it.gen.nz

That’s the key message I gave to the Commerce Select Committee when I spoke to it today. You don’t get your Internet disconnected if you use it to commit fraud. You don’t get your Internet disconnected if you use it to make threats of violence. Why should copyright infringement, of all things, be such a special offence? And why should it attract a fine of up to $16,000, well above the fines levied on drink-drivers? Are we saying that driving drunk is less of a crime than unlawfully downloading a movie?

I gave the Committee some suggestions on how this law should work – if we have to have it at all. They are all in my submission to the Committee.

Yesterday I saw two popular quotes being disproved: the old saw about a committee having many stomachs and no brain, and the one about law being like sausage because you wouldn’t want to watch either being made.

I went to observe the Commerce Select Committee hearing submissions on the Copyright Amendment (Infringing Filesharing) Bill, which is the law designed to replace the failed S92A of the Copyright Act. I saw the first three submissions, and I’ll write a little about them below.

But first I want to say that the select committee process really does seem to work. It’s a really important part of New Zealand democracy that bills (that is, draft acts of Parliament) get looked at by small teams of MPs who call for public submissions. Anyone can have their say. And the committees generally listen and do their best to balance the interests and concerns of the people submitting. As a nation, we are blessed by having such an open government process.
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There’s a great New Zealand film called “Boy” – it’s a coming of age tale with a uniquely New Zealand flavour to it. It’s been in the cinemas here for three months, and it’s gone down very well. I’m probably not telling you anything you didn’t know, because the film has been well-promoted. I think I saw that it was now the highest-grossing New Zealand movie ever. Well done to Taika Waititi and every one else involved.

That’s what makes it strange that the film industry apparently hasn’t released the film to Australia. There are a *lot* of New Zealanders living there. And it’s not surprising, after all the promotion, that people there want to see the film however they can get it. According to a press release yesterday from the industry, they are indeed getting it, via infringing downloads on the Internet. The film apparently got to the Internet via a member of the industry itself, since the copy uploaded is a “pre-screener” available only within the industry.

What I find odd about this story is that anyone is surprised. Why would they expect New Zealanders and other folk to wait months for a well-promoted hit film? It’s not as though the technology for them to release it in other countries as a paid, legal download doesn’t exist. Why, then, leave a big market like unsatisfied with a legal product when they have alternatives?

The same industry has just claimed that unlawful downloads in New Zealand are costing it $70million. They say things like this all the time, but the truth is that no-one knows and there’s no way to calculate it. The US Government Accounting Office recently published a report saying that all such claims were totally overblown and were no basis for policy.

It’s no accident, of course, that this story blows just as Parliament is considering a Bill to fine people heavily or cut off their Internet for file sharing. The industry has obviously made a calculation about how late in the hype cycle for “Boy” it could go and still get close to the Select Committee hearings, likely to be next month.

This sort of thing has been going on for so long that I’m wondering if it is deliberate. Is it actually cheaper for the film industry to promote a film then not release it in a market, then to go after people who download it and try to seek large fines? Perhaps this is far-fetched, but I’m struggling to see any other reason.

In the meantime, congratulations to Taika Waititi. Let’s hope he gets the chance to get the film distribution industry to see some sense.

Update: Miraz Jordan has written an excellent piece on the same subject – well worth reading as well.

On Tuesday I went to a copyright seminar organized by InternetNZ. The context is that Parliament is consulting on a Bill (a draft piece of legislation) to replace the appalling section 92A of the Copyright Act, which was killed at the last minute in 2009 by the then new National-led government.

Several themes came out from the seminar. The biggest one for me, which was mainly expounded by Nat Torkington, was that there is not a problem that needs to be solved here. Revenues for all the industries that claim to be affected by unlawful downloads are going up very healthily. They claim that their industries are being devastated by the huge volume of copyright infringements, but you would have to say that these claims are not backed up by the evidence. Even so, the so-called content industries are an order of magnitude smaller than the Internet industries they seek to control.

Another theme was the sheer inappropriateness of Internet termination as a penalty for anything. To the government’s credit, it has made termination a last resort which has to be enacted by a court, but even so it’s just not a useful thing to do. You don’t get your Internet connection cut off for far more serious offences. Why should copyright infringement be so special? We don’t cut the road to someone’s house if they have used it to move stolen goods. Just like road access, the Internet is used by everyone in a building, and by others to deliver services to the building.

The Bill sets out a regime of notices that get passed to and fro between a copyright holder and someone accused of copyright infringement, through the ISP concerned. This is mostly aimed at educating the downloader, many of whom don’t realise that they are doing something or illegal, or that they can be caught. This has always been the approach promoted by InternetNZ and it has a lot to commend it, although it was clear at the seminar that there’s still some detail to be worked out in the way it’s set out in the Bill.

Persisting in illegal downloading would lead to the Copyright Tribunal levying a fine. There was a lot of discussion on how much was reasonable. My view is that it should be set at a multiple of what it would cost to get the files legally, say three times the cost on iTunes. We would also need to figure out what to do if the file isn’t available legally in New Zealand but it is elsewhere – I’d probably suggest setting it at the cost in other markets, to provide an incentive for copyright holders to bring things to New Zealand at the same time as everywhere else. As Clare Curran pointed out in her speech in the House on this Bill, the oscar-winning movie Hurt Locker wasn’t made available in this country for months after it was released elsewhere, and not until after it had won its oscar.

The MED officials present were writing furiously for the most part. I’m hopeful that they took a lot of the very sensible points made back to the drafting process. They will probably be advising the Commerce Select Committee which is considering the Bill at the moment.

Talking of which, that committee has called for submissions by 17th June. It’s a really good idea to send them a submission. The process is straightforward – just write down clearly your arguments and what you want the committee to do with the Bill. You can look at this post for ideas. Probably the biggest point to ask the Select Committee for is to remove Internet account termination as any kind of option, because it’s disproportionate and unworkable.

The Princeton online dictionary define disingenuous as: “not straightforward or candid; giving a false appearance of frankness”. I can’t think of a better way to characterize some of the responses to the Commerce Select Committee’s sensible decision not to allow software patents in New Zealand.

I’m delighted with the decision. I’ve written before about the iniquities of software patents. Here are five reasons not to allow them:

1. Patents are private monopolies permitted because they are supposed to encourage innovation. Yet there is no shortage of innovation in software in countries that don’t allow software patents.
2. There is serious harm in software patents because their existence threatens software innovators who can’t tell if some idea is patented and have no way to evaluate a threat from someone who claims a patent over their work.
3. Allowing software patents lead to unintended bad consequences such as the existence of patent trolls – companies which appear to exist just to threaten developers with patent suits.
4. Patents cause a large deadweight cost in legal fees. That’s money which simply disappears from the software economy to the enrichment of patent lawyers.
5. Software patents can’t be awarded fairly. Patents offices and courts seem incapable of making sane decisions about what is and is not an original “invention” in software.

There has been a chorus of approval of the Committee’s decision. But there have also been some people arguing against. Two come to mind:
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The government has asked for submissions about ACTA, the so-called Anti-Counterfeiting Trade Agreement, to be sent in by tomorrow. I’ve written one which you are welcome to read.

ACTA has the potential to change the way we use the Internet and to prevent future innovation on it. It’s hard to say for certain, because the draft texts are secret, To be fair to the New Zealand negotiators, they have (if the leaks are to be believed) argued to reduce ACTA’s impact – its collateral damage – on everyday use of the Internet. And they have asked some specific questions about what they should be trying to negotiate.

I’d like to suggest that as many people as possible send in a submission, even if it’s just “do not on any account agree to anything which would make ISPs liable for something they can’t control”. But ideally, take 20 minutes, review this page, then send your arguments and views to trademarks@med.govt.nz by close of business tomorrow.

Oliver Bell has posted a thought-provoking article called Information is Currency. He and I discussed some of these ideas over a beverage or two one night in Wellington recently. Reading through Oliver’s article, I find some things to agree and others to disagree with, so I’m taking the time here to write a reflective response.

The value of information depends on several things, including its scarcity and its usefulness to the potential end-user. I’m left wondering if there is information that is inherently valueless. I can think of examples of obscure trivia, but someone, somewhere, always seems to care. It can be argued (and Oliver presumably is arguing this) that search engines monetize obscure information by using it to sell eyeballs to advertisers.

Of course, search engines don’t sell the information itself. They sell a way of discovering it. The information itself has generally already been published for free. The information has value based on the network effect, i.e. that its a published in a standard form using the World Wide Web. The search engines are very much part of this system that imputes value to freely-published information.

So, then, the monetary value of freely-published information derives as much from the great mass of other web sites, from the search engines and from the Internet itself as it does from the information.

However, I’m interested as much in what we can do with information in bulk as I am in in assigning a numerical value to individual chunks. If I write a piece of software, say, is its optimal value realized if I sell licenses to use it or if I simply publish it for others to use as they see fit without monetary recompense? The answer to that question depends partly on who recognizes the monetary value. If we look at value to the community of computer users as a whole, allowing anyone to use the software will have the greatest value. If I look at it in terms of personal revenue-maximization for that piece of software, I would presumably retain the source code as a secret and sell licences to use it on the basis of my perception of each user’s ability to pay. This applies to any information goods, i.e. things that can be copied without using up physical resources.

There are two components to value of information in the Internet age – value derived from maintaining its scarcity and value derived from making it available. Both are highly dependent on usefulness. The former is usually captured by the publisher, the latter accrues to the community.

There may, as Oliver suggests, one day be a market for all kinds of personal information. The individual worth of each piece is likely to be very low. The worth to the community as a whole of pooling its information is likely to represent the major part of its technology and its culture.

As is now well-known, the next round of negotiations for the controversial international treaty ACTA will take place here in Wellington on 12th-16th of April. Representatives of 13 countries and the European Commission will be in our city for that week.

To the ACTA negotiators: I bid you welcome. I hope you enjoy our lovely city (hilarious video), and that you take a few days or weeks to explore some more of our beautiful country. You will find most New Zealanders to be warm and friendly people who love to show New Zealand to visitors.

I’ve railed against many aspects of ACTA before – especially the secrecy around it – but that doesn’t change my desire as a proud New Zealander to welcome guests to our country. I’m sure all New Zealanders involved in the wider ACTA debate will agree with me.

It’s my last time on Radio New Zealand National for a while, and I thought I’d use it to address some more a philosophical question than I often do. I’ve written a separate post with my ideas below.

I’ll be on air after the 11am news. You can listen live, or soon afterwards you will be able to pull the podcast or download the audio as ogg or mp3.

The Internet is an unmediated form of communication between humans all around the planet. It was designed that way and so far it has stayed that way. It’s different from the telephone, which allows targeted one to one communications, and from broadcasting which is one to many, although it does provide those as well. Through blogging, twitter, even email lists, the Internet has allowed us to build many-to-many communications systems. That’s a first.

There’s no doubt in my mind that the Internet is the greatest engine of prosperity since since, say, the telephone or even since mass transportation. It allows us all to interact with people and business around the world without using up fossil fuels and personal resources in travel. It provides businesses with a customer communications channel connected directly to their back-end systems. On the Internet, life is good. And, as I have said on numerous occasions, it only got that way because the Internet is an open conduit for anything people can think of.

It has been recognized by lawmakers for years that openness is the key to the Internet’s usefulness. But, increasingly, that is coming to an end. The Chinese government routinely censors its domestic Internet and forces all Internet traffic entering and leaving the country through a giant gateway it controls. The US allows private companies to remove material placed on the Internet by third parties on accusation of copyright infringement. Australia looks likely to implement a national Internet filter in the name of pornography suppression. The UK is considering a “Digital Economy Bill” which would force Internet disconnections and filter access to websites. Even the New Zealand government is looking at a limited filtering system to combat child pornography.

All this brings me to my point: Can we, humankind, actually stand an open communications medium? One that lets all of us talk to all of us? Along with the huge list of economic and social benefits that brings? Observing the actions of government world wide, I’d have to answer “no”.

It appears that the Internet is just too open and too useful for humanity to come to terms with. Since the Internet is just a communications tool, this means that we, as a species, can’t tolerate open communications between all our members. That’s why I question whether the Internet is just too good for us, whether we deserve it at all.

But then, what can you expect from a species that can’t organize itself to operate in an environment of finite resources? There is no functioning mechanism for us to deal with global environment destruction or fossil fuel exhaustion, for instance. You don’t have to accept anthropogenic climate change to agree that we don’t have a way of dealing with it.

So, then, we are a deeply flawed race careering off a cliff of our own making. Does that mean we shouldn’t fight – that we should just eat, drink and be merry for tomorrow we die? I don’t think so. For me, each of us who recognizes the problems should act as best we can to hold a mirror to human activities. That means calling governments and industries when they try to hold progress to ransom. It means arguing for cooperative approaches to dealing issues that face us. It means not hiding our heads in the sand about limited resources.

I certainly don’t have all the answers. But until we at least accept the questions, neither will any of us.

How we deal with the Internet and its ability for us all to communicate will the question I posed in the title: is the Internet too good for us?