Rabidgremlin's soapbox

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:

1. 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…
2. If the ISP feels the copyright holder has supplied enough evidence, your ISP sends you a Education notice (how very soviet)
3. At the end of every month, your ISP will send you an email detailing how many notices you have.
4. 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).
5. 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.

This is a bit of a WTF. TV3 news has quoted someone from the Ministry of Economic Development saying that the reason for section 92 is that it is too difficult to identify any particular user and that given the number of users it is too expensive and time consuming to take them to court.

WTF? If it is too difficult to identify a particular user how on earth is section 92 going to actually work? Someone obviously has no clue.

Here is the full quote:

“While copyright owners can take legal action against those Internet users engaging in infringing peer to peer file-sharing, it is difficult for them to identify any particular user. In addition, they would then have to take the users to court.”

“Given the number of users, this would be time consuming and expensive. Section 92A is intended to provide a framework for dealing with infringing P2P file-sharing that has sufficient flexibility to allow ISPs to develop policies that take account of their particular circumstances,” said Emilia Mazur of the MED.

The Copyright (New Technologies) Amendment Act 2008 is not a bad bit of legislation EXCEPT for section 92 which allows a copyright holder to ask your ISP to terminate your Internet access if you infringe on their copyright. The problem with this is they do not have to provide any evidence to the ISP, nor are there any penalties if it is a false accusation !

This is just crazy. If you agree then click on the banner below and voice your concern.

Some more reading for you:

• Guilty till proven innocent
• Controversial copyright clause to be amended
• Ministers: why we changed the Copyright Act

Section 92 reads as follows:

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) 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.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

92B Internet service provider liability if user infringes copyright
(1) This section applies if a person (A) infringes the copyright in a work by using 1 or more of the Internet services of an Internet service provider to do a restricted act without the consent of the copyright owner.

(2) Merely because A uses the Internet services of the Internet service provider in infringing the copyright, the Internet service provider, without more,—
(a) does not infringe the copyright in the work:
(b) must not be taken to have authorised A’s infringement of copyright in the work:
(c) subject to subsection (3), must not be subject to any civil remedy or criminal sanction.

(3) However, nothing in this section limits the right of the copyright owner to injunctive relief in relation to A’s infringement or any infringement by the Internet service provider.

(4) In subsections (1) and (2), Internet services means the services referred to in the definition of Internet service provider in section 2(1).

92C Internet service provider liability for storing infringing material
(1) This section applies if—
(a) an Internet service provider stores material provided by a user of the service; and
(b) the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).

(2) The Internet service provider does not infringe copyright in the work by storing the material unless—
(a) the Internet service provider—
(i) knows or has reason to believe that the material infringes copyright in the work; and
(ii) does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or
(b) the user of the service who provided the material is acting on behalf of, or at the direction of, the Internet service provider.

(3) A court, in determining whether, for the purposes of subsection (2), an Internet service provider knows or has reason to believe that material infringes copyright in a work, must take account of all relevant matters, including whether the Internet service provider has received a notice of infringement in relation to the infringement.

(4) An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.

(5) Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.

92D Requirements for notice of infringement
A notice referred to in section 92C(3) must—
(a) contain the information prescribed by regulations made under this Act; and
(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.

92E Internet service provider does not infringe copyright by caching infringing material
(1) An Internet service provider does not infringe copyright in a work by caching material if the Internet service provider—
(a) does not modify the material; and
(b) complies with any conditions imposed by the copyright owner of the material for access to that material; and
(c) does not interfere with the lawful use of technology to obtain data on the use of the material; and
(d) updates the material in accordance with reasonable industry practice.

(2) However, an Internet service provider does infringe copyright in a work by caching material if the Internet service provider does not delete the material or prevent access to it by users as soon as possible after the Internet service provider became aware that—
(a) the material has been deleted from its original source; or
(b) access to the material at its original source has been prevented; or
(c) a court has ordered that the material be deleted from its original source or that access to the material at its original source be prevented.

(3) Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.

(4) In this section,—
cache means the storage of material by an Internet service provider that is—
(a) controlled through an automated process; and
(b) temporary; and
(c) for the sole purpose of enabling the Internet service provider to transmit the material more efficiently to other users of the service on their request

original source means the source from which the Internet service provider copied the material that is cached.