It's the law
by Juha Saarinen, Newsline Editor
 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:
- 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.
- It's not physically possible for you to have infringed with that shared file because:
- Your monthly data cap is smaller than file;
- Your Internet connection is too slow to download the file in the time claimed.
- 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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