The government listened!

Written on 24 February 2009, 6 min read.

I was very pleased to wake up this morning to the news that National has delayed the introduction of S92A via an order-in-council. It’s a nice short-term victory, but I’ll save the champagne until the law is fundamentally rewritten.

The most pleasing aspect of the decision is simply that it was made at all. Within two weeks, a small band of protesters were able to harness the power of the Internet to direct international attention and place enough pressure on a Government, whose Prime Minister admitted to not having read the bill prior, that he then took the time to understand the issues and personally announce the delay in implementation of the law. We owe much thanks to the Creative Freedom Foundation for all the effort they put into co-ordinating the protest and ensuring that a single coherent message was presented. Just a little bit of my cynicism and belief that politicians never listen to public opinion outside of election campaigns was chipped away today.

The reason I’m not breaking out the champagne yet is that we’ve only achieved a temporary reprieve in the commencement of the law. While those present at the press conference seem somewhat confident that John Key didn’t like what he found in the law and would have repealed it if given the chance, all that has actually been done is delay it in the hopes of an agreement between the TCF and the “rights holders” (aka big media companies) on how to implement the still fundamentally broken law. The Government has given until late March for that to occur.

To put this into a more global context. My happiness as I took the bus to work after reading about the decision to delay the law was short lived as the front page of the local paper declared that Eircom (Ireland’s equivalent of Telecom) has “voluntarily” agreed to block sites such as The Pirate Bay upon request by the media companies (this comes a week after they also announced an agreement to, again “voluntarily”, implement a 3-strikes S92A style policy). Now, with the biggest ISP in their pocket (so to speak), the media companies have sent threatening letters to the remaining ISPs in the country demanding they implement the same procedure.

To me, this illustrates one of the fundamental problems with S92. The concept that an ISP is liable for the conduct of its users, or for policing where on the Internet users should and shouldn’t be able to connect to does not belong in our laws. Most ISPs already have provision to disconnect customers for illegal activity in their terms and conditions. If an end-user is doing something illegal, that is an issue between the rights holder and the end-user to take up in the courts just like every other sector of society must do when wronged, at which point the existing ISP terms and conditions can be invoked and access terminated.

The big media companies, having decided that it is too expensive/hard/inconvenient to follow standard legal procedures to resolve their grievances are launching multi-pronged attacks to shift the playing field in their favour. In countries like New Zealand, where our politicians yearn for a Free Trade Agreement with America, they use their lobbyists to ensure that S92 style laws are part of the conditions. In other jurisdictions, like Ireland, they use strong-arm, divide and conquer style bully tactics outside of the political and legal process.

I don’t support copyright infringement. I rely on copyright to protect much of the work I place on the Internet, I want strong laws that protect me when my rights have been infringed. I don’t believe that such laws should come at the expense of due process, our legal tradition and the basic principle of fairness! I don’t believe that copyright infringement is such a heinous crime that it demands punishments stronger than those we deliver to paedophiles, stalkers or any other class of criminal who uses the Internet to enable their crimes.

To me, today’s (yesterday’s – depending on your timezone) decision is only the first step in clawing New Zealand back from the dangerous path that the big media companies have been leading our law makers down. From here we need to press on and demonstrate to the Government over the next month that even if the TCF and rights holders are able to come up with some sort of workable code of practice, the law is still fundamentally flawed. It is based on premise that we are guilty by accusation.

Even if guilt were to be proved by a competent legal body (eg. court or copyright tribunal) we don’t need laws placing further liabilites onto ISPs (and remember the definition of ISP under this amendment act includes businesses who provide Internet access to staff, libraries, schools and hospitals) when their existing terms and conditions already prohibit illegal activity.

Finally, and most importantly of all, we need to remember that laws exist to serve all sectors of society. Yes, copyright infringement is against the law and rights holders are reasonable in expecting the law to protect their content and allow them to make a fair profit. On the other side of the fence, average New Zealanders are not being unreasonable in their desire to have media available electronically, on demand and non-inhibited by DRM following a legal purchase. The failure of the media businesses to adequately cater to this change in market demand and usage of technology is obviously a contributing factor to the widespread copyright problems that they are facing today.

Obviously, I’m not condoning copyright infringement simply because the media companies are failing to address demand. Even stupid laws must be obeyed (and the concept of copyright is far from stupid). What I want to see is the Government acknowledging that the problem is not solely with consumers infringing copyright for malicious purposes, and therefore that the solutions do not lie solely in increasing the enforcement and punishments available.

Copyright has always been a balancing act between the rights of content producers and consumers. S92 and the act it is contained within are taking us far too far down the road of catering to big business and their outdated business models with far too little concern for the rights of the individual consumer.

Despite the many submissions made on this act last year when it was first passing through parliament, there was no comprehensive debate on what copyright means and how it should balance the rights of content producers and consumers in our digital century where copying is a zero-cost, zero-thought activity. Without such a debate we’re doomed to continue wasting time arguing over the symptoms of the problem, like S92.

So, I’m saving my champagne for the day when we as a country address these issues and come up with a fair and workable interpretation of what copyright means today.

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