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Let's say you were accused of copyright infringement. Let's also include that your ISP made a mistake. Their logging server had the clock wrong, or daylight savings not applied, or some other mistake. They matched up an IP to you, but they got it all wrong. they're a small ISP and they don't have much money to spend ensuring their system is correct, and there's no real incentive to make sure it is. they don't care.

You were home at the time, infact you were online chatting to your sick grandma on skype. You did not download the files you are accused of downloading.

Now, prove it wasn't you that downloaded 3 Lady Gaga albums?

Hard ask, isn't it? How do you prove you didn't? The copyright holder claims you did, the ISP claims it was you. The ISP doesn't, and shouldn't, record what you did online. How are you to prove it wasn't you?

Is the claim "it wasn't me, i didn't do it" enough? How does that hold up?

Maybe the copyright holder made it up? Maybe they just put together big giant lists of random IPs - what's the stop them doing that? They then sit back and collect the money from damages, from people in countries that have streamlined automated copyright accusations like New Zealand is in the process of doing. Move over patent trolls, here come copyright trolls.

"Section 92a" got alot of attention, due to bad wording that meant an ISP would need to disconnect customers accused of copyright infringement, unless the ISP was really sure the customer was not infringing copyright (and if the ISP was wrong, the ISP themselves were liable). S92A was defeated, and the new replacement before parliament includes due process and the right to contest allegations.

but somehow "Section 92C" survives, and is current New Zealand law. 92C applies to web content, and unlike 92A, doesn't have the word "repeated" in there. One strike, you're gone.

http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM1704699.ht...
Brace yourself for some legalese - here's the legislation.

Internet service provider liability for storing infringing material
....
(3) A court, in determining whether, for the purposes of subsection (2), an Internet service provider knows or has reason to believe that material infringes copyright in a work, must take account of all relevant matters, including whether the Internet service provider has received a notice of infringement in relation to the infringement.
4) An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.

Torrent freak, a news site for those who participate in torrent networks (legal or otherwise) is claiming "Kiwi 3 Strikes Anti-Piracy Bill Receives Unanimous Support".
http://torrentfreak.com/kiwi-3-strikes-anti-piracy-bill-receives-unanimo...

However, that is incorrect. Support was not unanimous. Clare Curran, Labour Party MP spoke up on twitter that her speech was not 100% supportive of the new bill. (Labour is NZ's largest opposition party) Here's the speech http://tinyurl.com/2egf9sc
(It's a little bit tl;dr for me.. sorry Clare, i have way less time now in between changing nappies on a small person - can has podcast version?).

What is supported unanimous, is the removal of "guilt by accusation" that was in the 2008 amendment by the last Labour government and supported by the National party (the Greens and maori party did not support the 2008 amendment)

In the new 2010 amendment (still before parliament), a risk adverse ISP is finally not required to act upon accusations alone and disconnect their customers in order to avoid liability themselves. The new bill, as currently written, ensures that ISPs are never expected to judge the merits of any accusation like they were under the 2008 amendment. It was ridiculous to expect an ISP to know the difference between a song you bought, a song you stole, a song you wrote, and what "fair use/dealing" exceptions apply etc. etc.

So those not infringing copyright no longer need fear they're be disconnected.

Regular readers of this blog will know I'm involved in ensuring evil forces do not take over the internet and lock it down so they control who can use it.

The latest threat to the open uncaptured internet is a multilateral treaty called ACTA. It has been negotiated in secret by a small set of wealthy nations including New Zealand. (Secrecy is not normal for multilateral treaties ). Its been labelled national security secret.

The full draft text of this national security secret has been leaked many times. What does it contain? Mandatory disconnection from internet If you're ever accused of copyright infringement (possibly even if you are innocent) known as "3 strikes" or "graduated response"; Routine search of laptops and ipods at the border of these nations; Seizure of generic drugs (same drug as the branded thing, just cheaper); Surveillance of your internet connection and the revealing of your private data.

Its basically the wishlist from encumbent media giant corporates like Disney and Sony who are afraid of the internet, and some big pharmaceutical companies maximizing profit. It contains alot of "unintended consequences" that are bad for free speech, freedom, and people's rights to not be punished without due process. ACTA resembles the defeated copyright acta s92a, but on steroids.

I spent all Saturday with people from most NZ political parties, legal experts from a many nations, musicians, humaritarians, book publishers, scientists, librarians, authors and tech nerds like myself. The end result is a document called "The Wellington Declaration"

Someone once defined a Compromise, as a Solution neither party is happy with...

New Zealand has a new section 92 of the copyright act -- or rather, the copyright bill. The first reading of this bill in Parliament was last week.

The core principle of the right to contest accusations, and to not receive punishment until after due process, is now in the bill. That is the one thing I'll never compromise on.

However we must remain vigilant. The injustice was not obvious in the old law, it only reveals itself when you think through how the law could possibly be implemented. I'm gonna keep following this closely.

Disconnection is still in there. It really shouldn't be. How many times do we need to say "Would you disconnect someone's power, water, gas, for breaking civil law? Would you deny them use of the postal service?". Why are we terminating a service vital to livelihoods, social and democratic participation and communication - all for the offense of copyright infringement? The punishment outweighs the crime, and is inventive and inappropiate.

Large scale commercial copyright infringement should be punishable with fines. Casual personal copyright infringement should also be punishable with fines.

ACTA is that inglorious treaty New Zealand is negotiating with the USA, that has been deemed a "National Security" secret, and involves stopping fake Prada handbags, as well as taking away our rights online.

Recent ACTA leaks include this juicy piece of shitting on ISPs:

ISPs to be liable under civil law for content uploaded and/or downloaded
by subscribers, unless they agree to terminate service to "repeat offenders".

This is sometimes called "Safe Harbour", meaning a set of actions an ISP must do to be safe from liability -- It's also the same smelly stuff that was in Section 92A of New Zealand's Copyright act. We managed to stop Section92A, but ACTA is the same thing dressed up as a treaty.

"Repeat Offenders" could mean only those convicted in a fair trial -- but even then, I am greatly opposed to ever laying the blame for copyright infringement on an ISP. Other than being unfair, it is another cost they'll need to pass onto all customers. It sounds very much like once again requiring ISPs to judge the merits of an accusation against one of their customers, with the implication that ISPs are required to spy on their users in order to gather evidence to verify or disprove accusations against their customers.

I say: If you break copyright law, you are the blame, and you should face the consequences. We all need to stop aiming legislation at the ISPs. The ISPs should never be liable for the actions of others.

ACTA resembles a poonami for the Internet. I just learned that word; ask a parent if you don't know what it means ;-)

The verdict is out in the case of numerous media/entertainment companies versus an ISP over in australia.

The entertainment companies wanted a ruling that an ISP is responsible for the actions of their customers - so they sued an ISP for "allowing copyright infringement to occur".

Now, we can't have that. If someone breaks copyright then they should be responsible for their own actions, not their ISP, not the mail service, not the maker of the fax machine, not the people who built a photo sharing website.

Commonsense prevailed, and the judge ruled in favour of the ISP. The entertainment companies now must pay the ISPs legal costs.

I've picked some of that commonsense from within the judge's ruling:

In summary, in this proceeding, the key question is: Did iiNet authorise copyright infringement? The Court answers such question in the negative for three reasons: first because the copyright infringements occurred as a result of the use of the BitTorrent system, not the user of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.

On the incorrect use of the word "theft" to describe copyright infringment:

A draft of the ACTA treaty has been leaked just as government representatives of the world begin secret negotiations in Korea today. This treaty originates in the USA, and is being negotiated with many countries including New Zealand.

Boingboing have some analysis of the leaked draft::

* That ISPs have to proactively police copyright on user-contributed material. This means that it will be impossible to run a service like Flickr or YouTube or Blogger, since hiring enough lawyers to ensure that the mountain of material uploaded every second isn't infringing will exceed any hope of profitability.

* That ISPs have to cut off the Internet access of accused copyright infringers or face liability. This means that your entire family could be denied to the internet -- and hence to civic participation, health information, education, communications, and their means of earning a living -- if one member is accused of copyright infringement, without access to a trial or counsel.

* That the whole world must adopt US-style "notice-and-takedown" rules that require ISPs to remove any material that is accused -- again, without evidence or trial -- of infringing copyright. This has proved a disaster in the US and other countries, where it provides an easy means of censoring material, just by accusing it of infringing copyright.

With only four days until the Guilt Upon Accusation law, Section 92A of the Copyright Act, is due to come into force the Creative Freedom Foundation (CFF) are highlighting statistics that paint a picture of what New Zealanders may face if the Government allows this law.

Statistics emerge around the Guilt Upon Accusation Law.. With only four days until the Guilt Upon Accusation law, Section 92A of the Copyright Act, is due to come into force the Creative Freedom Foundation (CFF) are highlighting statistics that paint a picture of what New Zealanders may face if the Government allows this law.

S92A was championed by former Labour MP Judith Tizard as a law that would cut off the internet of those "who might be breaking the law" without any due process – effectively removing New Zealander's fundamental right to being presumed innocent until proven guilty. Prime Minister John Key has aptly called this law "draconian".

209.85.175.132Source: 209.85.175.132Ko te putanga html tēnei o te kōnae http://www.tcf.org.nz/content/ebc0a1f5-6c04-48e5-9215-ef96d06898c0.cmr. Ka mahia aunoanoatia e G o o g l e he putanga html o ngā tuhinga i te wā ngōki i te tukutuku.    From Google's submission on TCF code practise

Section 92A puts users’ procedural and fundamental rights at risk, by threatening to terminate users’ Internet access based on mere allegations and reverse the burden of proof onto a user to establish there was no infringement. …

Copyright law is often complex and context sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. Indeed, in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders. In this context, the responsibility should not fall to ISPs to determine cases of infringement.    

Section 92A has an impact of every internet user in New Zealand - but 92C is worse.

The ISP/webhost is strongly encouraged by this law to take down the website of any customer accused of copyright infringement.

92C requires a webhost to not only become a judge & court, but also the ISP/webhost is liable if they decide "not guilty" and a real court later decides they were gulity.

It takes a really brave ISP/Webhost to say "not guilty".

92C is clearer than 92A, swifter to punish, and there is no code of practise (not even a draft) to protect those that are accused but are not guilty.

New Zealand Lawyer Web Site > Current Issue > Issue 106 > F2

A serious implication of the termination policy obligation in section 92A is that it ultimately requires ISPs to police copyright infringement and enforce rights on behalf of copyright holders by cutting off users’ Internet accounts. One factor that exacerbates these concerns is the broad definition...    

from NZLawyer Magazine this bit is a good summary of why there are so many NZers protesting against this law

Section 92A effectively imposes the work of a court on the shoulders of a commercial – or in many cases, private – entity. ISPs will be required to both make a judgement and carry out the sentence. Within the draft Code, there is also some discretion granted to an ISP in evaluating evidence and determining copyright infringement.

Although the rights of copyright holders may be preserved under the ISP liability regime, it is arguable that some of this is at the expense of the rights and freedoms of others. Users are uncomfortable with the potential for the unqualified termination of users’ accounts by ISPs who fear falling short of the legislative threshold of termination for “repeated infringement”. Of equal concern is the ability for copyright holders to further limit the legitimate “fair use” of copyrighted works by Internet users.    

From computerworld.co.nz

A local website has removed recordings of the Conan novels under the threat of legal action from the US, despite the material being in the public domain in New Zealand.

New Zealand-based audio enthusiast website BrokenSea Audio ran into trouble with the copyright holders of Robert E. Howard characters and stories, primarily the stories about Conan the Barbarian, created by the Texan writer in the 1930s.

The material in question is in the public domain, the threat of "one accusation and you're taken down" has caused a host removecontent voluntarily, even though the content is in public domain and they have every right to distribute it.

BrokenSea decided to comply with the demands. All Conan audio dramas and audio books produced by its volunteers have been removed from the website, and a major project — a production of Howard's only full length Conan novel, Hour Of The Dragon, which Mannering had adapted into a full cast audio drama script — has been cancelled.

Under New Zealand copyright law, if a website is accused of copyright infringement, the webhost must take down the content. If the webhost does not, they could be liable for any copyright infringement, even though it isn't their actions that cause the content to be there.

This is in section 92C of our copyright (new technologies) amendment act.

i'm going to put the final fullstop on my submission this weekend.

here's the portions i'm working on.

Education

The ongoing theme/goal of this debacle is "education" of Copyright Infringers. Many professional educators will tell you that you can't teach by saying "Don't do that" and expect someone to just stop.

For example, you can try telling a child to "Stop running" but you'll have much greater success if you tell the the child to "Walk, don't run." Instead of saying: "Stop eating with your hands", you ought to say "Use your knife and fork".

The same holds for "eduction notices". Don't say "Stop downloading Regina Spektor", but instead say "Go buy Regina Spektor's music on CDbaby.com, emusic.com, audiogalaxy.com, or Apple iTunes".

Once you have positive actions included, then the notice actually becomes a "education notice".

False accusations

It has been suggested that those that make false accusations of copyright infringement (repeatedly) should get their internet cut off -- i propose a compromise -- if a issuer of infringement accusations is shown to be making false accusations repeatedly they must lose their right to make further accusations.

This is inline with the intent of the copyright act, because it would be completely unreasonable to cut off someone based on the accusations of someone who has been proven to not be careful in their accusations.

Copyright Adjudicator

If you also wish to black out your avatar, in protest of "Guilt upon accusation" within New Zealand's new Copyright laws, you may use the attached black images.

(images released under WTFPL)

the law (section 92a) comes into effect on 28th February - it just needs the new cabinet ministers to sign it off.

This is the last week to "make some noise".

If you haven't written to your MP, or Steven Joyce (Minister for Communications) yet, then there is still time. A letter to either doesn't even need a stamp if posted in New Zealand.

APRA and RIANZ Seek Power To Judge Copyright InfringementSource: holloway.co.nzTypically a wrongly accused person would respond with what’s called a Counter Notice saying that they reject the accusation and an ISP would judge that, but with the RSCN Procedure the accuser is empowered to decide whether the accused’s Counter Notice is valid, not the ISP.     Instead of your ISP judging your guilt, how about the person who accussed you gets to judge it?

The TCF invite your feedback. http://tinyurl.com/tcf-draft-homepage    

heise online - 30.01.09 - Keine Internetsperren bei UrheberrechtsverstößenSource: www.heise.deDas Bundesjustizministerium strebt kein System der "abgestuften Erwiderung" auf illegale Filesharing-Aktivitäten an, während sich ein irischer Provider in einem Rechtsstreit mit der Musikindustrie auf ein solches Verfahren einließ.    Germany will not be passing "Guilt apon accusation" style laws. saying that Three Strikes is incompatible with German pirvacy and telecommunications laws.

Back in January the UK declared they also would and could not pass laws implementing guilt apon accusation.

Meanwhile, guilt apon accusation becomes law in New Zealand on 28th February    

Making intentionally false allegation of copyright infringement is a really really bad idea - i suspect it would be considered fraud - and i'd advise anyone planning such things to rethink. Suggestions in comments that someone should accuse the prime minister, cabinet, APRA and more is really bad advice.

There is no penalty for mistaken false accusations -- that's not the same as intentional false accusations.

Most torrent trackers include a large number of false IPs - they list people who aren't sharing at all, they're just randomly chosen - and that is how a group of researcher easily convinced the RIAA to falsely accuse a printer of sharing/downloading films illegally.

It has been suggested that you can find a list of government departments, libraries, schools and hospitals and add them to a tracker -- make it look as if they too are sharing stuff when they're not -- trivial to do.

This also would be a bad idea - and i advice folks to not do it - but i can't think of how you'd ever be caught.

18 December 2008) Press Release: Creative Freedom Foundation
Campaign Against Guilt Upon Accusation Laws in NZ
The Creative Freedom Foundation launches today in New Zealand to unite artists who are against the removal of New Zealander's rights through proposed changes in Copyright law, done in the name of protecting creativity.
http://www.scoop.co.nz/stories/PO0812/S00232.htm

13 January 2009) Press Release: InternetNZ
Urgent Govt action needed on Copyright problem
InternetNZ (Internet New Zealand Inc) calls on the Government to urgently resolve problems with Section 92A of the Copyright Act, to prevent the cutting off of Internet access to innocent people and businesses, and disruption to business.
http://www.scoop.co.nz/stories/SC0901/S00015.htm

14 January 2009) LIANZA letter (Library & Information Association New Zealand)
Strongly recommending section 92A be repealed
ISPs will be required to act on accusations of illegal access of copyright materials by users (thereby reversing the legal principle that a person or organisation is deemed innocent until proved guilty)
http://www.scoop.co.nz/stories/PO0901/S00143.htm

15 January 2009) Press Release: NZ Computer Society
Copyright Law “Ethically Flawed”
The New Zealand Computer Society (NZCS) today labeled Section 92a of the new Copyright Amendment (New Technologies) Act 2008 “Illogical” and potentially “Ethically Flawed”.
http://www.scoop.co.nz/stories/PO0901/S00092.htm

16 January 2009) press release by APRA, RIANZ & NZFACT
"New Zealand Creative Industries welcome changes"
Section 92a brings an opportunity for ISPs and rights holders to work together to address the large-scale online piracy problem that is affecting creative industries in New Zealand and worldwide.
It is estimated that 19 out of every 20 music downloads is an illegal download. Between 60 -80 per cent of all internet traffic is peer-to-peer sharing of copyright infringing files. This deprives the songwriters, record artists, actors and all those who work in the creative industries the opportunity for payment for their creativity and effort to produce the songs, movies and software you enjoy.
http://www.scoop.co.nz/stories/BU0901/S00174.htm

16th January 2009) press release by NZ Creative Freedom Foundation
"Thousands of artists have rejected the idea that the creative sector want this done in their name"
No one is seriously saying that creators shouldn't be paid. Conflating the issue of copyright infringement and guilt upon accusation laws is dishonest and misleading.
http://creativefreedom.org.nz/story.html?id=43

20 January 2009) press release by Creative Freedom
"Artists Against Guilt Upon Accusation Laws"
The Creative Freedom Foundation announced today that thousands of artists have signed their petition against the removal of New Zealander's rights through changes in copyright law, purportedly done in the name of protecting artists and creativity.
"While copyright infringement is a problem for artists, our petition shows that thousands of artists think that it is a greater problem for people not to get a trial. Treating fans as guilty until proven innocent isn't what artists want done in their name, and many see that as being damaging to creative industries."
http://www.scoop.co.nz/stories/CU0901/S00118.htm

20 January 2009) press release by APRA
"Attack on Copyright Laws Refuted"
The suggestion that the new legislation was "draconian" or presumed simple "guilt by accusation" is ridiculous. It is a continued attack on our songwriters whose ability to make a living from their music has already been compromised by widespread illegal file sharing on the internet by those who believe it everything should be free and by the internet companies that profit from it. ....
Music has real economic value and our music writers deserve food on the table and a roof over their head. We know some people want everything for free but the vast majority of songwriters expect and deserve to be paid"
"Without such provisions every legitimate business model involving creative content on the internet is threatened" says Healey
http://www.scoop.co.nz/stories/BU0901/S00203.htm

21 January 2009) press release by Creative Freedom Foundation
Response to APRAs Statements on the Creative Freedom Foundation
No one is seriously saying that "everything should be free" - especially not the Creative Freedom Foundation. APRA appears to be arguing a black and white case - that you are either for this law, or believe that "everything should be free". This stance is both ill-informed and absurd.
S92A requires ISPs to act upon accusations of copyright infringement and to punish with internet disconnection before a trial and before the evidence has been held up to court scrutiny.
http://creativefreedom.org.nz/story.html?id=51

21 January 2009) press release by ISPANZ
"Copyright issue: Select Committee got it right - Section 92A must be stopped"
ISPANZ notes that the Select Committee considering the original Bill, which was chaired by Hon Gerry Brownlee, rejected this approach, but the previous Government reinserted the clauses in a last minute action, making New Zealand a guinea pig for experimental cyberlaw.
Baddeley says ISPs are being placed in a terrible position
“Under Section 92A We’ll be damned if we do and damned if we don't. We'll be faced with dealing with an accusation, not proven, of a copyright infringement and making a very difficult judgment call. If we decide in favour of our customers, we risk being sued by global media powerhouses. If we decide in favour of the rightsholder and disconnect a customer from the Internet, we risk being sued by customers for breach of contract. Disconnecting customers goes against everything we do."
http://www.scoop.co.nz/stories/BU0901/S00209.htm
Librarians join protest against implementation of new section of Copyright Act

22 January 2009) Library and Information Association of New Zealand Aotearoa
"Librarians join protest against implementation of new section of Copyright Act
LIANZA, the Library and Information Association of New Zealand Aotearoa, representing 460 public, educational, commercial, industrial, legal and government libraries in New Zealand, has joined the widespread protest against the implementation of new section 92A of the Copyright Act, which comes into force on 28 February 2009.
LIANZA has three major concerns about this section. The first concern relates to the extremely wide definition of internet service provider. As written, every person or organisation that has a website is an ISP, as is every library, school, educational institution, association, government department, company, business and office that provides Internet access to its users or to its staff.
http://www.lianza.org.nz/news/newsroom/news1232571195.html

Group petitions against copyright law changes | TECHNOLOGYSource: tvnz.co.nzWatch TVNZ news tonight for Bronwyn Holloway-Smith speaking on New Zealand's "guilt apon accusation" style copyright laws.

New Zealand has a new Copyright Act, that goes into effect on 28th February 2009

In amongst the act is section 92a: ISPs are required to disconnect those accussed of copyright infringement. This was worrying, and during select committee discussion this was modified to have penalties when the accuser turns out to be wrong. (see Controversial copyright clause to be amended computerworld.co.nz)

At the last minute the penalties for wrong accusations was removed. So, the copyright act passed, with section 92a allowing copyright holders to accuse anyone of infringement, without requiring proof - and ISPs are forced to comply and disconnect service. You don't get a trial, you're just cut off and no more internet for you.

No more email, no booking airlines, no more buying books on the internet - you're cut off based only on an accusation. If they decided to accuse me, I would not be able to continue my occupation as an Open Source programmer / gadget wrangler. I'd have to give up and probably retrain as a barrista.

This is New Zealand law. You can't make this shit up!