Looks like file sharing bill will be passed.

posted 13 Apr 2011, 04:59 by James Williamson   [ updated 13 Apr 2011, 23:14 ]
Some interesting viewing on parliamentary TV this evening watching the debate of the Copyright (Infringing File Sharing) Amendment Bill, particularly liked the insight from Green Party MP Gareth Hughes and Labour's Claire Curran and Jacinda Ardern. Debate has now closed for the night, but from the way the voting has gone it looks pretty certain to be passed.  

So several points come to mind. Firstly, this seems to be quite biased towards the interests of rights holders who are large companies (and likely based offshore). If the burden to pursue action falls on rights holders, then only those with substantial resources available are going to be able to spend time trawling the torrent sites for infringing copies of their IP and track down the identities of downloaders. Especially when you consider the fee payable to the ISP for every infringement notice they send out, and the paltry percentage of royalties actually received by the actual author or artist (as opposed to their publisher or record label), this is clearly a process that will be used much more by big multinationals than by the struggling content creators whose interests this is supposedly protecting. 

In answer to my question about how downloaders are identified I have been told that the way many people have been caught downloading copyrighted content, is that the rights holder will upload it on to torrent sites themselves, then just track who downloads the "bait" torrent and record their IP address. Now this seems a bit like entrapment to me, not to mention surely this would mean the rights holder would be in breach of the law themselves? I don't see any exception in the law allowing the uploading of content on to torrent sites by the rights holder in order to tempt third parties into downloading it illegally. Or the other conclusion could be that by voluntarily sharing their copyrighted content online via public torrent sites, the rights holders are choosing to waive their copyright themselves, so no breach has been committed by either party!

A third point is of course that this law will do nothing to prevent file sharing by those who choose to do so. Our politicians seem to forget that countries like China have far more restrictive internet restrictions than would be contemplated here, and have spawned large underground communities of hackers who for years have been developing software to circumvent exactly this kind of monitoring of users. A variety of services are available that will encrypt the user's data stream and bounce it between multiple nodes all over the world, making identification of an individual users IP address very difficult without devoting extensive resources to every single case. Of course many people will get "busted" by this law change, but who will those people be? Obviously if someone is downloading a file, they are demonstrating an interest in the content, and is a potential consumer that might buy it given the right circumstances...so how is it in the best interests of rights holders to selectively punish their core target market? The original uploaders that seem to be the primary targets will generally be sophisticated users operating through anonymising software that makes identification impractical, so the people getting caught will primarily be a bunch of young people downloading the latest Hollywood movie or popular music track - usually on an internet account that is actually in the name of their parent, school or university!

This just doesn't seem like good business sense. I tend to agree with Claire Curran's comments that this seems to be largely an attempt to cling on to outdated business models, driven by companies who might be better advised to move with the times. How hard can it be to set up a system so that domestic users pay a slightly higher bill for their internet, and ISPs just pass on the appropriate fee to the rights holder? After all it seems that some rights holders are uploading their content on to torrent sites themselves already, so why can the IP addresses downloading these torrents not simply be charged the $5 or whatever it would normally cost for a legitimate downloaded copy, added on to their internet bill, instead of being chased down and threatened with a $15,000 fine - obviously this would not work so well for school or university downloading, but using their systems for such purposes is already meant to be forbidden! Any system capable of tracking down users downloading copyrighted content and sending them infringement notices, would be equally capable of automatically billing those users a reasonable fee for the copy instead, and surely this would seem preferable to rights holders going to great expense to effectively alienate the very people who they want to buy their products...

I am reminded of the famous quote attributed to philosopher Baruch Spinoza;

"All laws which can be violated without doing any one any injury are laughed at. Nay, so far are they from doing anything to control the desires and passions of men that, on the contrary, they direct and incite men's thoughts the more toward those very objects, for we always strive toward what is forbidden and desire the things we are not allowed to have. And men of leisure are never deficient in the ingenuity needed to enable them to outwit laws framed to regulate things which cannot be entirely forbidden... He who tries to determine everything by law will foment crime rather than lessen it."

and from comments on the 3 News article, seems other people have had the same ideas already...




And from comments on the Stuff.co.nz article;



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James Williamson,
13 Apr 2011, 06:25
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James Williamson,
13 Apr 2011, 06:25
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