{ Monthly Archives }
May 2011
92A … Next Steps: created 03:31 3.4.2009 released 00:00 28.4.2011
– courtesy wikileaks (note: GNZ = Government of New Zealand) #09WELLINGTON88
URGENT: Submission to Ministry for Economic Development
The New Zealand Ministry for Economic Development has released a Discussion Document, Copyright (Infringing File Sharing) Regulations 2011, as follow-up to the Copyright Infringing File Sharing Amendment Bill, to which I ask you to give your urgent attention, not least because submissions on the Document may be received by May 27 2011, tomorrow. Here is the Discussion Document: http://www.med.govt.nz/upload/Copyright_regulations_discussion_doc.pdf
A brief description and statement opposing the Discussion Document follows. Please forward it to ip.policy@med.govt.nz with the subject line:
Submission on the Copyright (Infringing File Sharing),Regulations 2011 Discussion Document
We are utterly opposed to the Discussion Document in its current or any form that may be derived from it in discussion.
Far from protecting intellectual and artistic property, far from protecting from infringement the rights of holders of copyright, the Discussion Document requires the infringement of the right to privacy of legitimate users of the internet.
The Discussion Document proposes that holders of copyright pay ISP’s to issue notices where they suspect internet users have shared files under copyright.
It requires that three notices are sent, of detection of suspected infringement, warning and enforcement, the latter entailing punitive actions against the internet user.
There is in the Document no provision for appeal by the internet user, since at this stage legal sanction only extends to the ISP.
The Discussion Document further requires that the alleged offender – who is found such before any legal process of determination – is identified to the Ministry of Justice by his or her ISP.
The Discussion Document suggests the imposition of a fine of not more than NZ$15 000, which may be used to recompense the holder of copyright and the ISP.
It is the responsibility of the Ministry of Justice to impose punishment not to hear the case of the internet user. The principle asserted is guilt before innocence.
We suggest that the Discussion Document is already a political, moral and legal embarrassment.
We urge that it is torn up and public apology is made by the parties responsible for drafting it.
We further insist on the repeal of the Copyright Infringing File Sharing Amendment Bill.
Putting guilt before innocence and so much less: Infringing File Sharing – the draft bill on copyright … up to $15 000; are ISP’s that hard up?
Submissions due on this draft by this Friday, May 27. Submit that the idiots responsible for drafting it ought to be repealed before it is introduced.
…here it is !!!
The essence of this document is not the assumption of responsibility on the behalf of holders of copyright, creators of content, artists, their agents, and so on, or for any moral or legal principle, but the evasion of responsibility and its deferral onto purely economic terms. Hence, a fascism borne of expediency.
We read:
A three notice process, administered by internet service providers
(referred to in the Bill as internet protocol address providers (IPAPs))
Punitive measures are to be imposed on so-called “internet account holders” by and at the discretion of the Ministry of Justice.
The onus seems to rest at present entirely on the “rights owner” to provide all relevant details of infringement of copyright by file sharing, plus the full voluntary complicity of the ISP (or IPAP) in identifying the alleged infringer by address.
Under the Bill, an IPAP will be required to send up to three notices to an internet
account holder. These will be a detection notice, a warning notice, and an
enforcement notice.
How required?
Regulations should also ensure that internet account holders are given enough
information in a notice that they are able to understand the regime and their
obligations under it, and that they are sufficiently informed about copyright and
the implications of file sharing that infringes copyright.
This reads very strangely. Is file sharing a clearly chosen action? or, given that internet use can mean nothing other than sharing files, is it largely passive? a matter of partaking of – and sharing, via links – what is simply ‘out there’? A partaking, rather than a taking then…?
The bill makes itself appear more attractive by being self-funding, and a revenue-generating exercise:
Section 122R of the Bill provides that an IPAP may charge a fee to the rights
owner for performing the functions required of it under the Bill.
On fees to rights holders:
The range of notice fee estimates would between $2 and
$28 per notice for the on-going costs of the regime.
Not so effective a revenue generating exercise then? (Regime!)
a higher fee for the later notices also reflects the
additional matching, information logging, and identification an IPAP must perform
for these notices. For the rights owner, persons receiving enforcement notices
are likely to be more serious, repeat infringers, and are more likely to eventually
be taken to the Tribunal. A rights owner may be more willing to pay a higher
notice fee through the later stages of the regime, due to the fact that they can be
more certain they will be able to recoup the fee from the infringer via the
Tribunal. However, on the other hand, the additional expense of further notices
may deter rights owners from using the latter stages of the system.
A large part of this document is about creating commercial incentives for ISP’s to dob in infringers, having got their mits on the $$$ of the interested party, the rights holder.
the Copyright Tribunal may award under section
122N. Section 122N(4) states that an award must not exceed $15,000.
Of course, there are provisions for ISP’s and rights holders to make claims to recuperate costs of pursuing these matters as far as the Tribunal.
See:
The fact that the Tribunal can require an internet account holder to
reimburse the rights owner for the fees they have had to pay an ISP to
send notices under the regime, and the fee to take a claim to the Tribunal,
would be taken into account. In certain cases, this amount plus the
amount of compensation for the market value of the infringed works could
constitute a sufficient deterrent in the eyes of the Tribunal, and therefore a
further deterrent amount may not be required.
Something of a reversion in terms here to ISP rather than the preferred IPAP. IPAP is indeed preferred because it denotes narking on the account holder, providing evidence of infringement, naming names and, for money, giving out the address of the infringer. What is wrong with this? Isn’t there an agreement between internet account holder and ISP to the effect that such things as names and addresses ought not be given out, even for money?
In sum, if anything like this gets into law, we are looking at the ordinary workings of stupidity, fascism’s proxy. The real infringement of rights here is that of the so-called internet account holder to privacy.
