From the Actrix Online Informer June 2011

Section 92 and you

by Rob Zorn

You're probably aware of Parliament's recent changes to Section 92A of the Copyright Act designed to curb illegal downloading from the Internet. Until these changes were made there were little or no repercussions for downloading copyrighted material. The only way you could get into any trouble was if the owner of the copyright specifically sought action against you, and it was hardly likely that James Cameron would single you out of the millions of people who illegally downloaded Avatar.

However, now that Parliament has made changes and Section 92A of the Copyright Act has been successfully repealed, internet pirates can face a fine of $15,000 after the changes come into effect in September. A further penalty, which would see users have their internet accounts terminated, has been postponed.

What changes have been made and what do they actually mean?

The new Bill puts in place a system of warning notices to be issued by internet service providers (ISPs) to deter users from copyright infringement (downloading stuff like music and movies illegally). The Bill has been labelled a "three-strikes policy" because it gives offenders three chances or warnings before action will be taken against them. After the third warning, the owner of the copyrighted material that was illegally downloaded may apply to a Tribunal for the offender to have to pay up to $15,000.

It's important to note that the application of this law rests solely at the discretion of ISPs. Without them sending out infringement notices to copyright offenders, the copyright owners can't take action against offenders. The Bill puts ISPs in quite some position of responsibility.

Internet piracy is rampant in New Zealand, with a recent survey showing that 87 percent of those who download movies from the internet don't pay for them. However, whether we'll see significant changes to the way we download is yet to be seen. While some tout the Bill as a success for copyright holders and intellectual property, others dismiss it as un-democratic, a hindrance to creativity and a complete waste of time.

Yay or nay?

There is obviously some support for the Bill. For a start, every politician voted in favour of the changes except the Green Party and independent MPs Chris Carter and Hone Harawira. Minister of Commerce Simon Power says he is looking forward to the Bill's changes coming into effect in September.

According to Power, "Online copyright infringement has been damaging for the creative industry, which has experienced significant declines in revenue as file sharing has become more prevalent. This legislation will discourage illegal file sharing and provide more effective measures to help our creative industries enforce their copyright."

Further, record companies and movie studios the world over must also see this as a battle won against copyright infringers. These companies and studios actually have teams that scour the internet looking for any instances of their property being pirated. Cases in the past have been brought against offenders, though only in the United States and not in New Zealand (yet).

And then, of course, there is opposition to the Bill. A Facebook group called Opposing the Copyright (Infringing File Sharing) Amendment Bill gathered over 13,500 fans as they discussed the law and planned protests. They encouraged Facebook users supporting them to replace their profile picture with a black square to indicate their opposition to the Bill.

Google's executive chairman, Eric Schmidt, recently spoke out against government forced regulation of internet use, comparing it to China's restrictive internet regime and declaring it a "disastrous precedent" for freedom of speech.

Protestors have labelled it undemocratic and also a hindrance to creativity, claiming that without access to present creative works, future creativity is significantly disadvantaged.

Others say that this heavy-handed approach is short-sighted and backward-looking. People will always download music and videos from the internet, they say, and the horse has already bolted. Laws like this will just encourage them to get better at finding ways to do it anonymously, making the problem even worse for copyright holders. The industry would be smartest to try and compete with this – i.e. provide a better download service that is cheap and attractive so people won't be tempted to break the law. Surely, that is the way of the future.

So what’s the verdict?

It is important to note that the majority of those participating in this argument are not arguing whether or not internet piracy should be legal; the argument is based on whether threatening to deny offenders internet access is the best way to combat piracy. When the law changes eventually take effect, a number of issues will arise for ISPs.

Currently the majority of illegal downloading is done using BitTorrent sites. It used to be through software programs such as Napster and Limewire, but these have recently fallen by the wayside because BitTorrent is generally much faster. While it is true that the majority of BitTorrent traffic is for illegal downloading, there is a significant amount of open source software and freeware to be downloaded from these sites that are free to the public. There are even feature length movies that have had their copyright restrictions relinquished so that the public can access them freely.

A minor issue of privacy arises here, too. ISPs do not act like Big Brother, or concern themselves with what you are viewing or downloading (it's not their job to be the police!) but they will be informed when the copyright holder informs them. They'll have to be told exactly what you were downloading before they can send you a warning.

A much more serious issue of concern with this system is that end users are presumed guilty rather than innocent and that there's no burden on copyright holders to prove you were downloading something illegal. ISPs just have to take the copyright holder's word for it and if the end user disagrees, the burden is on them to prove their innocence. This is likely to become quite contentious and upset a lot of people.

Another problem that will make this law hard to police is that it's quite common for a number of computers all to be sharing the same IP address. An IP address is a unique string of numbers that identifies each computer attached to the Internet. If multiple users (e.g. on a network) are sharing a single IP address and one of them downloads copyrighted material, the ISPs will have the impossible job of determining which user it was that broke the law before they can action any penalty. And what if it's your flatmates using a shared computer, or your children downloading without your knowledge?

In these cases it is the account holder who will be held responsible, and we can see this potentially upsetting a lot of account holders.

No doubt everyone will have their own opinions of the law changes. Actrix will comply with the law once in effect but at this moment the details of how it will be implemented have not been fully finalised. However, we will make an announcement on Actrix policy in regards to copyright infringement and the application of this new law before any enforcement begins.


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