NZ Govt trying to rush through file sharing law

posted 12 Apr 2011, 22:52 by James Williamson   [ updated 13 Apr 2011, 08:10 by Jess Maher ]
Well well...looks like the Christchurch earthquake is being used as an excuse to rush through all sorts of other legislation under urgency also.



Now whether this gets through or not this time, it seems fairly inevitable that "official" banning of file sharing is on the cards sooner rather than later. 

Some interesting points to note as compared to similar laws overseas; this still does not criminalise file sharing, it remains a civil matter. Quite rightly too, as of course copyright infringement represents loss of anticipated profits rather than deprivation of actual physical property from the rightful owner - the actual cost of a digital file copy is basically zero, so this is not the same as stealing intangible goods like power or toll calls. The main new features that go beyond the original copyright act are that it makes it somewhat easier for rights holders to take action over infringement, there is a maximum penalty set at $15,000, and offender's internet access can be blocked for 6 months for repeated violations. So obviously the NZ government is rejecting the view taken in some jurisdictions that internet access is a basic human right. The s 122MA also seems quite a departure from standard legal practice in that it sets a basis of "guilty until proven innocent" for any enforcement action that must be rebutted by the accused, which until now has only been the case in very rare situations, involving serious crimes...file sharers are deemed to be on a par with drug dealers, child pornographers and terrorists it seems!

The main issue I can see is that of enforcement - specific details need to be provided of which copyrighted work was uploaded or downloaded to and from which IP addresses, and what date this took place on. It is unclear how rights holders are meant to be detecting the infringement, and liability of the ISP is limited so long as they send out the infringement notice in timely fashion. However the ISP is able to charge costs to rights holders for taking enforcement action estimated at between $14 and $56 per notice, so this means it will cost a lot more to the rights holder to take action, that what they would have received for selling legitimate copies of most individual music or video files. Still, especially with the limited liability of ISPs, it is hard to see how this would not be defeated by strong encryption, or even just proxy IP address services.  

Also there doesn't seem to have been much consideration of shared IP addresses despite this being a main point of objection when the bill was debated in November...if this is strictly enforced against the IP address that the infringement occurred from, then we could see the internet accounts blocked of universities, high schools and libraries up and down the country! Or conversely if enforcement is strictly limited to the account holder, then there could be a great deal of legal argument about whether parents should be expected to be aware of what their kids are downloading on the home internet account at all times, or whether account holders are legally required to secure their networks so third parties cannot download infringing content through unsecured networks without the account holder's knowledge.

Overall this is a reasonable effort to address what is clearly a widespread issue, but it reads like the politicians and drafters were a bit out of their depth when it comes to how the technology actually works in practice, and what this means for trying to cover the area with legislation. If this passes, then expect lots of case law to resolve the ambiguities, and no doubt an amendment in a few more years time once they have identified all the problems with this version!


#eqnz #blackout
 

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Jess Maher,
13 Apr 2011, 05:15
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Jess Maher,
13 Apr 2011, 04:05
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