Zombie 92A Copyfight

The Ministry of Economic Development released a fairly comprehensive summary of the Section 92A submissions it had received. So I was a bit curious why someone wanted to pull a full OIA request on all the submissions received. The MED were kind enough to ask if there was anything I would like to withold from my submission. No worries, sez I. So much so, here it is:

Dear MED,

Thank you for publicly consulting on the proposed copyright tribunal scheme.

In general terms, the proposed tribunal is not serving any greater public function but rather an attempt by dinosaurs to outmanoevre the mammals. The scheme is unfair as it pits very large corporation might directly against citizens' rights. It is an inefficient because the proposal is not fit for purpose. It will not work. These criticisms are expanded upon in the commentary of the Phase Questions.

1. What does one define as reasonable evidence? An IP address, a time and a profile of an alleged infringer's OS and configuration is not enough. Apart from Intranet traffic from large businesses sharing one IP address, IP addresses are subject to misinterpretation by dynamic IPs, proxy servers, IP hijackers and tapping into unsecured wireless networks, to name a few examples. The probability of false positives and wrongful accusations is very high.

If a tribunal were to enforce some form of copyright scheme, it should be aimed at the very worst cases, the ones who infringe copyright for pecuniary gain; the spammers of copyright if you will. That's the type of deal that allows NZ Customs to enforce a range of copyrighted goods, instead of something more relevant to the public good such as maintaining the integrity of our imported food supply. For example, Customs maintains a licensing guide to Disney's Winnie the Pooh franchise, which pulls in around $1 billion a year in revenues worldwide for the corporation. It's not as if they can't afford their own brand enforcement.

Consequentially, accusations of copyright breach should be treated along the lines of the recent court case involving the reselling of Sione's Wedding DVDs. The intent should be to prevent the passing off of a tangible product for financial gain. The threshold for such copyright claims would need to match the burden of proof for such a prosecution.

2. 3. 4. The proposed tribunal structure seems aimed at the very targets that the RIAA and others have taken court in the US, solo mothers and high schools students. Certainly, the queries on the length and number of notices are trifling points of contention and merely portend to the level of spamming of notices rights holder groups are preparing for.

5. At no times should ISPs be required to divulge personal customer to details to third parties outside law enforcement, without the customer's explicit consent. ie. police.

6. Without sanctions for vexatious accusations, there is no opportunity cost real or imagined. MED and ISPs will be required to expend considerable resources on enforcing this proposal, whilst rights holders harvest alleged complaints through bots. For example, the requirement for ISPs to actively track infringement notice subscribers' internet traffic for some time will be onerous and contrary to their usual business. Rights holders should be charged full cost of proceedings to affected parties.

1. Once again, at no times does a rights holder have the right to seek subscriber contact details without their consent. While the ISP may release these details to the tribunal, it is none of the rights holder's business to know. It is irrelevant to their complaint.

2. N/A see above.

3. No opinion

1. No. Mediation won't work. Like DRM and regional zoning for DVDs, it is one more failing idea on maintaining an extinct business model. This change might be mitigated if copyright holders had been more adaptable to modern communication. For example, it was years after iTunes launched before NZ finally, almost grudgingly, got a foot in the virtual shop. Even now, record companies make it extraordinarily difficult for NZ music fans to be good and buy legally. Here's media commentator Russell Brown talking about eMusic, the darling of the rights holder lobby:

So all this wouldn't be so bad if the service was working properly. But it isn't. It's not just the Sony catalogue we southern plebs can't get, it's more and more stuff.
And that's not entirely eMusic's fault. It can't sell catalogue where it doesn't have the right to do so. Further, I realise that some of the people with exclusive local distribution rights are indie folk who I personally know.
But I'm still paying for something I don't get, because Sony can't get it together to localise its eMusic sales. I don't doubt that this is possible -- of course it is. It only happens because it's inconvenient to interrupt business as usual.

Rights holders are largely responsible for the situation.

2. No opinion.

3. No opinion

5. No part of this proposal causes me greater concern than the potential penalty of terminating a user's internet connection. It is draconian, disproportionate, and manifestly against natural justice. Internet disconnection is a penalty that we don't impose on criminals, let alone people suspected of copyright infringement. It is disproportionate as an internet connection is vital for businesses to operate and citizens to participate in civil society. The threat of termination of account for copyright breach must not occur. If it does pass and is enforced by the tribunal, there will be test cases in court that will get it thrown out one way or another.

Of secondary importance is the structure of fines. Penalties should reasonably reflect the value of breach of copyright. This could be a low multiple of the retail value of the most closely substitutable retail good, and not the fantastical damages which are popular in the US. A solo mother recently recently fined almost US$2 million is a case in point.

6. N/A. No disconnect is permissible.

7. Appeals should be allowed, as long as accused subscribers are provided with state-paid representation.

8. All costs should be reasonable.

Conclusion

While an improvement on the previous 92A, the current proposal is fatally flawed by including the disconnection notice threat. Rights holders have provided little evidence of compromise during negotiation. Indeed, the proposed copyright tribunal is one of the most one-sided haggles since the NZ government bought KiwiRail. If the tribunal must exist, it should seek and fine only those breaching copyright for pecuniary gain.

Yours,

Will de Cleene

Copyrightsmeller Pursuivant

Don't forget that the deadline on public consultation on NZ's copyright infringement witch hunt is this coming Friday. The Ministry of Economic Development's Zombie 92A policy document still includes burning at the stake termination of internet access as the maximum deterrent.

As Creative Freedom sez, disconnection must be taken out of the scheme at the very least. Then there's the ongoing arguments over what is deemed fair use of copyright. Also the lack of provision for satire and free comment to be made lest any multinational corporation shuts down dissent through copyright threats. And to top it all off you've got the grand daddy of asymetric fights, pitting the bottomless money pits of Sony etc against citizens.

Please let the MED know what you think. The proposal is broken up into morsels of interest, so you can pick and mix 'em as you see fit. Email MED before Friday 7th August.

Pirates vs. Superpowers

Oo ar, me hearties. It's been a week of bad news for pirates. The US used its mighty power of might to rescue a captain being held hostage by Somalian pirates. Of course, it helps to have the former fishermen turned pirates on the end of a line, reeling them in slowly before bumping them off. They have irony in Somalia, don't they?

Meantime, reports behind what motivates a bunch of fishermen to become high seas ransom factories points west. Europe has been accused of disposing of atomic, bacterial and chemical waste in the Somalian waters using its super powers of Shitting in Other Peoples' Nests. Whatever non-mutant fishing stock is left has been greatly depleted by competing fishers. With no fish in the sea, who wants to become a millionaire bounty hunter? Sounds more glamorous than starvation.

The MPAA and friends, using their super powers of attorney, have managed to get the founders of Pirate Bay found guilty of assisting copyright infringement in Sweden. The four men have been sentenced to a year in jail and a NZ$6.2 million fine (MPAAetc were asking for $24.8 million). Even so, the Swedes are far from mashed. Never underestimate the power of parley (appeals).

Top Secret Copyright Treaty

92A is not the end but the beginning. This just in from Wired via Boing Boing:

The White House is refusing to release documents about the secretive Anti-Counterfeiting Trade Agreement, a super-maximal copyright treaty that a bunch of rich countries are negotiating behind closed doors to escape the activists who've started to report on their shenanigans at the UN's World Intellectual Property Organisation.

Incredibly, the Obama administration claims that disclosing the details of this secret copyright law would endanger "national security."

...

The national security claim is stunning, given that the treaty negotiations have included the 27 member states of the European Union, Japan, South Korea, Canada, Mexico, Australia, Switzerland and New Zealand, all of whom presumably have access to the "classified" information.

Is there something John Key, Murray McCully, Tim Groser and Simon Power should be telling us about?

92A is dead

This just in from Geekzone, Telstraclear has pulled out of the Telecommunications Carriers' Forum Code of Practice, effectively killing off 92A. TelstraClear spokesman Chris Mirams sez:

"It is not our role to make bad legislation work," he says. "The industry had no input into section 92A. [The draft code] is bad for our customers. Customers and businesses have spoken via blogs and petitions and also directly to us. We have listened and we have agreed."

Without the support of such a dominant ISP, it is only a matter of time before other providers follow suit. Big ups to Telstraclear. I'm proud to have you as my ISP.

Transvision Vamp:

Canned

Obama has cancelled free trade talks with NZ. Does that mean we can can 92A now?

Copyfight headlines

Canada ISP Videotron pushes for 3 strikes copyright law:

Quebecor [owner of Videotron] argues in favour of certain instances of ISPs controlling content, including anti-spam or child pornography blocking. Moreover, it suggests that copyright policies that build upon the graduated response policies in other countries should be added to the list of content controls that benefit society.

Nicholas Sarkozy, whose government is also trying to pass a "3 strikes and you're disconnected" law, is being sued by US indie band MGMT for copyright infringement. Sarkozy's party has offered to settle for one Euro:

The party has admitted to using the popular track, Kids, at its national congress in January, in two online videos and in political advertisements. But it claims this was an unintentional mistake and offered the band a symbolic €1 ($1.43 Cdn.) for copyright infringement.

John McCain is still being sued by Jackson Browne for copyright infringement of his song "Running on Empty" which was used without permission during the presidential campaign last year:

Browne argued that copyright law protects his song even in the context of a political ad. "Defendants flood the court with paper and essentially argue that because they are politicians and political parties, they have an unfettered right to use musical compositions in political campaign commercials, and to associate themselves with any person they want to, with or without consent.

This brings to mind the little problem National had with a certain Coldplay song on a certain DVD not so long ago. Not that Coldplay haven't got issues too, mind.

Back to the Futurama

Good news everyone! Futurama may be back from the wild green yonder for a sixth season according to Voice of Fry, Billy West (Hat Tip /.). Futurama was originally canned by Fox due to "poor ratings", where "poor ratings" is defined as constantly screwing with the schedule. Well, those who care all know what happened to those executives:



NZ TV programmers weren't that great at showing the series here either. In fact, I'd say many viewers switched to file sharing sites just to maintain some form of regular viewing schedule. Programming schedulers are somewhat responsible for copyright infringement. Respect your audience!

Blackout cause has effect

As far as Blitzkrieg political activism goes, the Blackout campaign must be one for the record books. Conceived barely a week ago at Baa Camp, the campaign against 92A was spread far and wide and with a speed never before witnessed in NZ political lobbying. The uproar from across the political spectrum provided enough impetus for cabinet to suspend 92A's enactment for at least a month. If no agreement is reached, it will be gone by Eastertime.

Well done to everyone who took part, from the dreamers and schemers who came up with the idea, to the citizen organisers who provided the props for the hastily prepared protest at parliament, to all the commentators and bloggers who felt outraged enough to make a difference and spread the word, when indifference and inertia are so tempting. And a really big thanks to the new National executive, who have demonstrated an ability to listen to the punters.

Black cat on a moonless night

Et tu, 92A?

I've only ever submitted one upload to YouTube, this little evisceration of Michael Cullen:



To date, it has been viewed a whole 142 times. Although it was a complete Popularity Fail, it didn't stop whatever company that owns the rights to this obscure Queen song from sending me an advisory warning. I didn't save a copy, bugger it, but the substance of the nastygram went something like this:

We have found that an uploaded video on YouTube under this user name includes media content that belongs to us. You have used it without our permission. We don't ask you to remove this content, but we reserve the right to do so whenever we feel like it. We reserve the right to include advertising on this media, if we so choose.

I have no idea if this We Are Watching You notice was sent by a bot or a human. Either way, there was no disputing which side had the better legal team. And that was just the soundtrack. Must admit, I do feel a bit guilty to all the file footage I nicked without attribution. All those images of someone else's work and no hotshot lawyer's got their back.

It's not as if I made the clip for the money. I did it because I wanted to see what it looked like, whether it was greater than the sum of its parts. And yes it was. No other song perfectly matched the angle of the sentiment, the flamboyant rage at the former finance minister's antics, and this was before the KiwiRail purchase. The images came from that great modern library of Alexandria, the interweb, even if I had to use a backdoor or two to get the right image.

But such a brush with legal goliaths has put me off putting more stuff up. I'll stick to misappropriating phrases and smudging photos. That's about my danger level. As Russell Brown mentions, these things can get nasty:

Some time back, Daniel Gardiner, who operates a YouTube channel under the name dannews, posted an amusing mash-up of an Air New Zealand ad, which I embedded on Public Address. I received a C&D letter from Air New Zealand's chief counsel, about which I did nothing -- because I knew that YouTube would act with dispatch, and without asking questions, to take down the clip under the DMCA. This is precisely what happened. But since then, Dan has twice had his entire YouTube account frozen on the basis of complaints whose nature and source he has been unable to determine.

Whether the Air NZ legal counsel has grown a sense of humour since the affair is unknown. At least Air NZ's latest ad is almost impossible to mash into anything funnier, so at least the marketing department have noticed something. But Air NZ and other companies can't run comedy advertising and suppress mockery forever. There's a very fine line between mockery and brand infringement. The Scientologists have made good use of this vagarity to close down user-generated content pisstakes and dissent on their idiosyncratic beliefs.

Please don't shoot the magpies for borrowing a few shiny baubles or taking the piss. And please don't cut off my internet because of some minor intellectual copyright infringement. You cut off my internet, you cut off my hands, my means of communication. Even in sharia law backwaters, there's a court before they cut off your hands. And Internet Service Providers are not cut out to be some Hollywood mullah's version of the Community for the Promotion of Virtue and Elimination of Vice.

This blog goes black at midnight. I hope that Monday's cabinet meeting passes an Order in Council to suspend Section 92A until greater clarification of the rules of engagement are agreed upon.

Ceasefire on the new frontier

From John Drinnan:

Movie and music industry bosses have pulled back from a hardline approach and are belatedly considering a plan for an independent mediator to oversee protracted complaints between them and telcos.

From PCPro via /.

Pirate Bay's co-founder has pleaded for hackers to stop attacking the sites of those organisations lined up against him.

Judas Tizard

The rapport between Mikey Havoc and John Key on bFM today resulted in an apt name to sum up the furore over the 92A story thus far. Judas Tizard.


Pic from Stuff

I did my bit. Armed with a Fair Go sign that possibly breached copyright, I stood with what another person described as a Who's Who. I guessed around 200 people turned up to protest. This was no Rent a Crowd. You couldn't afford to rent this crowd; politely pissed off ISP providers, bloggers, deep thinkers, sys admins, programmers, artists and other creators, students and political junkies from across the spectrum.

Peter Dunne, always one who knows which way the wind is blowing, came down to accept the petition from Creative Freedom Foundation director Bronwyn Holloway-Smith. Dunne compared 92A to the Electoral Finance Act, and he was spot on.

Just as Mark Burton's ham-fisted and poorly drafted Electoral Finance Act helped savage Labour in the election, Judith Tizard will be remembered for brutalising Labour's support due to 92A. Clare Curran pretty much confirmed this idea not long afterwards, when she also addressed the protestors.

Like the Electoral Finance Act, Labour are keen to cut loose of their past mistakes. The previous Labour leadership had pursued victory at any cost. With the EFA, it was to shut down dissent. In the case of 92A, it was to clinch an American Free Trade Agreement to wave under the noses of the middle voter. Labour lost and the purge is on. They need to lose a lot more baggage than Burton and Tizard, but it's a start.

So, repeal or postponement would have the support of Labour, the Greens and United Future, at the very least. As Met Turei says, it's all rather academic because it's really up to John Key's cabinet, with guidance from Ministers Simon Power and Steven Joyce:

The Greens did not deny leave, why would we as the bill wont make the situation any worse? But it certainly wouldn’t make any difference to the problem – that is that if Cabinet doesn’t agree on Monday to issue an order in council to prevent section 92A from coming into force, then as of 28 February ISP will have to comply with the provision.

Everything comes down to Monday. Get an email off to the relevant Ministers. Contact details for them here (.pdf). Do your bit!

Blackout at Parliament

Creative Freedom NZ has organised a protest against the "guilt by accusation" copyright law tomorrow in Wellington:

When: 12:3012:00 noon, Thursday 19 February
Where: Parliament forecourt
Wear: bright colours, with a black placard

Ripped from No Right Turn.

The Outlook for Thursday? Fine, 21 Celsius, light Northerlies.

Copyfight Club

If there's any doubt in your mind that the new NZ Copyright Laws are not part of a concerted global attack by a desperate and failing business model, have a read of the BBC story on The Pirate Bay:

Authorities denied that the raid was prompted by urging from the MPA, the international arm of the MPAA, but the Swedish media revealed that the MPA had met with the justice ministry in the months before the raid...

In September 2007, hackers leaked six months of internal emails from anti-piracy company Media Defender, which revealed that the company was discussing hiring hackers to attack the Pirate Bay's servers.

Pirate Bay have long taunted the multinational copyright monopolists with fart-in-your-general-direction type scorn. All the best to them with this court case.

Here in NZ, my suspicions of corporate interference on policy was confirmed during the Election '08 Internet Debate (.rtf):

FRAN O’SULLIVAN I was talking this morning with Phil Goff up in New York and he was just announcing these new free trade talks with the US and others and we had a bit of a debate about, well you know, what’s in it for the United States. He said well one of the key issues the US will have is intellectual property and copyright and we have just heard some very staunch comments here from the panel. But I wonder, you know, how you can uphold those principles once the US gets involved?

One really feels sorry for APRA. They're prepared to front up and tell their side of the story to any who will listen. But the impetus and motivation behind 92A is really the beancounter division in the Old Empire of entertainment corporations.

In other news, they're reading about the Blackout here.