2009/2/20 Ed Kelly <[email protected]> > Hi, > 1st of I understand this is not 'developer' related directly 'unless' > it was implemented... > > Not 100% sure if this is coincidence however some of you may know New > Zealand has some very draconian legislation coming into effect on 28 > Feb namely Section 92 of the Copyright Amendment Act nicknamed Guilt > Upon Accusation law.
I've commented elsewhere on this. I don't think the campaign against the amendments is doing itself any favours by describing the law in those terms. I have some sympathy as a political campaigner myself, but I know its important not to overstate a case otherwise one looks stupid. Now in this case the Copyright (New Technologies) Amendment Act 2008 does many things, one of which is to insert new ss.92A-E into the Copyright Act 2004, which you can find here: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345634.html The amending act is here: http://www.legislation.govt.nz/act/public/2008/0027/22.0/viewpdf.aspx but s.92B-E appear to already be in force. I don't like the way s.92A is structured, but it does not contain a provision that requires ISP's to terminate the accounts of their customers merely on accusation. It says: "92A Internet service provider must have policy for terminating accounts of repeat infringers "(1) An Internet service provider must adopt and reasonably imple ment a policy that provides for termination, in appropriate cir cumstances, of the account with that Internet service provider of a repeat infringer. "(2) In subsection (1), repeat infringer means a person who re peatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner. Two notes: (i) a "repeat infringer" is someone who does infringe more than once - it is not someone who has been accused more than once. s.92A does not require a policy to deal with those accused of infringement. (ii) disconnection is only required in "appropriate circumstances". This is almost identical to the DMCA repeat infringer policy provisions although put in stronger terms (in the DMCA the repeat infringer policy is merely required as a requirement for the ISP to take advantage of the DMCA's safe harbor provisions, here it is free-standing). You may not like it, but it is a *long* way from a guilt by association law. Now these provisions are bad. A post here: http://www.geekzone.co.nz/juha/6270 gives some discussion of why. The badness has nothing to do with a guilt by association law, but to do with the pusillanimous nature of the ISP's protection from copyright liability. The DMCA does a much better job. But *our* laws (in the European Union) can be criticised on exactly the same basis (and indeed aren't much different). I've been saying this like a broken record but no-one much seems to take any notice. I certainly don't remember calls for internet blackouts when the e-commerce directive was passed. Also, these laws protect ISP's from liability. What is wrong is they aren't *good enough* protection. > > It's been posted onto Ars Technica and will no doubt arrive on our > favourite sites too, they are asking for an Internet Blackout protest > > http://creativefreedom.org.nz/blackout.html > http://creativefreedom.org.nz/s92.html > > As some of you will be aware The Convention of Modern Liberty takes > place on the same day in the UK. > > http://www.modernliberty.net/ > > I wonder if this would be something My Society would support (as > similar plans have already been mooted for the UK)? > > I accept My Society does not directly deal with this type of thing > (copyright infringement et al) but after the recent success regarding > the 'climbdown' over MP expenses it may be worth a blog post as a show > of solidarity. > > What do people think? I personally would love to see My Society > possibly do it on the 28th with an indication that we 'could' be next > but that's my personal view. It sounds more like an Open Rights Group thing, you might want to read what has been said so far in ORG-discuss and perhaps try to galvanise activity over there. The directive allows member states to impose certain kinds of obligation of this kind. The government do make noises about it but its easier to oppose something that has reached the concrete proposal stage. In principle you could obtain an injunction against an ISP to order them to take action against a repeat infringer as the law stands, though that might be an impossibly impractical thing to do. This is (by the way) another hole in our existing law, but I find when I try to discuss what is actually wrong with internet copyright liability law with anyone in the UK their eye's glaze over and they lose interest. Much more exciting to get upset about exagerrated headlines from the other side of the world. -- Francis Davey
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