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Costly copyright enforcement confusion

Juha Saarinen, Newsline 2.0 editor. 02 September 2011, 2:12 pm
Costly copyright enforcement confusion

The first week of the new anti-filesharing law being enforced in New Zealand was pretty un-dramatic. An expected deluge of infringement notices from rights holders failed to materialise, perhaps due to the $25 processing fee payable to ISPs for each allegation and the big chunk of information required to support it.

What has become clear however is just how… err, unclear the new law is. End-users are wondering if it applies to everything on the Internet, on which by definition everything is built upon filesharing.

How much could torrenting a film cost you? A few hundred dollars, a couple of grand or fifteen big ones if you seed it?

If you do get a notice, it may be possible to challenge it. How this is done in practice isn't explained anywhere. Apparently, the infringement notices must contain an explanation of how account holders may challenge them, and also include a form for doing so.

The explanation must be supplied with fifteen other pieces of prescribed information or else the notice is deemed not compliant with regulations and invalid.

Phew. Now, who receives the notices, checks the details to see if they're valid or not, and if they are, sends them onto account holders? It's the same organisation that receives any challenges to notices, checks those, and passes them onto rights holders if they're correct. Everything has to be done in a timely fashion too, so as not to derail the notice process - although nobody knows who's at fault should that happen.

That's your ISP of course, sitting in the middle of an enormously complex process that could span months, and receiving a paltry $25 for the trouble.

The $25 only goes towards infringement notices processing. As one ISP pointed out, there's some real uncertainty as to what is required should a rights holder decide to appeal to the Copyright Tribunal.

ISPs may for instance have to provide evidence at Tribunal hearings or through documentation how they matched IP addresses with account holders. In practice, this could mean keeping logs of addresses for a year or longer. This could be interesting for large ISPs and especially onerous for anyone providing temporary Internet access.

Of course, the confusion could be a deliberate ploy by authorities and I think it may indeed be. Fear, uncertainty and doubt makes for a powerful threesome. Scaring people off bit torrents is one outcome and encouraging ISPs to take measures against file sharing so as to avoid being swamped by infringement notices is another.

The whole thing may end up working "better" than the government wanted, with ISPs starting to filter Internet access with intrusive technologies and upping charges to recover costs.

A requirement to positively establish account holders' identities would seem to be a requirement too, now that they're legally responsible for the content that traverses their Internet connections.

For smaller ISPs on thin margins, the copyright enforcement is a nightmare scenario that could threaten their viability. Was that the intention of the law? I can't answer that, but for an Act that's been in the pipeline for the best part of a decade, it certainly is a remarkably unclear piece of law.


Snippets from this week

Immensely amusing for inexplicable reasons: GoBarbra.


Microsoft laying down the funny on VMWare.

Journo publishes Assange's password for the encrypted and... unredacted Wikileaks archive.

Apple employees go to bars and lose iPhone prototype (again) and hard drive with secrets (genius).


That's it for this Friday. Before I go, if anyone has seen an infringement notice, or been sent one and is willing to share it (confidentially of course), please forward it to me. I'd love to see a compliant one, so as to clear up a few things for myself.

Actually before before I go. Craig, the admin of posted this experiment on a mailing list:


I have made a file up and I have 100% copyright to it (as I made it). No one has any permission to view/download/copy/reproduce or anything the file except me (and there is only one of me)
The file is at . Do NOT download or view it or anything the file. I'm just filesharing the location of it so I don't forget the location but no one else is allowed to see it.
Now lets see how many automated systems download the file or humans try and view MY file.



You can follow Juha on Twitter and send tips, flames, suggestions and contribution ideas to him there, or to [email protected].


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