[wellylug] Section 92A

[Tim McKenzie]

On Thursday 08 January 2009 11:45:22 Geraint Jones wrote:
> There seems to be a lot of mis-understanding around this amendment,

You see what I mean, Mr Holloway?

>  From an end user perspective it is business as usual - all ISP's have
> an AUP, and in that AUP 99% of them have a statement like this :
>
> for example Telstra's AUP :
>
> "You agree not to use the Internet services or attempt to use or allow
> the Internet services to be used :
>
>     * in any way that is unlawful"
>
>
> Like it or not, copyright infringement is unlawful and has been for a
> very long time. all the amendments do is put the liability for
> non-action upon the ISP,

So the ISP is liable if they don't cut you off, and they're liable if they do 
cut you off unreasonably. Since the ISP is a private company, the benefit of the 
doubt will inevitably go towards whoever is most likely to initiate legal 
action against the ISP---probably RIANZ, rather than an individual or small 
business.

> the burden of proof is still with the person
> seeking to enfoce their cease and desist notice.

What level of proof will be required? Beyond reasonable doubt? I find this 
implausible, and so does Campbell Smith of RIANZ: 
http://www.stuff.co.nz/4705441a26513.html --- "impractical and ridiculous". The 
version of the Amendment Bill that came out of the select committee process 
required ISPs to "as soon as possible after becoming aware ... of facts or 
circumstances that make it apparent that the material is likely to infringe 
copyright in the work, delete the material or prevent access to it". Will mere 
likelihood be sufficient to cut someone off under section 92A? If so, the fair 
dealing rights in the Copyright Act will be severely hindered in practice.

But loss of internet access isn't just loss of property --- it's loss of 
liberty. The internet is the cheapest way to exercise freedom of expression. 
Losing internet access would mean losing access to many free markets, like 
TradeMe. The internet is also the most efficient way of learning what laws 
you're governed by. Liberal democracies have a principle called the 
presumption of innocence, meaning that people are presumed innocent --- and 
therefore can't be deprived of their liberty --- until they've been proven to 
be guilty. If, as I argue, loss of internet access is a loss of liberty, then 
Campbell Smith and I find it implausible that the implementation of section 92A 
will preserve the presumption of innocence in New Zealand.

> Traditionally the come
> back from an ISP could be "sorry, what are users do is not within our
> control so its upto you to get them to stop" - no longer can that be used.
>
> There is a huge amount of FUD (or as i prefer to call it steaming horse
> manure) propagating over this amendment. The wording is open-ended for
> sure :
>
> *Internet service provider liability*
>
> /92A Internet service provider must have policy for terminating accounts
> of repeat infringers/
>
>     * (1) An Internet service provider must adopt and reasonably
>       implement a policy that provides for termination, in appropriate
>       circumstances, of the account with that Internet service provider
>       of a repeat infringer.
>     * (2) In subsection (1), repeat infringer means a person who
>       repeatedly infringes the copyright in a work by using 1 or more of
>       the Internet services of the Internet service provider to do a
>       restricted act without the consent of the copyright owner.
>
> As the ammendment doesnt tell us what "appropriate circumstances" are
> this can be taken to mean the ISP just has to comply - but the other
> side of the fence is that the person persuing the termination has to
> prove that they are seeking the termination of "a person who repeatedly
> infringes the copyright" - if they can prove that to me - and i will aid
> them in tying IP's to users if needed then the user should be terminated.

So surveillance is the answer? What if New Zealand Post was required to cut off 
people's access to the postal service if it seemed likely that those people 
were using their service to infringe copyright? What if they started keeping 
records of addresses and return addresses on envelopes, and opening mail to 
check that it didn't contain someone else's copyrighted material?

> If you don't do anything unlawful you have nothing to worry about - if
> you do do unlawful things, then get smarter.

As far as I'm aware, I don't do anything unlawful on the internet, but I'm 
still worried. I do use peer-to-peer file-sharing services, sometimes with 
encryption. What if I upset RIANZ? Will they use my encrypted peer-to-peer 
traffic as evidence against me, and get my internet access cut off? What about 
free WiFi hotspots? Will they get cut off because some people use those 
hotspots for copyright infringement? If so, then I should also worry about 
internet access remaining artificially scarce and therefore artificially 
expensive.

> G

Tim
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