01 May, 2011

My draft for my feedback on MED's request for feedback on the Copyright (Infringing File Sharing) Amendment Act discussion document

This is my draft for my feedback on MED's request for feedback on the Copyright (Infringing File Sharing) Amendment Act discussion document. I would be interested to hear what other things people are writing in theirs? Please feel free to use the ideas out of mine. I would prefer people not to copy and paste and with things like this individual submissions tend to carry more weight than copy pasted submissions as it shows more time spent, thought, actual reading and that it is truly your views not someone else's.

Don't criticise the law here as chances are they will just disregard your points. We can attack the Act directly separately. In response to this discussion paper we need to assume even given it's shortcomings we need to make it work the best we can and ensure the bar of accusation is as high and as fair to end users as possible.

Hi,

I am writing in concern of Copyright (Infringing File Sharing) Amendment Act - discussion document http://www.med.govt.nz/templates/MultipageDocumentTOC____45923.aspx

Q1 If regulations were not made, are the possible implications noted above correct, and why?
Yes.

Q2 Are there any other possible implications if regulations are not made? Why do these arise?
If there no regulations there will be no detail about the evidence needed and the qualifications the people doing the capture require. If there is not a minimum bar for evidence set there is a chance people will be accused when the the evidence isn't really there to justify the accusations. This will also means that a notice from one Copyright Holder meets the same requirements as another Copyright Holder. Without fees set ISPs may have to increase their fees to cover it or go out of business which is not what we want. If there Copyright Holders don't have a fee imposed upon them they may just send out notices for the sake of sending out notices.

Q3 What benefits, if any, might arise from not providing regulations? Why do these arise?
I see none. I see having no regulations as very dangerous to ISPs and End Users.

Q4. Should the suggested requirements be included in regulations? Should there be any other information requirements and why?
For a start when it says once to the ISP it should also be given to the end user every time. There also needs to be proof a breach has happen. To prove a breach has happen:
* There needs a be a Network Dump of all network traffic from the Copyright Holder's end showing that the full work is in possession of the accused. This will show that Copyright Holder is sure that the user actually has the file and is simply not just looking for it. Remember it is the possession and sharing of full work that is at issue, not the act of wanting or looking for the work. It needs to be the full work as:
** The words part of work have been removed
** If you do not have 100% of the work it will be corrupted and thus not consumable/playable
** Part of a work may be consider fair use for review/satire
* There have been examples in the US where the Entertainment industry has sent notices to Printers which are not capable of file sharing. Obviously someone spoof the IP address into a torrent list and they just sent a notice without checking that the IP was actually fire sharing. http://dmca.cs.washington.edu/faq.html#q10 If there is a Network Dump showing the the whole file has been transferred this will provide evidence that it is not someone trying to spoof an IP and frame you but the IP address in question is actually sharing the content.
* The file(s) reconstructed from the Network Dump to indicate that the Network Dump does contain the entire work and in a non corrupt consumable state
* The Network Dump and File should not have any encryption, so the user and the tribunal can examine to check the evidence.
* Extracting the file out of the network dump will show that the file is real and not a fake file. Fake files aren't copyrighted works by that copyright holder so they have now ground to go after that person.
** For example you may download a video called transformers.avi you maybe accused of downloading the Transformers movie. The copyright holder needs to show that this is the Transformers movie and not a home video of someone's kids playing with some transformers toys for example.
* There needs to be a chain of evidence and proof all the evidence is accurate and has not been tampered with. This chain of evidence and non tampering is very import as Nikon Cameras have recently had their non tamper system broken so in this instance you can have forge photos and pass them off as legit photos in evidence. This system needs to ensure that all evidence is legit and non tampered with. http://blog.crackpassword.com/2011/04/nikon-image-authentication-system-compromised/
* Details on the timestamps need to be provided and there needs to be evidence that they are getting a secure/authenticated  NTP (https://secure.wikimedia.org/wikipedia/en/wiki/Network_Time_Protocol) feed. This will ensure all time are accurate and from a good source of time. The authenticated NTP feed can provide auditability that the time is correct. This will allow for logs, Network Dump and the like to be compared between locations and know that the times will line up fully. http://www.ntp.org/ntpfaq/NTP-s-algo-crypt.htm
* In summary there needs to be a minimum level of evidence to prove beyond reasonable doubt that a breach has actually occurred. It should be up to the copyright holder to provide the evidence beyond reasonable doubt, especially since you are guilty on their mere accusation.
* Evidence identifying the person needs to go beyond just an IP address as overseas judges are not recognising that an IP Address links to a person. This being the case the Copyright Holder should need to provide the ISP with more than just an IP as identification they need to provide evidence that identifies the person well enough that can rule out neighbours, hackers, botnets, etc. http://torrentfreak.com/ip-address-not-a-person-bittorrent-case-judge-says-110503/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Torrentfreak+%28Torrentfreak%29 http://arstechnica.com/tech-policy/news/2011/05/after-botched-child-porn-raid-judge-sees-the-light-on-ip-addresses.ars?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+arstechnica%2Findex+%28Ars+Technica+-+Featured+Content%29
* The accused should also be provided with a flow chart indicating where they currently are in the process and what avenues are open to them.
* This evidence needs to be provided for every copyright work in question.
* The Copyright should also provide information about how the person could have obtained the work in question at the time in question legally and the cost of the work at the time the alleged offence took place. It should be for legal equal or higher quality and available on the Operating System that the user is using e.g. Linux, Android, Windows, Mac etc. It doesn't really count of the users uses Linux and the only legal way is via iTunes for example which only works on Windows and Mac and playable only on iod and iPhone devices.


Q5 Which (if any) requirements should not be included and why?
As mentioned where it says to the ISP once it should also be sent to the accused every time.

Q6 What are the costs associated with gathering and storing the information that would be required? How are these costs calculated?
* For the ISP:
** They will have to be storing more information they currently do for particular retention periods:
*** There are costs in setting this up
*** There are costs to run this
*** There needs to be guidelines around access to this data and with want warrant and the privacy commissioner needs to be involved here.
** There will be costs in processing of these accusations
** There are market rates for people and systems in this case
* The the copyright holder
** They will have to pay people to do the monitoring, evidence gather and making the accusations.

Q7 Is any other information regarding alleged infringements necessary to allow internet account holders to properly understand the allegations being made?
* As mentioned in Q4 there needs to be all the evidence to prove beyond reasonable doubt that a breach has occurred and that the evidence has not been tampered with. A flow chart of the process and where they are in process and what options they have is important.

Q8 Which of the above is your preferred option, and why?
* I prefer Option 2 as it will mean all people will get the same information independent of Copyright Holder and/or ISP involved. This should included all the information provided to the ISP along with all the evidence and all additional information in Option 1

Q9 Are the requirements in option one above adequate and why? What other requirements should be included, and why?
No the information provided to the ISP by the Copyright Holder also needs to passed on along with all the evidence, with a chain of custody, so the accused can be sure that a breach has actually happened.

Q10 Are the requirements in option one above adequate and why? What other requirements should be included, and why?
No Opinion

Q11 What information should be included with notices to ensure account holders are properly informed about the regime, and about copyright issues relating to file sharing or otherwise?
* Big one for me is evidence to proof beyond reasonable doubt that a breach has occurred and this needs to be provide to the accused in full and protected against tampering
* This should also be served on the person either in person or by registered mail. This is the start of legal proceedings so should be served on the person so all parties know that is has been received by the accused. And not sent to the wrong address or not read because they are on holiday or something.
* Also details on how they could have obtained the work legally on the day in question and the costs involved and how to do it on Linux, Windows and Mac.

Q12 What functions should an IPAP be able to recover costs for under clause 10(eh). Why? In answering this question you may wish to comment on the distinction between ongoing and set up costs.
* All the costs set and ongoing should be 100% payable by the copyright holder as it is not the ISPs core business of providing internet service to their customers. Setting this system up and running it should not lessen the service quality of the connection or support to the end user in anyway or involve a cost increase. As this means all users will be penalised for Copyright infringement when they are not personally involved.
* The recovery of costs will stop the copyright holder abusing the system

Q13-16
I'm not a ISP or Copyright Holder

Q17 Is this your preferred option and why?
Yes. Every ISP is different and will have different costs for implementing the system and staffing costs going forward. And given different sizes of ISPs scale will also affect costs. And different notices require different amount of efforts.

Q18 What potential impacts would result if a fee was not specified, and why would these arise?
That the copyrights holders might not pay the ISPs enough and they will have to take money from other areas of the business or shut down and this would punish users unlinked the the allegations.

Q19 Is this your preferred option and why?
No option 1 is my preference

Q20 Taking into account the lower range of fees outlined in para 28, what is an appropriate notice fee under this option?
Not an ISP so don't know the actual costs involved

Q21 How do you calculate this fee?
A mixture of operating costs. And formula to take into account the set up costs balanced across accusations and time for deprecation of the system.

Q22 Not in discussion document

Q23 What are the potential implications of calculating the fee under this option, and why do they arise?
That they will suit the average ISP and some ISP will make a profit while other will make a lost. There needs to be a yearly review to cover inflation and other changes that may affect price.

Q24 Is this your preferred option and why?
No option 1 is my preference

Q25 Taking into account the lower range of fee above in para 28, what is an appropriate notice fee for each notice (detection, warning and enforcement), under this option?
Not an ISP so don't know the actual costs involved

Q26 How do you calculate this fee?
A mixture of operating costs per notice type. And formula to take into account the set up costs balanced across accusations and time for deprecation of the system.

Q27 What are the potential implications of calculating the fee under this option, and why do they arise?
That they will suit the average ISP and some ISP will make a profit while other will make a lost. There needs to be a yearly review to cover inflation and other changes that may affect price.

Q28 Is this your preferred option and why?
No option 1 is my preference

Q29 Taking into account the lower range of fee outlined in para 28, what is an appropriate notice fee, and appropriate IP address fee for this option?
Not an ISP so don't know the actual costs involved

Q30 How do you calculate this fee?
A mixture of operating costs. And formula to take into account the set up costs balanced across accusations and time for deprecation of the system.

Q31 What are the potential implications of calculating the fee under this option, and why do they arise?
That they will suit the average ISP and some ISP will make a profit while other will make a lost. There needs to be a yearly review to cover inflation and other changes that may affect price.

Q32 Is this your preferred option and why?
100% on the copyright holder. The ISPs get money from there customers to cover the connection, data and customer support. This is a new service that ISPs will have to provide and Copyright Holders will be using this new service so they should be pay 100%

Q33 If so, what is an appropriate ratio?
100% for the copyright holder as mentioned in my answer to Q32

Q34 How do you calculate this ratio?
100% on the Copyright Holder

Q35 What are the potential implications of the sharing of costs under this option, and why do they arise?
That ISP customers will have to subsidise the copyright holders accusations to other users and this is not fair so hence 100% on the copyright holder.

Q36 Do you consider the Tribunal should have discretion to calculate the amount of an award and why? Should the Tribunal have discretion to include an additional element that acts as a deterrent to future infringing (a deterrent element)? Why?
* It should be based on the cheapest instance of that product in NZ market at the time infringing happen. If it was not in NZ market in the time the cost should be $0 as an incentive to the Entertainment Industry to provide the content legally in NZ in a timely manner. As this will help reduce the reasons people actually file share. I discuss this further here: http://mytwocents.karit.geek.nz/2011/04/fixing-root-cause-of-file-sharing.html
* It should focus solely on the works in question. In criminal trials previous convictions and future charges can not be provided as evidence for the Jury or taken into account by judges during sentencing so that shouldn't happen here either.
* The tribunal should only look at the uploading and downloading that the copyright holder has a network dump for as, assuming it hasn't been tampered with, it is the only evidence of what file sharing has actually taken place. Anything else is just speculation and not hard fact.
* If the user can not prove their innocent beyond reasonable doubt "court costs" will be applicable. If the user does prove they are innocent beyond reasonable doubt the Copyright Holder should be liable for court costs.
* If a work is currently not legally available for sale in NZ in form that is consumable by the user in question (i.e. on iTunes is useless for someone who runs Linux on their desktop and Android on their phone) it has no value and no sales have been lost so there is no compensation needed for this situation.

Q37 Are the considerations set out above appropriate for the Tribunal to consider and why?
* No they are creating a value for works that aren't available for sale in NZ at the time the offence occurred. This should be set to $0.

Q38 Should the Tribunal consider other factors and why?
* It should be based on the cheapest instance of that product in NZ market at the time infringing happen. If it was not in NZ market in the time the cost should be $0 as an incentive to the Entertainment Industry to provide the content legally in NZ in a timely manner. As this will help reduce the reasons people actually file share. I discuss this further here: http://mytwocents.karit.geek.nz/2011/04/fixing-root-cause-of-file-sharing.html
* The tribunal should only look at the uploading and downloading that the copyright holder has a network dump for as, assuming it hasn't been tampered with, it is the only evidence of what file sharing has actually taken place. Anything else is just speculation and not hard fact. If the copyright holder can not provide dumps to show that the user had 100% of the file how can one prove that an offence actually happened?
* If the Copyright Holder Educated the user about how they could have legally obtain the work in NZ on a varity of operating systems e.g. Linux, Android, Windows, Mac.

Q39 What are the potential implications of the Tribunal calculating the award via the method described under this option? Why do these arise?
That it takes into accounts works that are not legally obtainable in NZ and in a form that is consumable by the person in question. As it should only look at works that are legally obtainable in NZ and consumable by the person in question, in that if the user runs Linux or Android and the work is only on iTunes they have no way of consuming that work because iTunes is only on Windows, Mac and iOS.

Q40 Is this your preferred option and why?
If the multiple is less than or equal to one of the retail value of legally obtaining in NZ market and consumable by the user in question it is ok on date said offence took place. If the multiplier is greater than one prefer the previous option. If there is network dump evidence that they received or gave more than one copy (in whole unit increments (seeing Bill removed part of work)) then a multiplier equal to the number of copies maybe applied

Q41-50 Not in discussion document

Q51 If you think regulations should prescribe a multiplier of market value, or a prescribed set of sums in addition to the compensation element of an award, what should the multiplier or sums be, and why?
Is should be the retail value of legally obtaining in NZ market and consumable by the user in question it is ok on date said offence took place. A multiplier can be applied to number of whole copies shared and with evidence captured in a network dump as evidence and proof multiple copies were shared.

Q52 What are the potential impacts of the Tribunal calculating the award via the method described under this option? Why do these impacts arise?
If this is greater than the retail value of legally obtaining in NZ market and consumable by the user in question it is ok on date said offence took place you punishing the person more than they actually did. The Entertainment Industry may say well they shared it. Well in that case accused everyone of sharing and don't double dip i.e. get the retail value of legally obtaining in NZ market and consumable by the user in question it is ok on date said offence took place from the uploader and downloader.

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