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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