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It's the law

Juha Saarinen, Newsline Editor. 27 May 2011, 3:45 pm
It's the law

Imagine if we were to introduce a law that criminalises a very common act. Next, imagine if we said that if you're guilty upon accusation.

Not content with that, we then make it perfectly legal for the accuser to hand in false claims and allegations.

How could we make that law better? Easy: by making it impossible for you to challenge or to defend yourself against the accusations.

The above refers of course to that hobby horse of mine, the new Copyright Act that kicks in this September.

Today's the last day for submissions on the regulations for the Copyright (Infringing File Sharing) Amendment Act which will basically decide on how the law is enforced. I know that many people have put in excellent submissions, loaded with common sense and out of concern for our liberties, privacy, fairness and economy, all of which are being eroded by the new law.

Are they though? I've had conversations with MPs about this, the people who passed the law none of their voters asked for. They say everything is fine; we wouldn't pass a law that makes people guilty upon accusation.

That's great, but when legal beagles tell me the opposite and point to how existing law work in the same respect, I'm starting to feel worried.

Take challenging infringement notices for instance. If you want to challenge one, most people I've talked to who have studied the law say you must show evidence that you didn't engage in "infringing file sharing". If you can do that, it's then apparently up to the rights holder to go back and prove that the infringement took place.

How would you prove that you didn't dabble in infringing file sharing though? Help me out here; I can imagine there being four possible defences:

  1. Your modem was turned off or you were otherwise disconnected or not logged onto your ISP at the time the infringement is said to have taken place. Log files from your ISP can be produced to support this.
  2. It's not physically possible for you to have infringed with that shared file because:
    1. Your monthly data cap is smaller than file;
    2. Your Internet connection is too slow to download the file in the time claimed.
    3. You produce ISP logs with full details of all your Internet traffic for the time given in the infringement notice.

Number 1 could work for some types of connections, but you'd have to remember what happened at the time. Most people leave their DSL and cable modems turned on all the time too.

Number 2.2 and 2.3 would be sad to have to rely on, but if you have a 5G data cap and are told that you've shared a 10GB file (which on bit torrent would generate more traffic than just 10GB) then go for it. Unfortunately, your Internet connection would have to be slower than dial-up for 2.2 to work but non-techies might not understand that so maybe.

Number 3 would be very powerful, but it's also totally unlikely. ISPs do not log everything you do on the Internet, and thank goodness for that. The privacy and security implications would be horrendous, as ISPs would have to break encryption to log all the traffic details.  It wouldn't be sufficient to log just the IP addresses to certain sites, because you would need to show what type of traffic and how much of it was exchanged (or not).

Does that sound reasonable? Have I missed something? Please let me know.

Correspondingly, how can rights holders prove what you did without access to your ISP's network and breaking encryption? One way would be if they were granted the right to seize computers and storage of alleged infringers in dawn raids, but here's hoping it won't go that far.

I look at the above with the realisation that very few if any person or organisation in New Zealand could supply such evidence. Even if you had your own logging device, I doubt the data from it would be accepted.

Contrast these onerous requirements with the requirements for the rights holders' evidence. As far as I can tell, it doesn't even have to be true. There are no sanctions if you make things up and accuse someone innocent of copyright infringement over the Internet.

In this, we're following the example set by the UK and the US where shaking people down for infringement settlements has become a lucrative business.

With up to fifteen grand per accused at stake and not even a slap around the wrists with a wet bus ticket if you make things up, there's plenty of incentive to go through the admittedly slow notice on notice and then Tribunal process, especially if there's no way for the accused to defend themselves.

It does make for a type of intellectual property business but is it really the one we want for New Zealand?


Please note: the above does not depict our elected members of Parliament trying to figure out the Intarweb.

I'll leave you with some more reading, this time an excellent story about Nashville software developer Tyler Hall, and how he battled piracy. Truly creative.

And do you have something to say on any matter ICT? We're always open to contributions to Newsline on all sorts of ICT topics. Drop me a line if you're interested in having your voice heard.


You can follow Juha on Twitter and send tips, flames, suggestions and contribution ideas to him there, or to newsline@nzcs.org.nz.


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Ashley Steel 28 May 2011, 6:16 pm

"Its the law" always reminds me of:


Nice post as usual Juha ;)

Juha Saarinen 09 June 2011, 3:16 pm

Thanks - for the kind words and picture. :)

Rhys Lewis 03 June 2011, 2:25 pm

"if we were to introduce a law that criminalises a very common act." Isn't it already illegal to distribute copyrighted work without the permission of the author? Not to mention just bad manners. For example if I took your article above and sold it as my own work to a newspaper how would you feel about that?

Guilty until proven innocent is common in our legal system, but not universal. Traffic infringements are a common exception - for example if a worker for the city council claims that you have parked on a yellow line, you are liable for a fine unless you can prove your innocence. Or if a police officer claims that they recorded you travelling at a certain speed, there is virtually no way that you can dispute it, and are liable for hundreds of dollars in fines or losing your license.

There may be a small number of innocent people who accused of file sharing (and get one "strike" as a result - big deal!), but the majority of actions will be against people who are distributing copyrighted works without the permission of the copyright holder.

Perhaps we could improve copyright law wrt. fair use, but until we do, the debate about this regulation is on par with the roads being full of Mad Max speedsters who are complaining about speed tickets.

Paul Matthews 03 June 2011, 2:37 pm

Thanks for your comment, Rhys.

I think the key point you are missing is that parking infringement officers and Police are impartial third-party officials with training and accountability for observing speeding and illegal parking and consequences for getting it wrong. They are public servants paid to enforce the law with objectivity and impartiality.

Under the new Copyright regime it is Copyright owners who are making the accusations - with vested interest and no consequences or accountability for making false accusations.

The result is that the bar is low. If they think there's a *possibility* you might have infringed, irrespective of how sure they are, it's in their interests to make an accusation which as Juha points out is near impossible to defend. If they got it wrong, which overseas experience suggests will happen frequently, tough. There are no consequences for false or vexatious claims.

Nobody's saying people should be entitled to infringe Copyright or that this should go unpunished. What NZCS and others are objecting to, amongst other things, is the fact that someone can make an accusation which is near-impossible to defend against and could result in very significant penalty - large fines and potential Internet disconnection.

That's really not a good thing for New Zealand.

Rhys Lewis 03 June 2011, 3:05 pm

The reason I brought up parking tickets is that I was once fined by a court for an infringement committed by someone else because I did not produce sufficient evidence that I was not the owner of the car. The council prosecutor even read out the name of the actual owner during the trial, and conceded that he was the person who committed the infringement.

Why would a copyright holder think there is a possibility of you infringing? They are trolling peer to peer networks looking for IP addresses that are hosting copyrighted material. Given the amount of sharing that's going on it's basically shooting fish in a barrel.

Another approach would be to take the evidence to court and prosecute the file sharers in the full justice system. Would you prefer they did that?

Juha Saarinen 09 June 2011, 3:23 pm

Hi Rhys,

The current copyright legislation doesn't really take into account the fact that the Internet is built around the principle of everything being copied.

You share files whether or not you intended to do so. The politicians who wrote the new law don't understand that.

Users can't easily tell what's copyrighted and who is the copyright holder. Am I infringing copyright by going to a website with (c) on it, downloading it to my computer and viewing it? Then to compound my crime, I'll forward some web pages to friends because I liked it.

Proposed legislation in the US says yes I am. They're working on banning linking to copyrighted works there.

Christopher Wood 23 May 2012, 7:21 pm

I wrote about how copyright trolls could use the law to fine *any* internet user, regardless of whether they use P2P cyborgs.wikia.com/wiki/Fine...

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