misusing the Digital Millennium Copyright Act (DMCA) and other intellectual property laws to demand that material be immediately taken down even when the material clearly does not infringe any legal rights. Service providers often comply with these requests without double-checking them, depriving groups like SHARK of a crucial mechanism for spreading their message."
http://www.eff.org/press/archives/2009/02/12

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A little off topic, but the issue regarding piracy for me is this.

There has been easy access to illegal music for what, 10 years or so? (since napster). Yet last week when my workmate wanted to legally obtain an individual song to use on a picture slideshow (because she had lost the original cd she owned), could I direct her to a site to pay for the song and get it?

No.

She found you could buy mp3's from amazon, but for some unknown reason they don't sell outside of the USA. She went and asked at the local music store where/how she could get it, and they didn't know either.

Where are the legal alternatives? Why in 2009 is it more convenient for me to download an illegal copy of a song than it is for me to purchase a legal copy?

Why is the illegal copy a better product than the legal one? (i.e. high quality drm-free mp3 vs some propritary format that restricts whether I am able to play it back in my car)

If I could get a legal version as good as (or ideally better than) the illegal one, then it just becomes a matter of setting the price to a level where people would rather fork out and buy it then than go through the hassle of getting the illegal version.

Of course there will always be a minority that have lots of time on their hands (younger people, unemployed people) and not much money, they will always get the illegal version.

But the majority of us with jobs and some disposable would rather just purchase from a legitimate source.

But we don't really want to get ripped off and purcahse a "legitimate" copy when we could have downloaded a better verison of the same song for free.

PS: In the end, after a few days my friend found the CD she had lost.

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The retorts to the myths in the article seem to only be opinion. If these myths were being debunked, surely you would use references from this act to disprove them?

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The fact that a law that breaches the Human Rights act and the United Nations Universal Declaration of Human rights needs an industry determined "Code of Conduct" to become workable is a sure sign this legislation is totally flawed. How is it that a fundamental tennant such as "innocence until proven guilty" is now determined by an easily changed Code of Conduct rather than legislation?

You certainly would not see a similarily badly written law if it applied to accusations of corruption by goverment ministers. I'd like to see a similar "three accusations and the MP is suspended without pay until you prove yourself innocent" law for that.

KPS: the references for and against s92a is the same vague, paid for by the industry wording. People are worried about the application of law as the wording is next to useless.

In response to the common cries of "the vaguaries won't be abused" all you need to do it look at any unclear law and see how it WAS abused, the most recent of these debacles was the s59 "anti-smacking" law.

People don't doubt that copyright infringement is wrong but as pointed out above the industry has been too slow in providing the services people want and has created a situation where (as a pervious poster has noted) you get a higher quality, safer (SONY rootkit etc.), less expensive, better delivered product than the industry provides.

Basically the media industry has failed thier shareholders by not working out a way to monetize user friendly internet distribution a decade after it was obvious that the market was moving in that direction.

The fundamental problem is that they see the public as born thieves rather than consumers to be marketed to.

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Chris Keall trots out a bunch of "myths" about the new law, and cites the TCF code as counterargument.

The TCF code is not the law - it does not have the force of law, and it does not stop copyright holders persuing accused infringers further.

The TCF code is voluntary, and is not worth the paper it is written on unless all copyright holders agree to abide by it.

Your 'arguments' are the equivalent of countering 'myths' from the Koran by quoting from the Bhagvad Gita.

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It's all academic now, of course, but read S92. It requires ISPs to create a policy to take "appropriate action" to deal with "repeat infringers". The TCF's code is an example of such a policy.

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... to read some commentary on this debate that doesn't blindly follow the talking points from the CFF. One of the key points of your article has to be that the telcos really don't want to lose their customers, so even if S92 were to become law it would be unlikely that it would ever be invoked by a bandwidth provider without due and defensible cause.

The drama has been fun. The reality is bound to be a lot more sobering.

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I was going to leave this one but just for the record...

"MYTH: The Creative Freedom Foundation, creator of the undeniably iconic photo “black-out” campaign across Facebook, Twitter and other sites, is advised by Telecom a employee, plus a member of Vodafone’s comms team. This turns followers of the hip, trendy campaign into unwitting shills for multinational telcos, who oppose the legislation for their own, different ends.
FACT: Can’t be true ... can it?"

This is true in the sense that Chris Keall is advised by my wife in matters of S92A: he interviewed her.

Or let's put this another way -- do you think we ran the site for 2 months without receiving an email from a telco OR a record company offering advice? Does that mean we're advised by record companys too?

No, it wouldn't. We don't consult with telcos or record companies. But then your story wouldn't have the same conspiracy angle if you'd mentioned being the CFF advised by online record companies.

MYTH: The Creative Freedom Foundation has received emails and advice from lots of people but still just does what it thinks is best and if you want to know this come and talk to them.
FACT: Can't be true ... can it?"

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"The TCF code is not the law - it does not have the force of law, and it does not stop copyright holders persuing accused infringers further."

This is pretty much right. To gain some surety here we'll need case law or a law change.

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"If you eat toast in bed, you have to be prepared to sleep with the crumbs".

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Crumbs indeed. I think you need to sweep your own bed out before worring about sharing some toasted wholemeal with the CFF. Whilst I agree with some of your sentiments, you story has more holes than swiss cheese.

You say “Myth: You can be disconnected by as ISP after 3 accusations”. You then proceed to say that

"the TCF, representing all the major ISPs (including Telecom, TelstraClear and Vodafone) has duly drafted a code that calls for a series of “customer notices”. Notices will be sent on a monthly basis, and you’ll need to be get at least three – that is, over three months – before any termination notice is issued…."

Uh Do you read and check your own copy? Whilst I agree that non TCF members might not adhere to this policy, the TCFs membership accounts for the lions share of total internet users in NZ, all of whom assuming the member ISPs follow the proposed code can indeed still indeed be disconnected after 3 accusations according to what YOU said above. Boom! Mythbuster one busted.

You Say: MYTH: accusations can be flaky and then proceed to say that The TCF code requires accusations to be of a level that would stand up in a court of law. You then get right of reply. This is wrong for two fundamentally important reasons

1) Under the TCF's proposed code you can be a non approved copyright holder and still make accusations. Although the TCF have proposed that non approved copyright holders will have to pay more to make accusations, the fact that they’re not approved means that their system for detecting infringement has not been audited and could therefore be very questionable in court law.

2) Researchers at Washington University have managed to get copyright infringement notices issued to printers and several other IP connected devices that were clearly not capable of infringing copyright by spoofing. Given the bulk of infringement activity is aimed at US material, this has very serious implications and could mean that even accusations made by approved copyright holders might not stand up in court. Then there’s ISPs who are not TCF members who don’t have to have anything near as rigorous for dealing with infringers. I wont even get into the potential for vexacious accusers (which are commonplace inthe USA). Did you at any point prior to embarking on this little mythbusting exercise actually bother read Section 92A and the TCFs proposed code of conduct? Did you even think about it before typing this flawed missive?

More inaccuracies: You say that fact that the act leaves you open to allegations of copyright infringement, even if a hacker or virus is responsible is a myth.

Whilst I agree that the code gives you right of reply to accusations, and asks ISPs to take “appropriate action” to deal with an infringement and yes ISPs don’t want to lose subscribers, TCF members and non members will still have to eventually disconnect high volume repeat infringers under the proposed code. Try calling this a myth to parents with teenagers hellbent on getting that latest album or people with an unsecured wireless router or a malware infected PC who find they’ve unwittingly lost their broadband. How happy would you be in their shoes?

Then there's the "MYTH: The Creative Freedom Foundation is advised by Telecom a employee, plus a member of Vodafone’s comms team."

Are you 100% sure that CFF was actually being advised by these people? Are you actually 100% sure that these supposed advisors were in fact conciously acting in their employers interests? Given your inability to grasp the minutiae of Section 92A’s implications or even those of the proposed code of conduct I’d say you're pretty brave making these bold statements.

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Are you just trolling for ad views, or do you have facts to back up your insinuations against the CFF? I'm a copyright holder in most of the software code that I write, but S92A doesn't help me as a rights holder. All it does it raise compliance costs based on unworkable legislation.

You claim that it is a myth that ISPs will terminate accounts based merely on accusations. But it defies common sense that smaller ISPs will risk being hauled through court by major rights holder organisations instead of simply caving to accusations they have no competence to adjudicate.

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