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ACTA, is a trade treaty being negotiated by the world's wealthiest nations, and looking likely to screw over the world's less wealthy nations. New Zealand is amongst the negotiators, but while we're present, the leaked draft reveal many things that are not good for us.

ACTA includes stopping generic medicines - so if you cant afford the patent holder's drug, then you have to go without your life saving medicine. This greatly alarms many nations dealing with AIDs epidemics, or other illnesses in their population, who are saving the lives of their people with cheaper generic drugs, and see this as more important than feeding massive profits to foreign pharmaceutical companies. Generics are the exact same medicine, but from another manufacturer.

Famously a shipment of generic medicines bound for India was seized and destroyed by dutch authorities in international waters, over a year ago. The sick in India did not receive their medicine. Hence India are very very very alarmed by ACTA, and have called for allies in stopping ACTA.

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.

French pass "3 accusations and then no internet for you", but you'll keep paying for the internet access anyways.

France Passes “Three Strikes” Anti-Piracy Law | TorrentFreak

In an attempt to reduce piracy, the French have passed a new law requiring Internet service providers to cut off Internet access for repeat copyright infringers. Under the new ‘HADOPI’ legislation ISPs have to warn their customers twice that they are accused of infringing copyright. If both warnings are ignored, Internet access for that subscriber will be terminated for up to a year - and they’ll have to keep paying their ISP bill throughout this period too.

While Torrentfreak are concerned about the affect on piratebay, the larger concern is the affect on those who are *not* infringing copyright, but get accused anyways, due to either mistakes, or perhaps malicious intent.

The law goes much further than disconnecting alleged file-sharers though. In addition it is now possible to take “any action” in order to put a halt to copyright infringement. For example, websites can be blocked without having to provide hard evidence that they are engaging in illegal activities. The Pirate Bay has already been mentioned as one of the sites that could be easily taken out under the new law.

Over in Australia, that giant group of "movie industry" companies failed to convince the judge of the merit in their case against an ISP for "allowing copyright infringement".    

The Sydney Morning Herald Blogs: Gadgets on the Go

Movie studios suing Australian internet provider iiNet have dropped some charges, no longer claiming the ISP directly infringed copyright laws by refusing to disconnect customers downloading pirate movies.

The Australian Federation Against Copyright Theft, representing various copyright holders, had accused iiNet of committing "conversion" - directly infringing copyright by interfering with the copyright holders' "rights of possession". The charge was dropped after AFACT lawyers failed to convince Federal Court judge, Justice Dennis Cowdroy, of its merit. The judge has ordered the studios pay iiNet's court costs relating to that claim. 

Whenever this ISP recieved an accusation of copyright infringment, they would pass the matter onwards to the Australian police. The ISP did not wish to become the unpaid copyright police for large movie studios, nor were they qualified for such a job.

The remaining charges revolve around whether iiNet is liable for the actions of its users and their alleged copyright infringement.

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.

Imagine if NZ Post was required to keep a photocopy of every thing you send in the post, unsealing the evelope to do so - including all your credit card statements, confidential contracts, love letters, photos of your kids sent to their grandma. Imagine what a stamp will cost under this law?

All this would need to be saved just in case you get accused of copyright infringement by post - and if you are accused, your local postman is to be the judge of your guilt.

If you are accused, and the postman can't work out if you're guilty or not, they will take the safer path and "disconnect you". You are now denied from sending or receiving any mail.

Lets imagine you are guilty -- you posted a video of your 2 year old daughter dancing at her birthday party, and in the background there's some music by the wiggles - you infinged copyright both by recording this moment and by sharing it with their grandparents.

You are denied use of the post. Now you can no longer receive you bank statement, no more photos sent to grandma, no christmas greetings from your sister in Ireland, and no more love letters.

Imagine it's 1990 and Post is how everyone sends these things.

You're going to struggle to file a tax return, government departments can't send you information, you won't get that invite to speak at a conference.

Then imagine it's today - and it's not the Post, but your ISP -- and now you have the situation in New Zealand.

Over in Oz, where copyright law is word almost the same as in New Zealand, ISPs decided it is only "reasonable circumstances" to disconnect their customer from the internet when there is a court order, and accusations in unclear cases they referred onwards to police

and then a large group of content publishers sued an isp "for allowing piracy". (November 2008)

Here's a quote-worthy quote from the CEO of that ISP:

"I think they genuinely believe that ISPs have a secret magic wand that we are hiding and if we bring it out we can make piracy disappear just by waving it"
iiNet CEO Michael Malon

You gotta wonder where this might head - if an ISP is liable for copyright infringment crimes through their network, what other crimes are they liable for. Blackmail. stolen credit card numbers. underage gambling. underage pornography. unlicenced medical treatment. .. so many crimes and torts must be possible down an internet pipe, is the ISP to take the blame for those too?

And it's easier to sue an ISP - you can find them without breaking privacy laws.

p.s. it's "copyright infringement", not piracy, and not theft - those are completely different crimes.

What formats do copyright infringement accusations take? In Overseas-land (you know, that place that isn't New Zealand, where the accusers come from), they've automated the process.

They send an email, containing info on who the accuser is, and that they were authorized to send this accusation.

This email is PGP signed, so it cannot be forged and really comes from one of these record label or movie studio people etc.

The email has an attachment, an xml doc, describing who the infringer is.


---Start ACNS XML
<?xml version="1.0" encoding="iso-8859-1"?>
<Infringement xmlns:xsi="http://www.w3.org/2001/XMLSchema-instance" xsi:noNamespaceSchemaLocation="http://mpto.unistudios.com/xml/Infringement_schema.xsd">
<Case>
<ID>xxxxxxx</ID>
<Status>Open</Status>
</Case>
<Complainant>
<Entity>XXX, Inc. on behalf of YYY</Entity>
<Contact>Compliance Manager, Compliance Team</Contact>
<Address>P.O. Box ZZZ, CityName, State ZipCode United States of America</Address>
<Phone>(xxx) xxx-xxxx,(xxx) xxx-xxxx</Phone>
<Email>yyy@foo.com</Email>
</Complainant>
<Service_Provider>
<Entity>University of Washington</Entity>
<Address></Address>
<Email>uwdmca@u.washington.edu</Email>
</Service_Provider>
<Source>
<TimeStamp>2008-05-05T20:54:30.000Z</TimeStamp>
<IP_Address>xx.xx.xxx.xxx</IP_Address>

Scoop: Copyright issue: Select Committee got it rightSource: www.scoop.co.nzBaddeley 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...