27 April, 2011

What I see wrong with the Copyright (Infringing File Sharing) Amendment Act 2011

I will start out by saying IANAL

To have a read of the Act in question: http://www.legislation.govt.nz/act/public/2011/0011/latest/DLM2764312.html

Given the Copyright (Infringing File Sharing) Amendment Act 2011 and the speeches in Parliament it is quite clear that MPs do not have a collective clue about technology. Then there are people like Melissa Lee who spoke in favour of the Act when just the day before on twitter said was listening to a compilation CD put together by a friend, which is copyright infringement and illegal filesharing so is rather hypocritical (I am unaware of any physical CDs or download services that have a license that allows sharing by burning CDs to give to friend. Thus this is copyright infringement. If one does exist and was used I happy to correct this but as of yet there has been no information on this). The Music Industry has a report a Music Piracy site so I highly recommend everyone point out that tweat to them and get her and her friend down for copyright infringement.

I have already discussed in an earlier blog post about this Act covering the symptoms but not hitting the root cause of fixing why people actually file share.

There are many things wrong with this Act which steam from the MPs not having a clue about technology and it doesn't address why people file share and deal with the root cause.

If you have a read of the comments on the bill they mention that they want define file sharing in such a way as not to cover email. Well the definition in the act covers email. The act defines file sharing as "material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and uploading and downloading may, but need not, occur at the same time". Well last time I checked email clients were able to send emails to multiple people and they were able to received emails from multiple people. They are also multi threaded so are capability of sending and receiving simultaneously. A very interesting angle would be to get the MPs done for copyright infringement and have their internet shutdown. What I am thinking is to send an email to an MP with the following as the signature "©2011 I am the copyright holder of this file/email. I only grant permission for this file to be viewed by the people explicitly named in the To and CC fields. Any sharing of this file by electronic, physical, spoken, visually, summarised or other means outside (by the people or machines) the the people explicitly named above will be infringing on my copyright and be considered illegal file sharing. If you would like a license to share this email you can email about obtaining one. Licenses start at NZ$15000 per person". Sending emails to MPs will work well as on the whole they are answer by their staff and not the people explicitly named so thus infringing on the copyright I have over my email. Also spam filters will read the message proper as well. Mail servers only need to read the header information to know where to send they don't need to read the actual body of the email. We would most probably need to from a group which represents our copyright interests in email so we can send notice so the one person doesn't need to send all three notices. Adding the lincense cost to the signature would mean I can hopefully claim the entire amount of the $15k max fine that the tribunal can hand out.

On mere accusation you are guilty. Some liken this to a speeding ticket. But there are great differences Police Officers have gone through Police College so have had to prove their understanding of law and process. With speeding tickets there are clear guidelines about what evidence needs to be gather. The tools used have to be certified and calibrated. The officer is available to present the evidence in court. The Police have procedures around chain of evidence and tampering with evidence. The law does not cover anything around what evidence needs to gather, who can gather the evidence and what qualifications they require and what access you have to see the evidence.The only requirements set out in 122N is that the copyright holder can fill out the infringement notice form correctly, it has nothing to do with evidence or proof.

You are not allowed to bring a lawyer along without special leave from the tribunal, yet what are the chances that the advent for the copyright will be covered by one or more of the following a solicitor, barrister, have a law degree, be part of a legal team, have access to near unlimited legal advice, do these hearings on a regular basis? Given that shouldn't you be able to have legal help at the tribunal? Remember you are guilty on mere accusation until you prove yourself innocent beyond reasonable doubt. This is not a particularly level or fair playing field, especially when it is already sloped such that you are guilty already.

Another aspect would be entrapment. If they are are going Bittorrent for example to prove that you have downloaded the file they will either have to upload to you the whole file and them there selves download the whole file off you. As the part of work has been removed so only the whole work counts. As you are allowed to use part of the work for review or satire. If the entertainment industry is on bit torrent they would be activity saying here come download from me or hey got a copy I could download? The fact they are saying that one could argue entrapment as if they weren't saying I have this file or can I have the file. If a police offer walked down the street offering drugs they couldn't charge you as they were advertising/offering that they had drugs. If they were sitting quietly and you just randomly asked them then that is entrapment. Given how bittorrent everyone is always asking and offering so thus could be considered entrapment.

IPv6 throws an interesting spanner in the works which is not covered by the bill. ISP will allocate end users a block of IP addresses an IP address block is a very different entity and concept from the IP address described in the act. Your computer automagically will assign itself an IP address from that block. That being the case does the copyright holder have to get the computer that automagically assigned itself an IPv6 address to send you a notice? And the ISP in this case should not send you a notice as they had nothing to do with that IP address.

You do have a right to challenge the notice but you have to have it back your ISP within 14 days of when they sent it to. They will deliver the notice by the normal means in which they send you a bill and given the clock starts ticking from when they send it given that post isn't the fastest thing, especially when different cities are involved and that there are weekends and holidays and need time to respond, get legal advice etc it will be very hard to meet this requirement. Given that these notices are part of potential legal procedures I feel these should be served upon the person either in person or by registered mail and the clock starts ticking from when it is served.

When it comes to cutting of people's internet there is nothing covering people using VoIP, as cutting off their internet connection will stop there phone connection and deny them access to calling 111. Committing fraud using a phone does not get you phone turned off, so you can still dial 111 an emergency, so why should this be different? Remember with UFB and Fibre to the home those phone connections will all be VoIP based.

Also more and more government services moving online so you will be denying people access to use government services when you disconnect their internet. Also banking on the whole is done online as well. So instead of cutting off the Internet shouldn't we be looking at making it a basic human right?

When motor vehicles first came out the horse coach building companies lobbied the governments of the time to make driving motor vehicles less attractive by forcing them have some one walk in front waving a red flag, is this law any different really? This act is about companies trying to protect their current business model rather than changing with the times? Given my last blog post there a lot more productive/positive ways to sort this issue out.

It is easy to frame people. Having a read of some research about the DMCA there have been instances of printers being framed by people using spoofed IP addresses. The printers didn't actually do any downloading someone just managed to get the IP address of the printer listed in the list of the person acting on behalf of the copyright holder. Spoofing IP addresses isn't too hard to do so will be interesting to see things like this happen. With my example of email above there are ways of violating this Act without you touching your computer, e.g if you forward your email like national.org.nz autoforwards to the MPs staff at @parliement.govt.nz addresses.

I'm sure there are also more holes in the Act, guess a lawyer really needs to sit down form a full template defence for this I guess. Though just as I was finishing this post up I stumbled across some else's post on Facebook which is well worth a read as well.

No comments: