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The New Zealand Institute has written a series of think pieces on what it calls the “weightless economy” – it means using broadband to ship ideas around the world rather than ships to send dead trees and animal carcasses. They aren’t the only people to have observed what an opportunity the Internet offers the New Zealand economy, more than most countries because of our remoteness, but they are very eloquent and couch it all in language that economists understand.

You might think that would be welcome by bureaucrats and politicians alike. Non-polluting, renewable, no food-miles, etc. And both major parties have promised to spend up in varying amount to improve New Zealand’s Internet. That makes it all the more surprising that the government is apparently trying to kill the Internet in New Zealand off altogether. That’s right – S92A of the Copyright Act, which ministers have just told us to “like or lump” risks chilling new services on the Internet so they never get started, and driving the companies that distribute Internet out of existence. (Most of them are barely profitable now; it’s the sexy service companies like Google that make the big bucks. Go figure.)

Most of us agree that copyright needs some kind of protection in the digital world. Killing the Net to achieve it is too high a price. That’s what I talked about on Radio New Zealand National today – read on for my notes or download the audio as ogg or mp3.

Q: The Internet under threat! It looks pretty healthy to me.

A: I’m appalled at the government’s attitude to people’s access to the Internet. You remember the other week we talked about a little-known amendment to the Copyright Act that went in this year, along with a mixed bag of other stuff. The thing that’s got me really worked up, though, is the provision in the act that says that Internet Service Providers have to cut off your Internet access if you are accused – that’s accused, not convicted – of unlawfully infringing someone’s copyright. And a group of us met Ministers last week to talk about out concerns. I have to say that we were given short shrift.

Q: You don’t think copyright should be protected?

A: That’s not what I think at all – I am absolutely not advocating that people go out and download other people’s copyrighted materials.

Q: Glad we’ve got that straight. Why does this matter, then?

A: Three reasons:

Firstly, Internet Service Providers have no way of knowing whether what you are doing is copyright violation or not, yet the law makes them liable if they don’t cut off your net. They face legal liability from copyright holders if they don’t cut you off and legal liability from their customers if they do.

Second reason: Natural justice – there is no justice at all in losing your Internet connection on the basis of an accusation. We put that the to the Minister, Judith Tizard at a meeting this week and she told us that the music and movie companies had assured her that they wouldn’t falsely accuse people.

Q: You don’t believe that?

A: Why would they behave differently in this country from everywhere else? In the US, for instance, they have a habit of suing people who don’t have computers, or who are dead, or who are children. In one case a record company which wrongly sued someone is now bitterly resisting, in court, having costs assessed against them.

The other reason that this is wrong is that it’s disproportionate. Cutting off an Internet connection is very high penalty for many people. It could destroy a business for instance. When we met the Minister the other day about this we asked her about it and she said tough. One of our number asked what if, say, Middlemore Hospital had three overseas doctors who didn’t understand New Zealand law and were accused by a music company of having downloaded copyright material – would the hospital’s Internet connection be shut down? The Minister yes, it would, and more fool the hospital for allowing it. Yes, that’s shutting down a hospital for an accusation of something that’s not even a crime.

Q: What do other countries do about the problem of protecting copyrights on the Internet?

A: They mostly have some kind of law to address the rights of copyright holders, but nothing like as draconian as this. I don’t know anywhere where the rights holders don’t have to prove their case. In the EU, for example, the EU has prevented member governments from implementing laws which allow Internet access to be cut off on the basis of accusation. Everywhere else the companies have to prove their case. Here, on the basis of this legislation, any Internet-dependent business in the country could be shut down on the basis of an accusation which never has to be substantiated. Is this an area New Zealand wants to be a world leader in?

Q: Is this law in place already?

A: Not as such – its been passed into law by Parliament but it needs an order in council – basically, a Cabinet minute, to make it active. And, a couple of weeks ago, just after the election campaign started – funny, that – the government announced a four month delay to its implementation. So, we all have four months – over a general election and a Christmas holiday period, for the Internet providers to agree with the music and movie companies how this is going to work.

Q: What if they don’t agree?

A: Yes, well it’s hard to imagine the music or movie companies agreeing to anything because the law as written is heavily in their favour against the interests of the common Internet user. So, why would they agree to anything?

Q: And what happens if they don’t?

A: Then Internet service providers – which are mostly running a pretty slim margin because it’s a very competitive business – will find themselves in an invidious position. If a copyright holder makes an accusation of copyright infringement against one of their customers they face legal risk whatever they do.

Q: Surely they should be able to tell whether their customers are really infringing copyright?

A: No, it’s not obvious whether many things are infringing. Parody and satire for instance are in many jurisdictions regarded as OK but not everywhere. You need lawyers and often a court decision to be certain. It’s so unclear here that government is saying its going introduce yet another law to clarify that particular aspect of copyright. Then we get to the whole problem that, with encryption, that’s codes, there’s literally no way for ISPs to tell what you are downloading. So ISPs are in a dreadful position, businesses that rely on Internet are in a dreadful position, universities and hospitals are in a dreadful position, and individual users can have the Internet accounts terminated on a whim.

Q: How has the government managed to pass a law like this?

A: It’s bizarre, isn’t it! They were certainly told about this again and again. It’s just so wrong headed you have to wonder what the Minister was thinking. She compared this with child porn when I met her – although what copyright infringement has to do with child abuse I have no idea. Perhaps she needs to get her sense of perspective back.

A few years ago – some listeners will probably remember this – there was an attempt to introduce legislation to force ISPs to police their users in respect on pornography. It was called the Technology and Crimes Amendment Bill. It would also have put ISPs in an impossible position just like this law does. The then minister, Maurice Williamson, was appalled, and to its credit the government of the day agreed to kill that bill. I am just amazed that this government, which claims to see the benefits of the Internet, has come out and done something so stupid and so inimical to it.

Q: What will happen if there’s a change in government?

A: Who knows? The Nats voted for this, although when asked why Maurice Williamson said he didn’t know. Chris Finlayson, their intellectual property spokesman, is on the record as wanting to fix copyright. That’s a huge job, and while I applaud that, this is a problem which needs to be fixed far faster.

And other parties have different policies again. The Greens do appear to get this issue – at the ICT debate on TV a few weeks ago Metiria Turei showed that she had at least head of these issues and made some pretty sane points.

Q: What needs to happen?

A: We need to get s92a out of the copyright act now if we don’t want to find that our Internet is controlled a by a few companies who regard it as a threat. Back when the motor car was introduced, the cart manufacturers persuaded the government to put through a law requiring a man with red flag to walk in front of every car. That’s what we are seeing here. New Zealand will be a laughing stock, and our fall from our position on the 90s when we were on of the top five nations on the Internet will be complete. The Internet offers us so much in the way of economic and social transformation, we might as well give up on it if we think this little of it.

Links

Record industry suing the wrong people.

A meeting with Ministers about cutting off your Internet