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7:55 am Mon
Aug 1, 2011
New Zealand's new copyright law provides for Internet disconnection for anyone whose Internet connection has been used by someone (or several someoneones) who are accused of three acts of copyright infringement. While the UN has condemned this law as disproportionate and disrespectful of human rights, its proponents often talk of its "simplicity" as a virtue (as in, "well, anyone who thinks about infringing copyright will be able to understand this: you download, you lose your network connection").
But as this three-page flowchart from the Telecommunications Carriers' Forum demonstrates, the process of disconnection is so ramified and baroque that it requires deep study just to get your head around, and easily answering questions like, "How do I appeal this?" is anything but simple.
Copyright (Infringing File Sharing) Amendment Act - process diagrams
(Thanks, Juha!)
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So, what you’re saying is that everyone in New Zealand now has to ask anyone who wants to use their computer if they’ve ever downloaded copyrighted material.
Gee, should they ask them if they’re Jewish too? Or if they’ve ever taken a picture of a child that someone interpretted as sexual in nature? Are we ALL becoming Nazis?
I don’t support this law for many reasons, however, I can’t say those flowcharts are one of them. They seem reasonably easy to understand to me.
I agree, those flowcharts are pretty straightforward as an outside view of the process. For the purpose of educating account holders who may receive notices, I think a different presentation would be better. Most of the complexity is within the IPAP realm and while the outcome of their processes matters to account holders, those outcomes could be presented more clearly in another fashion for that audience.
It’s interesting that Cory mentions getting network access cut off as outcome but these flowcharts make not mention of it. The only penalty mentioned in the charts is for the account holder to pay an award determined by the “copyright tribunal” (I wonder what color their hooded robes are). I can’t keep track of all the bad ideas of every nation, are these flowcharts incomplete?
The option to disconnect is in the law, but not activated currently. It can be activated at any time by the government through an Order in Council (http://en.wikipedia.org/wiki/Order-in-Council). As for when disconnections may come into effect, the government has said the three-strikes regime will be reviewed by rights holders, to see if it works or not. If not, disconnections for up to six months will be part of the punishment. That’s how it was done in the UK, apparently.
As far as I can tell, the result of the “appeal” process (on page 2 of the flowchart) is up to the alleged copyright owner, not some even-nominally-independent arbiter. WTF?
If you’re going to have a process like this, having the copyright holder as a first point of appeal isn’t bad. They’re probably using automated systems for identifying possible infringement so the account holder can give some reason why they think the notice is unwarranted, whether it’s a false positive (“my name is ‘Harry Potter’ and it was a video of myself I posted), finger pointing (“my access point was open for a couple of weeks but I’ve since put a password on it”), or a case of New Zealand’s version of fair use (“I used just a clip in my review of your movie”). I suppose the account holder could could even use the process to ask for forgiveness/permission.
Some human being is going to have to examine appeals and if they’re with the copyright holders that means the effort is distributed, there are some assessments they are in a better position to make, and for false positives they’re in no worse position. Copyright holders will tend to have an overly restrictive view of fair use and its equivalents so there should be at least one other step beside the appeal to copyright holder that can review cases. From the flowcharts it seems the copyright tribunal looks at cases and at minimum can decide no award is necessary. Hopefully they can go further than that and decide the notice shouldn’t have been sent in the first place.
A fair system would (a) require the purported copyright holder to verify the accuracy of their claim before sending it, with penalties for filing (too many) invalid claims, and (b) have an independent arbiter at all relevant steps of the process.
Maybe there are additional details not show in the flowcharts, but as far as I can tell, there is absolutely no incentive for the copyright holder to *ever* agree that they have made an invalid claim.
Yes, weeding out obvious false positives before requesting notice be sent would be better but since this flowchart doesn’t address how copyright holders start the process that may already happen. Or not, there are lots of copyright holders out there and each may choose to do something different. I agree that some penalty for wasting time on BS notice requests is a good idea.
Who’s going to pay all those independent arbiters, how do you make sure they’re unbiased?
I don’t think I’ve ever seen a system in practice that includes disincentives for invalid copyright claims. Theoretically the US DMCA has some but it doesn’t happen in real life. The only disincentive I’ve seen in practice is the extra-legal one of bad PR.
In this system, if the awards determined by the copyright tribunal are small enough, it won’t be worth the copyright holders’ time to spam IPAP.
Most accusations of legal wrongdoing are handled by courts. Courthouses and judges are paid for by taxes, and in many cases the party bringing suit must pay a filing fee. This serves as a pretty effective way to ensure an unbiased tribunal while discouraging excessive BS notice requests.
As it stands, rights holders can make as many unfounded accusations as they want with no penalty (this can be automated because false positives are not discouraged). However, the accused must [pay in time and money to] defend themselves every time, because they are presumed guilty without proof if they do not. At the very least, it should be free for the accused to appeal the accusation, with the burden of proof on the accuser to substantiate the claim of infringement, especially with a punishment as severe as removal from the internet. I don’t lose my phone if I call you put the handset up to my iPod, nor my car if I drive a usb flash drive over to you, even those these are also methods of copyright infringement.
Companies should only take legal action against infringement when it’s actually worth it- go after a factory making counterfeit cds and dvds, sure, but leave the old lady with the unsecured router and the teenager looking for new bands alone. Those who infringe are also, on average, their best customers.
I think every internet user in New Zealand should download 3/4 of Metallica’s entire collection twice, then stop, just enough to receive two warning notices then stop and do not download any more copyrighted material and then delete the 3/4 of the file. this will cost the rights holders $80, $40 for each notice sent out, it will result in no internet disconnection and no tribunal hearing. What it will do is cost the rights holders money and that might teach them something.
I wonder how much of a connection there is between this bill being passed through in urgency during an emergency christchurch earthquake hearing and the negotiaions between Warner Brothers and the National led Government over the Hobbit issues late last year.
Not that I’d call them Negotiations since it sounded like Key basically bent over and let them take what they wanted :/
For those who say the system is easy to understand, here’s what the blogger who posted the flowcharts, Rick Shera, partner at Auckland law firm Lowndes Jordan says:
“Now that the replacement Copyright (Infringing File Sharing) Amendment Act and the regulations to go with it have been put in place and we can see the final shape of the regime, the TCF has completed process diagrams and has kindly agreed to make these publicly available. It’s a pretty complex system when it takes 3 separate diagrams to explain it!”
Why not just get rid of the main problem: Copyright. It doesn’t work, it’s only used for censorship, bullying, and corporate abuse. Let’s do away with copyright and get some actual creativity back in the arts.
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@falcor again...