2009/2/21 Matthew Somerville <[email protected]> > > > > Where does it say that in subsection (2)? It's a factual statement - a > repeat infringer is someone who has repeatedly infringed the copyright > in a work etc. - nothing about "in the opinion of the internet service > provider" or "in the opinion of the copyright owner". I can't see how it > can be read any other way but that a repeat infringer has to actually > have repeatedly infringed the copyright in a work etc. > > Can you point me to some legal interpretation that says otherwise? I'm > really interested, I'm not trying to say I agree with the law or > anything, but I really can't see the interpretation that you're putting > on it. >
Let me see if I can help unpack this at all. The word in s.92A is reminiscent of the wording in 17 USC 512(i) (introduced by the Online Copyright Infringement Liability Limitation Act, title 2 of the DMCA) (i) * Conditions for Eligibility.— * (1) * Accommodation of technology.— * The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and As previously noted this requirement is a condition of being able to use one of the OCILLA "safe harbors". In other words you don't have to operate a repeat infringer policy, but if you don't, you risk being unprotected. Incidentally, I cannot see any penalty or consequence for failing to comply with s.92A in the NZ act, but maybe it would be treated as a breach of statutory duty so they could be sued. Who knows? 512(i)(1)(A) looks very like 92A with the small difference that the ISP is required to inform its subscribers and account holders of the policy (which it should do anyway as a matter of good practice). David Nimmer (currently responsible for Nimmer on Copyright) wrote an excellent analysis of the US legislation. His conclusion was that "repeat infringer" meant either someone who had been found so by a court or someone the ISP has actual knowledge is a repeat infringer. The US courts may have added an additional complexity to this provision, binding it up with the take-down provisions in s.512 but which do not relate to all the safe harbors. That is a complexity which will not be present in the NZ legislation. So what? My view is that to interpret this legislation as requiring an ISP to have a policy which leads to terminating a customer's account after the ISP has been informed of infringement by a rights holder would be truly perverse. My limited experience of the NZ superior courts is that they don't seem to be that perverse. Note also that an ISP might well want to terminate repeat infringers to limit the hassle factor if for no other reason. There's no right to access to the internet and ISP's are commercial organisations. The *other* provisions concerning ISP liability in this act are sufficiently weak that an ISP might find it easier not to take a robust line with rights holders. I've already explained my criticism on that point. Be that as it may, we seem to have plenty of reasonable ISP's in the UK despite the liability side of the law being almost identical. A policy only to disconnect those who have been found to be repeat infringers by a court might well be reasonable. A policy to disconnect those accused who do not deny the allegations as well would almost certainly be unimpeachable. (what I mean is if the ISP gets a notice from a rights holder, they copy it to the account owner and say - if you disagree with this let us know and you guys can fight it out in court, if you agree you've been a repeat infringer then we may disconnect you unless you give us a good reason not to). Recall that the policy does not require an ISP to automatically disconnect a repeat infringer. Note also that it is the account holder who has to be the infringer. The fact that the account holder's daughter, sister, friend, dog or a wardriving professional copyright infringer is a repeat infringer is not enough to engage the policy. Yeah, sure, this is rubbish law and rubbish lawmaking and its amazing that the NZers are only *now* getting some decent ISP protection. God's teeth the DMCA has been around nearly 10 years now, what were they doing? But, when you attack a rubbish law its worth doing so accurately and intelligently. This attack is neither of those things. -- Francis Davey
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