There are always some insightful blogs to be found when considering Law in NZ from David Farrar on his blog, found at kiwiblog.co.nz. On this particular issue, his posts on the Use of Urgency by the National Government are particularly relevant to the cause we are campaigning for.
"Use of Urgency" by David Farrar - http://www.kiwiblog.co.nz/2011/04/use_of_urgency.html
Monday, 18 April 2011
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.
This post can originally be found - http://copyleftist.org/post/4590847023/nzs-copyright-infringing-file-sharing-amendment
Friday, 15 April 2011
NZ COPYRIGHT LAW VIOLATES HUMAN RIGHTS - Leon Tan
Sent to us [ Sat, Apr 16, 2011 at 9:25 PM ] from Leon Tan (http://twitter.com/#!/khaoid)
In passing a controversial Copyright (Infringing File Sharing) Amendment Bill,[1] the New Zealand Government has followed the lead of the Swedish Government in certifying the claims of a media oligopoly against the claims of a far greater number of its own citizens. What is more, the new law comes with a presumption of guilt, meaning that anyone accused of copyright infringement is by default presumed guilty. On the other hand, owners of copyright need do nothing more than simply accuse alleged offenders, leaving the burden (and high legal costs) of proof of innocence to hundreds of thousands of individual Internet users in New Zealand.
Besides the obvious problem with the presumption of guilt, this move is extremely concerning for another reason. It involves the NZ government in violations of international treaties and rights frameworks such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). These frameworks guarantee to NZ citizens [1] the right to express opinions through any media across geopolitical borders, [2] the right to privacy (meaning that private Internet surfing activities should not be monitored by ISPs or the government), and finally [3] the right to participation in cultural life.
Conveniently ignored until very recently in the contentious politics of intellectual property (IP), the conflict between IP legislation on one hand, and human rights legislation on the other, deserves greater scrutiny. For legal institutions have in the main apparently forgotten the existence of such rights and frameworks under continuous lobbying pressure from ruthless corporate oligopolies. A related case involves the Swedish government prosecuting organizers behind The Pirate Bay, under direct pressure from the US government and a predominantly American media oligopoly. At no time did the Swedish court pause to reflect on its own violations of international frameworks such as the UDHR and ICESCR, not to mention the European Convention on Human Rights.
As a matter of fact, according to the Advocate General of the Court of Justice of the European Union, ‘ordering an Internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental rights.’[2] What is more, ‘The Committee on Economic, Social and Cultural Rights has previously recommended that every state conduct a general human rights impact assessment of their IP regimes.’ (Shaver and Sganga, 2009: 19) While the NZ government bends over backwards to service American and corporate interests, it has yet to deliver such an impact assessment in relation to existing IP legislation.
Article 15 of the ICESCR (to which NZ is party, having only reserved the right not to apply Article 8) is in fact rather clear concerning the rights to participation in cultural life. “To take part in cultural life implies the ability to access, enjoy, engage with and extend the cultural inheritance; to enact, wear, perform, produce, apply, interpret, read, modify, extend and remix; to manifest, interact, share, repeat, reinterpret, translate, critique, combine and transform.” (Shaver and Sganga, 2009: 9) It is not hard to see how file sharing fits within this general definition of cultural life.
If you are concerned about the NZ Government’s violations of human and cultural rights with its recent copyright amendment legislation, or with the thoroughly underhanded manner in which the government abuses urgent sittings of parliament, you might consider taking action of some kind. For instance, you can lodge a formal complaint against the government with the Human Rights Commission [ http://www.hrc.co.nz/enquiries-and-complaints-guide/ ], and/or write to MPs demanding that a formal human rights impact assessment is conducted without delay, in relation to NZ’s current IP regime, and/or support the move for a referendum.
New Zealanders who wish to continue exercising their rights to participate in cultural life by file-sharing may consider innovations from Sweden such as the IPREDATOR, [ https://www.ipredator.se/ ] a service which anonymizes web surfing by switching the IP number users receive from the ISP to an anonymous IP number, and enables an encrypted connection between computer and Internet using VPN.
Leon Tan, PhDArt historian and media theorist
Resident in Sweden and New Zealand
__________________________________________________________________
References
Leon Tan, ‘The Pirate Bay: Countervailing power and the problem of state organized crime,’ CTheory: Theory, Technology and Culture, 2010, 33(3).
Lea Shaver and Caterina Sganga, ‘The right to take part in cultural life: On copyright and human rights,’ Wisconsin International Law Journal, 2009, 27.
[1] http://www.parliament.nz/en-NZ/PB/Legislation/Bills/f/8/e/00DBHOH_BILL9773_1-Copyright-Infringing-File-Sharing-Amendment-Bill.htm
[2] http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-04/cp110037en.pdf
In passing a controversial Copyright (Infringing File Sharing) Amendment Bill,[1] the New Zealand Government has followed the lead of the Swedish Government in certifying the claims of a media oligopoly against the claims of a far greater number of its own citizens. What is more, the new law comes with a presumption of guilt, meaning that anyone accused of copyright infringement is by default presumed guilty. On the other hand, owners of copyright need do nothing more than simply accuse alleged offenders, leaving the burden (and high legal costs) of proof of innocence to hundreds of thousands of individual Internet users in New Zealand.
Besides the obvious problem with the presumption of guilt, this move is extremely concerning for another reason. It involves the NZ government in violations of international treaties and rights frameworks such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). These frameworks guarantee to NZ citizens [1] the right to express opinions through any media across geopolitical borders, [2] the right to privacy (meaning that private Internet surfing activities should not be monitored by ISPs or the government), and finally [3] the right to participation in cultural life.
Conveniently ignored until very recently in the contentious politics of intellectual property (IP), the conflict between IP legislation on one hand, and human rights legislation on the other, deserves greater scrutiny. For legal institutions have in the main apparently forgotten the existence of such rights and frameworks under continuous lobbying pressure from ruthless corporate oligopolies. A related case involves the Swedish government prosecuting organizers behind The Pirate Bay, under direct pressure from the US government and a predominantly American media oligopoly. At no time did the Swedish court pause to reflect on its own violations of international frameworks such as the UDHR and ICESCR, not to mention the European Convention on Human Rights.
As a matter of fact, according to the Advocate General of the Court of Justice of the European Union, ‘ordering an Internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental rights.’[2] What is more, ‘The Committee on Economic, Social and Cultural Rights has previously recommended that every state conduct a general human rights impact assessment of their IP regimes.’ (Shaver and Sganga, 2009: 19) While the NZ government bends over backwards to service American and corporate interests, it has yet to deliver such an impact assessment in relation to existing IP legislation.
Article 15 of the ICESCR (to which NZ is party, having only reserved the right not to apply Article 8) is in fact rather clear concerning the rights to participation in cultural life. “To take part in cultural life implies the ability to access, enjoy, engage with and extend the cultural inheritance; to enact, wear, perform, produce, apply, interpret, read, modify, extend and remix; to manifest, interact, share, repeat, reinterpret, translate, critique, combine and transform.” (Shaver and Sganga, 2009: 9) It is not hard to see how file sharing fits within this general definition of cultural life.
If you are concerned about the NZ Government’s violations of human and cultural rights with its recent copyright amendment legislation, or with the thoroughly underhanded manner in which the government abuses urgent sittings of parliament, you might consider taking action of some kind. For instance, you can lodge a formal complaint against the government with the Human Rights Commission [ http://www.hrc.co.nz/enquiries-and-complaints-guide/ ], and/or write to MPs demanding that a formal human rights impact assessment is conducted without delay, in relation to NZ’s current IP regime, and/or support the move for a referendum.
New Zealanders who wish to continue exercising their rights to participate in cultural life by file-sharing may consider innovations from Sweden such as the IPREDATOR, [ https://www.ipredator.se/ ] a service which anonymizes web surfing by switching the IP number users receive from the ISP to an anonymous IP number, and enables an encrypted connection between computer and Internet using VPN.
Leon Tan, PhDArt historian and media theorist
Resident in Sweden and New Zealand
__________________________________________________________________
References
Leon Tan, ‘The Pirate Bay: Countervailing power and the problem of state organized crime,’ CTheory: Theory, Technology and Culture, 2010, 33(3).
Lea Shaver and Caterina Sganga, ‘The right to take part in cultural life: On copyright and human rights,’ Wisconsin International Law Journal, 2009, 27.
[1] http://www.parliament.nz/en-NZ/PB/Legislation/Bills/f/8/e/00DBHOH_BILL9773_1-Copyright-Infringing-File-Sharing-Amendment-Bill.htm
[2] http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-04/cp110037en.pdf
#blackout trending again after extended break.... just in time to get rush through under urgency...
Getting up to speed quickly, I'm not sure that stuff.co.nz was one of the first news channels to pick up on the story yesterday... but I have to say, you gotta love the URL for this story - http://www.stuff.co.nz/technology/digital-living/4882838/government-is-totally-fucked
But as many would know, this is not the first time NZ internet users have "blackout" in protest of internet privacy laws.. In fact, I noticed this after that the Creative Freedom page must have been getting a few hits and maybe people confused on their site as they added the following Note to the top of their page ...
NOTE: This page is from 2008. It is not applicable to the 2011 law.
And actually appear to have since re-launched the site... http://creativefreedom.org.nz/
While the topic was "trending" on Twitter since debates began last night (see some of our other posts on the topic, from James or myself here), the traditional media streams, particularly TV news, kept this one very quiet... of course by the time the traditional TV media caught up, the bill had already been passed...
We noticed some points that other people also seemed to pick up on, for example- this is from an article from NBR.co.nz on the topic after the debate -
"National MPs Melissa Lee and Katrina Shanks also made at times confused contributions. "I've got no idea," Ms Shanks stated at one point."
I decided to make up a few quick comics on a cool tool called toondoo.com which kind of tried to capture the level of debate from the members....
I made a few others, but was ill advised against continuing to draw reference to them, which I won't... however, I will just leave them on my toondoo.com account I think - freedom of speech and all!
________________________________________________________________
You can see this post originally here -
http://members.assistnz.com/members/jess-maher/blackouttrendingagainafterextendedbreakjustintimetogetrushthroughunderurgency
Sweet As Social Media Societies Members Blog; Jess Maher, AssistNZ
Can't swap "illegal files"...but Legal options to share files...? Parliament says there are none!
posted 13 Apr 2011 03:03 by Jess Maher
posted 13 Apr 2011 03:03 by Jess Maher
I found myself watching Parliament TV tonight surprisingly... The Copyright (Infringing File Sharing) Amendment Bill was seemingly attempted to be passed in a somewhat rushed & down played fashion to say the least...
Two years after the Internet Blackout protests and quick removal of controversial clause from PM John Key, we see the bill pop up in Parliament again.. But it was rushed through while the House was sitting in urgency to pass Christchurch earthquake recovery measures, much to the surprise of everyone, including Green MP Gareth Hughes apparently..
For a "layman's terms" version of the legal aspects, check out James' blog posts here... While we wait to expect this bill to be passed tomorrow morning, surely, this is not the kind of thing that should be happening within a democratic society...? This comment from "Garbage Collector #296" was found on the stuff.co.nz post comments...
The topic was on social media forums, talk back radio, newspapers and well, TV3 had the story on their website.. but there was a distinct lack of any mention in the TV News I noticed... Despite the story clearly being well before what I imagine would be the "headline" cut off time... The ability to stream Parliament TV online meant that quickly we saw the start of following and extensive debate online, especially Twitter were the trend for #blackout was dominating feeds until midnight..
Two years after the Internet Blackout protests and quick removal of controversial clause from PM John Key, we see the bill pop up in Parliament again.. But it was rushed through while the House was sitting in urgency to pass Christchurch earthquake recovery measures, much to the surprise of everyone, including Green MP Gareth Hughes apparently..For a "layman's terms" version of the legal aspects, check out James' blog posts here... While we wait to expect this bill to be passed tomorrow morning, surely, this is not the kind of thing that should be happening within a democratic society...? This comment from "Garbage Collector #296" was found on the stuff.co.nz post comments...
The topic was on social media forums, talk back radio, newspapers and well, TV3 had the story on their website.. but there was a distinct lack of any mention in the TV News I noticed... Despite the story clearly being well before what I imagine would be the "headline" cut off time... The ability to stream Parliament TV online meant that quickly we saw the start of following and extensive debate online, especially Twitter were the trend for #blackout was dominating feeds until midnight..
But much of the talk was off the protection of artists rights... yet most of these politicians seem to really have no idea what they were talking about to a large degree... and debate is still out on that "fact" anyway...
I mean just consider how many artists were amongst those posting on Twitter and other forums tonight...
@jezzieann "We call those artists the smart ones.. who recognize the world is different! #parliamenttv #blackout #musicindustrychanged"
Yet the words on behalf of Green Party MP, Gareth Hughes where well received online anyway... This can now been seen on youtube & pirate bay also...
@jezzieann "like this one “RT @kubke: I am a creator, I have copyright under creative commons -I say it is ok to share - dont put me in your bag #blackout”
Yet the words on behalf of Green Party MP, Gareth Hughes where well received online anyway... This can now been seen on youtube & pirate bay also...
Some of the Twitter posts included these:
Steffen "NZ, time to #blackout. National can't do this shit. http://www.stuff.co.nz/technology/digital-living/4882838/government-is-totally-fucked"
@yankeekiwi "@noozeeland @publicaddress it happened this afternoon during the Parliament's #eqnz urgency hearings. First we're hearing. Breaking now."
@gurubobnz "RT @Phil_Wheeler: If at first the whole country rejects your legislation, suspend normal process and pass it anyway. #blackout #eqnz"
ahmadnz "@jordantcarter @garethmp Thanks again. So inevitable either way? What was the point of urgency aside from appearing sneaky then? #blackout"
bagnum "Only saw the return of this bill in the last few days. Was it snuck in under the cover of the CERNA bill and the quake? #blackout @GarethMP"
@hclearwater "now to offer free wifi i have to set up a webfilter - which ain't easy :( #blackout #crisis #eqnz"
Other posts we found particularly useful getting some kind of handle on
this topic included; http://www.geekzone.co.nz/freitasm/7590
Can find this post originally here http://sites.google.com/a/assistnz.com/members/members/jess-maher/legaloptionstosharefilesparliamentsaystherearenone
Sweet As Social Media Societies Members Blog; James Williamson, AssistNZ
NZ Govt trying to rush through file sharing law
Well well...looks like the Christchurch earthquake is being used as an excuse to rush through all sorts of other legislation under urgency also.
Now whether this gets through or not this time, it seems fairly inevitable that "official" banning of file sharing is on the cards sooner rather than later.
Some interesting points to note as compared to similar laws overseas; this still does not criminalise file sharing, it remains a civil matter. Quite rightly too, as of course copyright infringement represents loss of anticipated profits rather than deprivation of actual physical property from the rightful owner - the actual cost of a digital file copy is basically zero, so this is not the same as stealing intangible goods like power or toll calls. The main new features that go beyond the original copyright act are that it makes it somewhat easier for rights holders to take action over infringement, there is a maximum penalty set at $15,000, and offender's internet access can be blocked for 6 months for repeated violations. So obviously the NZ government is rejecting the view taken in some jurisdictions that internet access is a basic human right. The s 122MA also seems quite a departure from standard legal practice in that it sets a basis of "guilty until proven innocent" for any enforcement action that must be rebutted by the accused, which until now has only been the case in very rare situations, involving serious crimes...file sharers are deemed to be on a par with drug dealers, child pornographers and terrorists it seems!
The main issue I can see is that of enforcement - specific details need to be provided of which copyrighted work was uploaded or downloaded to and from which IP addresses, and what date this took place on. It is unclear how rights holders are meant to be detecting the infringement, and liability of the ISP is limited so long as they send out the infringement notice in timely fashion. However the ISP is able to charge costs to rights holders for taking enforcement action estimated at between $14 and $56 per notice, so this means it will cost a lot more to the rights holder to take action, that what they would have received for selling legitimate copies of most individual music or video files. Still, especially with the limited liability of ISPs, it is hard to see how this would not be defeated by strong encryption, or even just proxy IP address services.
Also there doesn't seem to have been much consideration of shared IP addresses despite this being a main point of objection when the bill was debated in November...if this is strictly enforced against the IP address that the infringement occurred from, then we could see the internet accounts blocked of universities, high schools and libraries up and down the country! Or conversely if enforcement is strictly limited to the account holder, then there could be a great deal of legal argument about whether parents should be expected to be aware of what their kids are downloading on the home internet account at all times, or whether account holders are legally required to secure their networks so third parties cannot download infringing content through unsecured networks without the account holder's knowledge.
Overall this is a reasonable effort to address what is clearly a widespread issue, but it reads like the politicians and drafters were a bit out of their depth when it comes to how the technology actually works in practice, and what this means for trying to cover the area with legislation. If this passes, then expect lots of case law to resolve the ambiguities, and no doubt an amendment in a few more years time once they have identified all the problems with this version!
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