A Response to Roger Shepherds Article(crossposted from CreativeFreedom.org.nz)
Today's Dominion Post published an opinion piece by Roger Shepherd about Section 92A. The article talks passionately about New Zealand music and then decides that S92A is the solution.
Firstly, Roger Shepherd evidently cares passionately about New Zealand music and this should be applauded.
There is not however any description of Section 92A -- other than that it relates to copyright infringement online -- within the article. The practical issues around enforcement of data forensics and copyright law are also not talked about.
As you will see the Mr Shepherds article is a blunt response to a subtle issue and it misrepresents many of the arguments,
In the current argument over Section 92 of the Copyright Act, several issues have been ignored or distorted. It seems to have been forgotten that downloading music or film without paying for it is stealing.
No one has forgotten that, and no one is seriously saying that this is not copyright infringement. Mr Shepherd appears to be arguing a black and white case - that you are either for this law, or believe in stealing. This stance is both ill-informed and absurd.
S92A requires ISPs to act upon accusations of copyright infringement and to punish with internet disconnection before a trial and before the evidence has been held up to court scrutiny.
There are workable alternatives to S92A that provide justice for artists, justice for the accused, and a copyright system that is worthy of public respect. Although perhaps noble in it's intent S92A is corrosive to the public trust in copyright education that the artists benefit from, and it risks undoing the social contract that underlies copyright; encouraging illegal downloads and taking money away from the creative sector.
Those experienced in dealing with copyright infringement accusations have recently announced some statistics from Google,
the rights holders insist that their evidence is waterproof and will hold up in court, even though they don’t want to go to court with it.
Is that so? Not according to Google, which has produced statistics showing that 57% of takedown notices received under the US Digital Millennium Copyright Act (DMCA) were sent by businesses targeting competitors. Invalid claims made up 37% of the total DMCA notices.
With those sort of figures, and [New Zealands] Judge Harvey pointing out that 30% of all copyright lawsuits fail because ownership cannot be proven, there’s no way we can trust "rights holders" to adjudicate infringements.
CFF agrees that copyright infringement is something that needs to be illegal in the eyes of the law, and that this is as Roger Shepherd says a sign an a civilised society, however S92A falls well short of being an effective law that targets guilty offenders.
These laws have also been used maliciously by disgruntled employees, by businesses against competitors, and by those seeking to restrict critical commentary and free speech resulting in harm to basic public rights.
When France proposed a similar directive based on presumptive guilt it was struck down in the European Parliament as being against "a fair balance between the various fundamental rights"
We need good copyright law but this is not it.
An APRA member, Anthony Milas, says: "This law is poorly written and poorly thought-out in such ways that could lead to abuse of the basic human rights of ordinary individuals. If anything the public backlash sure to result from such a situation will make it even more difficult to educate the public and convince lawmakers of the necessity of sensible laws to protect creators rights."
Roger Shepherd ends his article without demonstrating an understanding of S92A and yet wishing it to be forced upon the New Zealand public,
It is not the whole answer, but at least we get to tip things back towards the artist and his interests. Let's get on and implement it and remove the doubt and confusion that currently exist. If there are faults or problems with the process, they can be ironed out as it develops.
There are faults and problems, and here are ten of them...
Ten Problems with Section 92A
1. No Independent Qualified Adjudicator: There's no currently qualified or trusted independent 3rd party to judge (1) data forensics and (2) copyright law, so decisions must be based either on allegation or prosecution. Our positive solution to this is an extension in jurisdiction to the underutilised Copyright Tribunal (who currently handle only licensing disputes, of approximately one per year).
2. Unclear Legislation: People don't know how to obey the law because it's poorly drafted and vague. The heavyweight TCF policy was written by and for conventional ISPs and it is inappropriate for the majority of "ISPs" under the new broad definition that includes libraries, schools, businesses, many homes, hotels, etc.
3. Innocent People Framed: People can be easily framed for copyright infringement online, see http://dmca.cs.washington.edu/ . There are hundreds of Data Forensics experts in NZ that can tell the difference but expecting thousands of untrained businesses to do the same is impractical and ridiculous.
4. Impractical and Technically Unrealistic Demands: Tens of thousands of internet devices in New Zealand are incapable of storing who accessed what, at what time, making corroborating accusations impossible. It would be like expecting, come March 27th, for all New Zealanders to be able to track who used a phone within a household or a business. Most phones just don't have that capability, and most network devices don't have that capability. Accurately tracking copyright infringement is a noble goal to head towards but we're not there yet and therefore S92A is unrealistic and impractical. Government could amend the definition of an "ISP" to be instead a "CSP" (commercial service provider) which would reduce the scope to conventional ISPs like Xtra and Vodafone who are capable of tracking. They could then increase the scope of an "ISP" as internet hardware improves. In the meantime people can still be taken to court as they always could to resolve disputes (or possibly a Copyright Tribunal if that's established).
5. Business Compliance Costs: The business compliance costs of tracking (a practical necessity to corroborate future accusations) both in terms of buying tens of thousands of new hardware devices for the businesses now deemed "ISPs" have not been factored. Consumer-grade internet hardware devices capable of doing this cost approximately 0. We have been doing research on this and we may have some results early next week. It'll certainly be tens of thousands of "ISPs" who need to spend that kind of money... and then you need data forensics and copyright law knowledge to use that tracked information.
6. A Disproportionate Punishment: Internet disconnection is a disproportionate
punishment that hasn't been enforced by the courts in the past, even in extreme cases of copyright infringement (repeat commercial infringers as judged in a court didn't get this punishment). Fines would be more appropriate and would protect businesses and home users. Music Industry studies suggesting people prefer internet disconnection to fines did not consult businesses or organisations (many of whom depend on the internet as much as a phone line). Further, the law doesn't distinguish between a copyright infringement such as a thirteen year old's self-written Harry Potter story (which if it uses the Harry Potter characters is copyright infringement) Vs. distributing thousands of movies illegally. Allowing fines would allow appropriate punishment.
7. Harms Respect For Copyright And Artists: Although perhaps noble in it's intent this law is corrosive to the public trust in copyright education that artists benefit from, and it risks undoing the social contract that underlies copyright; encouraging illegal downloads and taking money away from the creative sector. As artists we're being very clear to distance ourselves from those companies pushing for this law so that the public know who is responsible for future injustices. On the issue of S92A we represent 9037 artists, out of 18,146 people (and 90% of these are New Zealanders).
8. Business Risk: ISPs choose disconnection or connection under threat of being secondary copyright infringers themselves, or wrongfully terminating a customers contract. This is an unreasonable burden to place on thousands of businesses who are now deemed "ISPs". Thousands of untrained people cannot be experts at data forensics and copyright law.
9. Business Risk From Employees: For many businesses disconnecting a staff members internet may be like removing their phone line, effectively firing the employee. While inappropriate use of company services should result in dismissal there are obvious problems if the employer is unsure of the evidence, and associated risks in employment law.
10. Reverses the presumption of Innocence: S92A calls for punishment with internet disconnect without due process and without evidence judged by experts. The "courts" under S92A policies are thousands of untrained "ISPs" and they operate under the threat of either 1) being secondary copyright infringers themselves if they make a wrong decision on copyright or data forensics, or 2) contract or employment problems of disconnecting people without really knowing if anything wrong was actually done. Businesses are risk averse, and untrained people may decide on who is the bigger risk to them -- the accuser or the accused. In practice the accused doesn't get anything resembling due process and it's our opinion that most people will be considered guilty upon accusation.