Sunday, 17 April 2011

NZ’s Copyright (Infringing File Sharing) Amendment: What it Means

By Matt Perryman - The Copyleftist Blog 

As you’ve probably heard, the Copyright Amendment has passed its final reading in Parliament, rightly receiving much criticism for being shoved through the ‘urgency’ session intended to provide relief to victims of the Christchurch earthquake. 

If there were some textbook that dealt with anti-democratic elitism on the part of an allegedly representative body, and corporate cronyism to satisfy overseas interests, you would find the fiasco that is this bill under headings for both. 
Our new law came to New Zealand at the behest of media companies in the United States in a blatant case of policy laundering. The US uses its vast economic influence to export the laws it wants to its trading partners. Fearful of losing that status, most countries readily give in — whether the people of the host country benefit or not. 
So here we are, government readily acquiescing to the demands of international interests with a law that presents serious challenges to privacy, freedom of speech, and due process. All issues of policy exportation aside, only a minority — certainly none of our local lawmakers — have taken this law to task and asked the simple question: will it really do what it says? 
There are two separate questions that must be answered. Will this particular law actually help artists, writers, and musicians in New Zealand? Do these rights holders even need the protection of law in the first place? 
There is very little evidence to suggest that stronger intellectual property measures create incentives for creators to create. Extended copyright protections, which are now at life of the creator plus 70 years, do not benefit authors — they benefit Disney, who would lose control over their properties. This debate is not about making money. It’s about the right to keep creative works under lock and key, works that should pass into the public domain, so that rights holding corporations can maintain potential income streams. 
This is about control, not compensation to rights-holders. Our new law is meant to promote rent-seeking on behalf of corporate interests. 
Meanwhile, the public domain, that garden of intellectual works which we all draw upon to create new content, is steadily diminished. Instead of a rich culture, we’re left with infertile dust that excludes most any work produced in the last 50-100 years (depending on where you live). 
Ironic that copyright law originally came about as an incentive to creators to enrich the public domain. The original Statute of Anne, from the 16th century, was created as an incentive to authors to create books by protecting them from the monopolies of book printers and allowing works to add to the cultural gestalt. As written in the constitution of the United States, copyright exists to “promote the progress” of arts and science. 
There is nothing there about guaranteeing profits to corporate dynasties. 
Let’s look at the data. We’re told that “piracy” has massacred the music and movie industries. I find that to be most interesting given that the movie industry can’t stop patting itself on the back for another year of record box office takings in 2010 — the fifth year in a row, including three recession years. 
If that’s a massacre, I’d like a little of that slaughter. 
The music industry? Apple’s iTunes recently celebrated its one billionth (that’s billion with a b) sale. Music is flourishing. You can hardly set foot on the internet without encountering a new band — or a new success, made possible by the very tools of distribution and creation that the old guard wants to destroy. 
Facts don’t stop the cognitive dissonance, though. The MPAA lauds record income on one hand while the other can’t stop talking about how much money they’re losing. This may fool our politicians. This kind of buffoonery should not fool us, and it absolutely does not meet the burden of proof required to criminalize all internet users. 
Even if we assume that strong IP protections are necessary to protect creators, and even if we assume that “something must be done” — despite all the evidence suggesting nothing is wrong — what will this bill do?
Firstly, I want to point out that the complaints about this bill have exactly nothing to do with a content-creator’s right to get paid. The opposition to this travesty is focused on the fact that this is a poorly-written law, a law imported by overseas corporate interests, and a law with the potential for large-scale abuse. 
Simplistic rebuttals suggesting that the bill’s opponents support “theft” [sic] or don’t want creators to get paid are as ridiculous as they are intellectually bankrupt. I’m a creator myself, and I want creators to get paid. This law has no bearing on that — this law will not help you, writer, artist, or musician, make more money. 
Compensation to creators is entirely separate to criticisms of this unfortunate law, and hinging on the belief that you need strong IP protections in order to make money. You’re being sold a line of fear and given a choice between believing it or going broke — but we can save you if only you sign away a few civil rights. 
Quickly, I want to summarize what this law means to you:
1. Your ISP will not be actively monitoring your internet traffic. Under this law, rights-holders can contact your ISP with an infringement notice, which the ISP will then pass on to you. It’s up to the rights-holder to find evidence that you’re infringing on a copyrighted work.
2. If you receive three of these notices within a specified period of time, you’ll appear before the Copyright Tribunal. The way the bill is written, you’re assumed to be guilty and must produce evidence of your innocence — a stark reversal of the assumed innocence in every other court proceeding.
Your right to due process is an unfortunate casualty of the fast track process.
2a. It’s extraordinarily difficult for you to prove you didn’t infringe a file. I’m a competent user — writing this post on a Linux distribution and more than capable of handling networking technologies — and I couldn’t produce negative evidence of that caliber. 
This leads us to an interesting scenario. If “I didn’t do it” is a sufficient defense, then there’s no point to the Tribunal at all; anyone can demolish a claim by simply denying the infringement. 
But if your denial isn’t a defense, then virtually every Tribunal hearing will result in a guilty outcome. 
You either give everyone an out, thus making the Tribunal irrelevant, or you make everyone guilty and turn this into a sham. 
There is no middle ground, thanks to the limits of networking technology. 
Our new law is guilt on accusation with the rubber-stamp of court approval. A court hearing without the ability to defend yourself is equivalent to no hearing at all. 
3. Yes, this will be abused. The only barrier to filing an infringement notice is a fee. If you don’t like what your business competitor is doing, claim infringement. If you don’t like a blog post that offends you, claim infringement.
And this is only the human element. The technological factors are arguably worse — if your IP address turns up online, not only without your knowing but without your action, you’re liable. Have a look here to see how reliable these detection methods are, and ask yourself if you want to be on the hook for $15,000, or six months without internet, based on evidence that can incriminate a printer for illegal file sharing. 
Oh, and you’d better hope nobody cracks your wifi router. You’re liable for that too, despite WEP being worse than useless and even WPA2 having vulnerabilities. The bill places liability on the account holder for any actions taken on that account, forcing you to shoulder the burden of securing your router.
Given that both WEP and WPA2 can be cracked with little to modest effort, the Parliament has effectively told us to get rid of our wireless routers. There can be no guaranteed security short of turning them off. 
Bye-bye wifi. 
Our new law is a poorly-worded and blatantly ignorant attempt at conforming local policy to the desires of overseas interests, written by people with little understanding of the issues involved, disregarding the input of those who are informed, and then ramming it down our throats with lies and a dose of condescension. 
Once this law comes into effect, your best bet to avoid becoming a criminal is to invest in a Virtual Private Network (VPN) hosted outside New Zealand. For $5-$20 per month, you can encrypt your internet traffic in a secure SSH tunnel and not worry about having your IP address turn up in unsavory places. 
Of course, that won’t protect you from malicious activity, whether copyright trolls or wardriving wifi hackers. For that, your only defense is to cross your fingers and hope.
Which should work about as well as hoping Parliament stops caving in to US pressure to the detriment of Kiwis. 

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