WikiLeaks cables: US govt pressured NZ over internet file sharing law

Yesterday, WikiLeaks put 1500 cables from the US embassy in Wellington online.

Several deal with the controversial "s92" or "three strikes" provision of New Zealand's copyright law which began under the last Labour government, and culminated in the passing of the The Copyright (Infringing File Sharing) Amendment Bill.

$533,000 for NZ lobbying
In one, from April 2005 and spotted by Canadian academic Michael Geist (who last year visited New Zealand as a guest of the privacy commissioner), under a heading "Targeted to US priorities" the US government offers to bankroll local lobbying efforts.

Geist summarises: "The US expresses its willingness to pay more $533,000 (complete with a budget breakdown) to fund a recording industry enforcement initiative. The project was backed by the Recording Industry Association of New Zealand (RIANZ) and the Australasian Mechanical Copyright Owners Society (AMCOS). Performance metrics include:

"The project's performance will be judged by specific milestones, including increases in the number of enforcement operations and seizures, with percentages or numerical targets re-set annually. The unit also will be measured by the number of reports it submits to the International Federation of the Phonographic Industry (IFPI) on its contributions to IP protection and enforcement methodology.

The proposed budget included four salaried positions, legal costs for investigation and prosecution, and training programs. The RIANZ still runs an anti-piracy site, but does not include disclosure about the source of funding. It certainly raises the question of whether New Zealand is aware that local enforcement initiatives have been funded by the US."

RIANZ, asked for comment this morning, had yet to make any response by late afternoon.

Speed S92 redraft
In a more recent cable - like the above, unclassified – the US Wellington embassy comments on the National government's decision to suspend section 92a (s92) of the amended copyright law.

Dated March 4, 2009, it reads that "It now will be crucial to monitor the progress of GNZ [government of New Zealand] redrafting to ensure it succeeds in a timely manner".

After elaborating how US officials were able to meet with Ministry of Economic Development (MED) and Ministry of Foreign Affairs and Trade (MFAT) over the bill, the cable concludes "Embassy will continue to stress with GNZ officials the need for a shorter rather than protracted timeline."

The cable has been seized on by No Right Turn as an example of the US government applying pressure.

And it is chilling to see in black-and-white.

Yet, equally, you'd be hard pressed to make the argument that National hustled the revised version of S92 through Parliament.

True, the revised law's second and third readings did take place under urgency last month, leading to some clownish debate.

But that was nearly two years after the US government expressed their desire for it to go through in a "timely manner", and it still doesn't come into effect until September 1.

US offers to help with rewrite
The same cable also includes an offer to help redraft S92.

Specifically, "We've proposed holding DVC(s) between NZ and U.S. interlocutors to possibly help with drafting and as a public diplomacy tool to dispel public misperceptions about proper role of IPR protection. U.S. agencies have the  benefit of 10 years worth of experience in enforcing the U.S.  Digital Millennium Copyright Act that may serve useful to New Zealand officials in their effort to implement s92A.  

But again, you'd be a bit hard pressed to say the revised internet file sharing law, passed April 14, was written by Uncle Sam.

In many ways, Labour, plus lobby groups like InternetNZ, Tuanz and the Creative Freedom Foundation (the group that intiatited the original Facebook/Twitter blackout campaign) have left more of an impression it on the rewrite.

It certainly maintained one provision that the US government, and US-based media multinationals, will be very happy with: the presumption of guilt, and the onus on an accused pirate to prove their innocence.

Yet it also makes copyright holders responsible for the cost of complaints (an issue raised in the cables).

Under the original version of s92, ISP's could boot you off.

While the revised law it maintains a provision for account termination, it can only be by an order-in-council (that is, and order created by a cabinet minister then signed by the Governor General). Labour was happy with this compromise, which communications spokeswoman Clare Curran said had effectively "shelved" the possibility of termination.

ISPs are removed from the enforcement and adjudication process altogether, which is now to be handled by the independent Copyright Tribunal - which, with three part-time members (soon to be five) is in no position to mount any significant crackdown (in France, which passed a similar law, authorities have been snowed with 5000 copyright infringement complaints a week).

US objection to format-shifting
Michael Geist also notes a cable that revealed the US government's objection to our new copyright law's format shifting provision, which lets other members of the same household copy a disk or downloaded work.

Again, this level of interference seems objectionable. The US has a similar fair-use provision in its own copyright law but wants other countries to have a tighter standard - presumably the better to boost the market for record labels and Hollywood studios.

But, as above, the US embassy didn't enjoy much lobbying success. New Zealand's copyright law maintained its sensible format-shifting provision.