A Law Blog
7 Jan 2009
Break out your tin foil hats. Yesterday, the blogosphere got wind of New Zealand’s “controversial” Section 92 amendment that requires ISPs to disconnect repeat infringers. A number of sites of varying degrees of blogitude have reposted their own version of the story. For instance:
In a case of “you’re reporting the most unreasonable possible interpretation of the text as the actual text”, here’s the actual and full text of section 92:
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.
92B Internet service provider liability if user infringes copyright
(1) This section applies if a person (A) infringes the copyright in a work by using 1 or more of the Internet services of an Internet service provider to do a restricted act without the consent of the copyright owner.
(2) Merely because A uses the Internet services of the Internet service provider in infringing the copyright, the Internet service provider, without more,—
(a) does not infringe the copyright in the work:
(b) must not be taken to have authorised A’s infringement of copyright in the work:
(c) subject to subsection (3), must not be subject to any civil remedy or criminal sanction.(3) However, nothing in this section limits the right of the copyright owner to injunctive relief in relation to A’s infringement or any infringement by the Internet service provider.
(4) In subsections (1) and (2), Internet services means the services referred to in the definition of Internet service provider in section 2(1).
92C Internet service provider liability for storing infringing material
(1) This section applies if—
(a) an Internet service provider stores material provided by a user of the service; and
(b) the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).(2) The Internet service provider does not infringe copyright in the work by storing the material unless—
(a) the Internet service provider—
(i) knows or has reason to believe that the material infringes copyright in the work; and
(ii) does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or(b) the user of the service who provided the material is acting on behalf of, or at the direction of, the Internet service provider.
(3) A court, in determining whether, for the purposes of subsection (2), an Internet service provider knows or has reason to believe that material infringes copyright in a work, must take account of all relevant matters, including whether the Internet service provider has received a notice of infringement in relation to the infringement.
(4) An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.
(5) Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.
92D Requirements for notice of infringement
A notice referred to in section 92C(3) must—
(a) contain the information prescribed by regulations made under this Act; and
(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.92E Internet service provider does not infringe copyright by caching infringing material
(1) An Internet service provider does not infringe copyright in a work by caching material if the Internet service provider—
(a) does not modify the material; and
(b) complies with any conditions imposed by the copyright owner of the material for access to that material; and
(c) does not interfere with the lawful use of technology to obtain data on the use of the material; and
(d) updates the material in accordance with reasonable industry practice.(2) However, an Internet service provider does infringe copyright in a work by caching material if the Internet service provider does not delete the material or prevent access to it by users as soon as possible after the Internet service provider became aware that—
(a) the material has been deleted from its original source; or
(b) access to the material at its original source has been prevented; or
(c) a court has ordered that the material be deleted from its original source or that access to the material at its original source be prevented.(3) Nothing in this section limits the right of the copyright owner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.
(4) In this section,—
“cache” means the storage of material by an Internet service provider that is—
(a) controlled through an automated process; and
(b) temporary; and
(c) for the sole purpose of enabling the Internet service provider to transmit the material more efficiently to other users of the service on their request“original” source means the source from which the Internet service provider copied the material that is cached.”
I don’t dispute the inaccuracy of the methods used to label people as infringers. And I don’t dispute the fact that 25% of PC users are infected with malware, some of which is hosting content without the user’s knowledge. But the fearmongering over this amendment is severely misplaced.
First off, some of the commentary has turned this into a one-strike law. That’s just wrong. 92A clearly and unequivocally states that the infringer must violate copyrights “repeatedly.”
Sanchez writes:
While this does not literally require disconnection on the basis of mere accusation, neither [sic] does the statute establish any process for those charged with infringement to seek redress. It seems likely that many ISPs, unwilling to risk legal penalties or bear the costs of investigating the validity of copyright claims, will err on the side of disconnection.
If I run an ISP and a record label passes me an infringement accusation that the customer contests, which of these two actions do you think I’m going to do:
ISPs are only required to “reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.” When I receive an infringement accusation for a particular customer, I’m going to set that user’s browser to redirect to a page that has an “I contest this” button, so they can still keep paying me. Is it reasonable for me as an ISP to require more proof than a mere accusation, especially in light of the inaccurate methodologies that these “investigation” companies use? Do you really think I want the content industry summarily cutting off all my customers with no proof? Oh, wait! The ISPs are already taking up the fight.
The law clearly does not require termination by mere accusation, and the ISPs are clearly willing to fight to prevent that. These commenters are claiming that the notion of termination by mere accusation is unreasonable, but then they’re criticizing the Act, even though it only requires ISPs to make a reasonable infringement policy. It might be entertaining to read about some controversy, but don’t believe everything you read on the internet, especially if it’s an opinion written by an American, non-lawyer, non-engineer journalist on the meaning of a New Zealand ISP law.
And if you’re really concerned about “accusation = termination” coming to the US, think about it this way. The entire entertainment industry (movies, television, music) is only $40 billion in revenues per year. The telecoms are a $400 billion industry. The labels lost [miserably] in 1998 with OCILLA. I have little doubt that the ISPs lobbyists will continue to make it so you continue to pay them obscene markups on service that costs them virtually nothing. With US ISPs agreeing to work with labels voluntarily, they’re only opening themselves up to antitrust liability if they step too far.
3 Responses for "New Zealand’s Section 92 Copyright Disconnection Policy"
“These commenters are claiming that the notion of termination by mere accusation is unreasonable, but then they’re criticizing the Act, even though it only requires ISPs to make a reasonable infringement policy.”
I’m glad you pointed that out. It’s a serious gap in logic to scream, “OMG, THIS IS SO UNREASONABLE THAT IT’S ABSURD!!!” and then get in a tizzy claiming that the legislation requires it.
Max,
Although you make some very good legal points, I feel you may be thinking too rationally. I you want to game the merit of any law you need to do thought experiments to see how one may abuse the law in both directions. Expecting ISP’s, The Consumer, and Corporations to all act logically and rationally is probably a bit pedantic, there will be abuses on both sides. To think that there will not be abuses and transgressions on both sides of this issue is very naive.
One the one side there is the recent, and very coincidentally, decisions from corporations to go after ISP’s instead of individuals. To think that the Corporations haven’t already flown their legal heavy weights to NZ to test this new law out would also be a very obtuse train of thought. The lawyers are in place, they have gamed their argument in mock trials, and now all they have left to do is wait till zero hour and make an example of one of the ISP’s. NZ will be a great test case for their new subterfuge.
Yes the law is vague, but vague laws have always tilled towards those who have the best argument. And in legal circles your legal argument is directly proportional to the money you have in your war chest. ISP’s simply can not afford to fight off large corporations. ISP’s will suffer; there will be protected legal arguments taking up precious court time that can be dedicated to more pressing legal issues, artist will never see a dime of any decision in their favor, and in the end we will all end up paying more for internet access because there will only be one or maybe two ISP’s left with strict draconian rules of internet providing. There is no Win-Win in the language you have posted. For starters were is the legal framework for those that have been unduly ostracized to be able to take legal recourse?
As an ISP owner I wouldn’t think twice with taking my chances with antitrust litigation from a consumer rather then defend my business model against the corporations. As a consumer you just don’t have as much money as they do. So strictly form a business decision with share holders, my chances of winning are higher by disconnection the consumer rather then providing an “innocent till proven guilty” safe harbor. The law is vague enough that I might be able to convince a judge and/or jury that I acted in good faith. So the argument that this law allows Napoleonic legal construct of presumption of guilt to creep in is absolutely correct.
It’s annoying that some commentary has claimed it’s a one strike law. I’ve been involved in the debate on this for a while now and I’ve been correcting and educating people as much as I can.
It’s Matthew Holloway here from the Creative Freedom Foundation,
I’ve written a general response to the idea of dissecting the law line-by-line here: http://creativefreedom.org.nz/forum/topic.php?id=6
But just to summarise, 92C is quite clear about takedowns being done before any trial. 92A is more subtle.
As ISPs transmit data across their own network (for their users) they’re open to copyright infringement claims themselves unless they comply with section 92. ISPs are therefore put into the role of policing copyright infringement accusations without judicial oversight against their customers, all while risking their business if they get it wrong. It’s in this impossible situation and this poorly thought out law that bypasses the courts that ISPs are saying they will be forced to disconnect customers. When you bypass the courts and due process in favour of a free market of risk-averse ISPs the nature of section 92 becomes more clear.
Most of these arguments in support of Section 92 however are based around the idea that an ISP can be an effective judge of copyright infringement; an effective replacement for due process, or that only guilty people will be accused.
In New Zealand there are a few obvious examples,
1) Take the case of Brenda Wallace getting an email about content on her site. It was not a black and white case of copyright infringement…
http://coffee.geek.nz/thedayiwasaccusedofcopyrightinfringement
In this case the accuser did not go to court but was willing to send many emails to both Brenda and her ISP about this website material. How is an ISP supposed to judge the true owner?
It’s worth saying that the accuser was entirely wrong but they apparently thought that the photo was theirs.
2) This law is supposed to last long-term (at least 5 years) but will ISPs be able to identify malicious or mistaken infringement notices considering this research?: http://dmca.cs.washington.edu/
3) The law has no formal appeal process, unlike the DMCA, and no damages for any harm caused by false or malicious accusations.
4) There are a few examples that seem to resonate with people:
a) You mentioned, Max, the 25% of computers that are infected with malware that distributes content without the owners express consent. As well as what’s happening already (botnets treating compromised computers as distributed storage) I see that this will become more of a problem over the years to come and this law doesn’t deal with this. That’s the kind of reason why we mention this.
b) Should employers with disgrunted employees be cut off? What if they run a business that depends on the internet?
c) Should the owners of hacked WiFi connections be cut off? What if it’s done accidentally or maliciously by a neighbour — should there be a formal appeal process?
5) … and this is perhaps the most important point to me personally as an artist. While our opposition to s92 is about maintaining due process there is the wider issue of what qualifies as copyright infringement. Again, this is not a black and white issue that ISPs can necessarily judge. As an artist I’ve seen many works (mostly music and visual arts) that are based on sampling — sometimes they’re sampling text (that’s legal without permission) and sometimes they’re sampling audio (that’s not legal without permission). Sometimes copyright infringement can be as simple as recording your baby dancing to Prince. The problem with bypassing the courts is that it bypasses valid reasons for using material — and this affects artists. In New Zealand we don’t have Fair Use, we have “Fair Dealing”. A black and white view of copyright harms the grey area of Fair Dealing which artists use and cherish, I assure you (and that’s what the Creative Freedom Foundation are all about).
The concern is whether an ISP can effectly judge infringement as well as court can. In any grey areas an ISP should not attempt to judge and they should instead turn to the courts. By punishing before any trial it puts the onus on the customer to prove their innocence (hence the term, Guilt Upon Accusation).
Thanks for your comments Max. This response was a bit cut-n-pastey (there’s a lot of websites to respond to so unfortunately I’ve been doing this for the last few days) but I hope that I’ve responded to your points.
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