Section 92A Changes
Section 92A of the New Zealand Copyright Act has been in the media quite a lot recently, the work of the Creative Freedom Foundation has been excellent in promoting the concerns of a wide range of New Zealanders over the serious risks to personal freedoms and citizenship reflected in this badly written and sycophantic legislation. Some day I very much hope that some sunshine will fall on why the previous Minister Judith Tizard saw fit to ignore the recommendation of the Commerce Select Committee and reinsert an obviously broken and excessive piece of law. The idea that a Minister of the Crown thinks that "deliberately vague" law is in the interests of New Zealand speaks volumes in itself. Three areas, however, don't seem to have been addressed at much depth. These include the risk to modern citizenship reflected in this law, and the real risk to schools, universities, and other educational institutions.
Firstly, to address the 'trust us, we'll be reasonable' crowd. If that is the best answer that can be given to any bad law then you've already lost the debate - give up and start the process again (and this time make sure that the people involved in the relevant ministries are better briefed or employed long enough that they know why the law was drafted in the way it was - MED staff not knowing why sections are present was a very poor look during the InternetNZ workshops). The 'trust us' excuse is no more believable when it comes from record labels promising to ignore then illegal format shifting as it is coming from those who say unreasonable actions will not be taken against ISPs.
What is often unacknowledged is that international experience with laws like the DMCA shows that copyright industries do not take a carefully thorough approach to their investigations. They clearly do them on the cheap, using unlicensed investigators, and automatic scripts that are written without experience and expertise in the nuances that affect the operation of the real internet - not the fantasy that the average politician or consumer has of it. A recent blog post "You are not a lawyer" made it clear to techies that their compacency over technical obfustication can't protect them from investigation and the consequences of their actions, however the scary element to that post was the clinicial detachment from the very real possibility that police powers abused in the service of commerce can destroy lives in real and material ways - even if you are innocent.
The Law commonly recognises the need to balance the weight and consequence of judicial and police powers, and their effects on citizens, with the risks and consequences of offences. Police cannot randomly surveil citizens without warrants, people in New Zealand have a 'reasonable expectation of privacy' in their domestic and work lives, and most fundamentally, the Code Napoleon is rejected - proof is needed before penalties can be assigned and the starting point is one of innocence.
In the case of Section 92A policians like Judith Tizard have accepted the position of the copyright industry uncritically. She has framed her position on the basis that the economic consequences of not having this law so outweigh any other consequences of its application that the requirement of proof and proper judicial process can be abandoned wholesale. This despite the fact that access to the internet is becoming a fundamental element of modern citizenship. If you study, run a business, communicate with family, pay bills, manage bank accounts, interact with local and national government, in fact, do most of the things that characterise a full life, you need to have access to the internet.
(As an aside, it has been suggested that people who lose their access could simply go to the Library or an Internet Cafe. Apart from illustrating the contempt for ordinary New Zealanders implicit in this law, it also is completely impractical given the very real security and privacy concerns surrounding those systems for the uses I list above).
As well, there is the legal principle 'De minimis non curat lex' that 'The law does not concern itself with trifles'. You can't have things both ways. Copyright infringement is either an act of minor consequence to individuals affected by the application of this law that it becomes a civil matter rather than one that need concern the Parliament and require new law, or it is so weighty and important that a proper process of evidence gathering and judicial procedure must be followed. Surely if the numbers being tossed about by the copyright industry were true (supposedly NZ$33.1 million in lost consumer spending in 2005), they could afford to pay for a proper investigation?
The last aspect I wanted to address is one that will affect New Zealanders engaged in education, and the institutions such as schools and universities which are now seen as ISPs as a consequence of this new law. Consequently, every school, polytechnic and university in New Zealand is now liable for the actions of every student unless they put in place a suitable process and policy for transfering liability to their students.
Concern about their relationship with their customers has already led TelstraClear to reject the current process out of hand. I hope the education sector will do similarly as we have an even greater responsibility to protect and educate our students, something that is inconsistent with a copyright 'police state' approach. Sadly, the economic fairytale being told by the copyright industry has been so persuasive that I expect the new Minister will also fall for the charms of the very smooth, and undoubtedly expensive, copyright lawyer that Sony Music rolled out from Sydney for the Select Committe hearings, and her local colleagues. One spark of positive news is that the NZVCC clearly recognise the problems posed by Section 92 in their submission regarding the TCF Code:
"The main problem is in Section 92A of the Copyright Act which we believe should be removed from the Act or, if it is to remain in some form, then substantially redrafted with input from stakeholders as would have happened during a select committee process."
Assuming that the Minister ignores these well argued criticisms and the rights of ordinary New Zealanders and if we as educational institutions must have a policy, what might it look like? I suggest the following as a starting point for discussion, based on a draft circulated to KiwiFoo participants by Richard Hulse:
This policy is written to comply with section 92A of the Copyright Act
When a third party (our upstream ISP, or a rights-holder) sends a copyright infringement notice to this instution the following will take place:
i. The notice will be logged in a central register.
ii. An acknowledge of receipt of the notice will be sent, and an automatic counter-notice sent stating that:
a. Investigation of the notice will be on a 100% cost recovery basis.
b. Should the complainant wish to continue, they are to acknowledge acceptance of these terms and the process outlined below. Failure to acknowledge within five working days will result in the termination of the complaint and no further action will be taken.
iii. Staff of our ITS will investigate the complaint as required.
iv. The outcome of the invetsigation will be reviewed by a committee including representatives of the academic staff and student groups.
v. The committee will make a final determination of what action will be taken, subject to current institutional staff and student conduct policies and statutes.
vi. A response will be sent to the complainant stating that we have taken action.
Notes
1. Cost recovery.
Parties submitting notices should be made aware that all costs associated with investigating the notice will be charged on a 100% recovery basis, including but not limited to network consultants, IT forensic specialists and staff cover.
2. Information requirements.
Complaints must be filed through the institutional system provided for this purpose and all information must be supplied for the investigation to proceed. Please note that institutional systems are shared and pass through multiple firewalls and thus an IP address is insufficient information by itself to identify a specified user. MAC address and detailed timestamp information (referenced against a designated NTP server) must be provided.
3. Time-frame
Complaints will be dealt with within 5 working days. Where multiple complaints are sent by one upstream (e.g more than 10 at one time), these will be processed on a first-come-first-served basis, with each taking no more than 3 working days.
4. Inability to find user
If the alleged infringer cannot be found (due to lack of authentication, open network, incomplete information supplied in the complaint, etc), a counter-notice stating this will immediately be sent stating this and that the matter is now considered closed.
5. False complaints.
Where a complainant has made three unsubstantiated claims (due to inaccurate or incorrect information), the rights-holder or upstream ISP will be subject to a 3 month stand-down when no notices will be accepted.
6. Privacy.
Under no circumstances will personal information of staff, students or other users be passed upstream. Information will only be provided with a valid court order.
No information about network configuration or technical infrastructure will be provided.