As I type this, there are 19 days left until section 92 of the copyright law comes into effect. Last week Wednesday the Telecommunications Carriers’ Forum (TCF) published the draft copyright code of practice for Internet service providers. This code will be what the bulk of ISPs will be following when dealing with section 92.
I thought I’d take a quick look to see how this is all going to work (or not work as the case may well be).
First off the code of practice is just over 30 pages long, considering that section 92 is just shy of 850 words you kind of get the feeling an awful lot of detail was left out of the law, which is of course what everyone has been complaining about.
From a end-user’s point of view, the nub of the process is as follows:
- A copyright holder sends a notice to your ISP claiming you have infringed on their copyright i.e. illegally downloaded some music or a movie or perhaps used one of their songs in your kids birthday video etc…
- If the ISP feels the copyright holder has supplied enough evidence, your ISP sends you a Education notice (how very soviet)
- At the end of every month, your ISP will send you an email detailing how many notices you have.
- Once you have accumulated 3 undisputed notices, each in different calender months and they haven’t expired then you get a Final Warning (notices expire in 18 months).
- If a copyright holder then sends another claim to your ISP, you are notified and your Internet account is terminated in 48 hours.
Seems pretty straight forward and even reasonable but as with all things there are some interesting twists.
Perhaps the most interesting is that there are two types of groups that can receive a Education Notice. The first is called a User by the code, which is basically you and me.
The second group is called Downstream ISPs by the code. This group obviously covers resellers of bandwidth but more importantly: “may be a business or other organisation that supplies telecommunication services, membership or subscription services or otherwise directly provides Internet Accounts to Users. In turn, Users who are individuals may be students, employees, contractors or customers for example”
Yep that’s right any business that gives their staff Internet access or schools, libraries, hotels with Internet access, even coffee shops with wi-fi hotspots are all Downstream ISPs. Furthermore the code states that when an ISP passes on a notice to a Downstream ISP it does so relying on the fact that as an “ISP” the Downstream ISP has implemented a termination policy that complies with section 92A !
Wow, I wonder if businesses out there know what they are in for and how much is it going to cost them to come up with policies and procedures to deal with this? Of course if they don’t then they are breach of the law. Did I mention this law comes into effect in 19 days time :)
Of course the code has a mechanism for you to dispute a notice and disputed notices don’t count towards termination until they are resolved. The code makes it fairly clear that to dispute a notice you have to have strong evidence to prove your innocence so you won’t just be able to disputed every notice sent your way.
This is where another wrinkle turns up.
As written the code uses the ISP as a middle man for the dispute process when it is a User countering the claim but tacked onto the back of the draft code is a “reworded strawman counter-notice procedure” which has been drawn up to “address concerns expressed by certain Copyright Holders” . In this reworded procedure a Copyright holder is passed the contact details of a User who is disputing the claim!
This of course opens up some interesting issues. If you don’t dispute a notice then you remain anonymous but if you try to fight “they” find out who you are. I suppose this means that they could file legal proceedings against you and it of course would allow the copyright holders to build up a database of trouble makers. It all seems a bit fishy that the copyright holders would be pushing for this change.
[Update]: Actually as the Creative Freedom guys point out the reword is actually far more insidious. It would in effect make the Copyright holders not only the accusers but also the judges on any counter claims and disputes ! This is just nuts, it would make the entire code of practice a farce.
I’d suggest you have a read of the code to see for yourself what we are in for. The draft is now open for public submissions which close on Friday the 6th March 2009, but since the law goes into effect on the 29 February 2009 you have to wonder what processes will be followed before the code is ratified.
Perhaps another sign that this law just hasn’t been thought out.