An interesting blog post at Amused Cynicism

on why politicians don’t get the Internet. To be fair this is less of an issue in New Zealand. We have a fair few MPs who do get the Internet, but this is far from universal. Some quotes:

Politicians sometimes say (and do) things that internet users think are both clueless and immoral. Why is this? Politicians want people to vote for them, so they don’t deliberately come across as stupid and nasty. Furthermore, they know the internet is important to the economy, and don’t deliberately want to sabotage it.

So why do politicians so often say things that give off the wrong tone? I think there are three systemic reasons for this:

• They are not digital natives
• They don’t understand the technology
• The way the internet works doesn’t fit in with their worldview

Talking on the issue of potential disconnection for copyright infringement:

And that’s why the threat to disconnect internet users is seen as so bad, so disproportionate: it’s banning people from talking to their friends, from socialising, from being part of the communities which have meaning in their lives and through which their lives have meaning. If someone wants to take away my internet, they threaten to take away a large part of my identity. I’ll fight them to the end, and because there are millions of people like me, and we’re growing stronger every day, we’ll win.

The US is demanding termination for copyright infringement allegations in the TPP negotiations. The Government so far is saying no to this, which is good. If they change their position at some stage, there will be considerable political risk in doing so. As the post says, Internet natives take disconnection as the state trying to take away their identity, and will fight it all the way. I would not want to be a Government that is on the wrong side of that issue.

Then on the issue of world-view:

Everyone attempts to understand the world through the filter of the categories they understand. What if the nature of the internet doesn’t fit in with someone’s pre-defined categories? Then they will struggle to understand it. So, what is the nature of the internet?

Firstly, No-one owns it, though different people own bits of it. The internet isn’t a thing, it’s a protocol — to be precise, the tcp/ip suite of protocols — an agreement that certain patterns of bits mean certain things, and because everyone keeps that agreement, the internet works.

Secondly, everyone can use it, so once you’re connected to it, you’re connected to all of it and can use all of it.

Thirdly, anyone can improve it. Tim Berners-Lee didn’t need to get anyone’s permission to create and deploy the world wide web. Nor did Bram Cohen need anyone’s permission to create BitTorrent.

How does this fit in with how politicians see the world? Well:

• No-one owns it: governments are defined by what they control.
• Everyone can use it: in government, making laws means imposing restrictions on people.
• Anyone can improve it: Business and government cherish authorized roles. It’s the job of only certain people to do certain things, to make the right changes.

As I said things are not too bad in New Zealand. But we should not be complacent.

Arstechnica reports:

You know those FBI warning messages that appear at the beginning of DVDs and Blu-ray discs? They’re getting an upgrade—and they’re multiplying.

The US government yesterday rolled out not one but two copyright notices, one to “warn” and one to “educate.” Six major movie studios will begin using the new notices this week. …

The second notice shows the logo for the National Intellectual Property Rights Coordination Center, which involves 20 different US government agencies. It features one extremely angry eagle who would probably pluck your eyeballs from your sockets if he could get those talons near you. ”Piracy is not a victimless crime,” says the notice. “For more information on how digital theft harms the economy, please visit www.iprcenter.gov.”

Oh God. There are few things more frustrating than sitting through those inane notices on the legal DVDs you have purchased. All they do is encourage you to acquire versions without the stupid notices – ie torrented files. They are the most counter-productive messages I know if, and now they are doubling them in length!

Stuff reports:

Alleged internet pirate Kim Dotcom may be able to breathe a little easier after a landmark Australian High Court ruling that found internet provider iiNet was not responsible for illegal file-sharing by its users.

However, a law professor has warned millions of dollars of assets seized by police may never be returned to Dotcom, even if a bid to extradite him to the United States fails.

The chief executive of iiNet, Michael Malone, said the unanimous ruling by five judges, who dismissed an appeal by Hollywood studios that iiNet was a party to internet piracy by its customers, had ended three years of legal argument costing A$9 million (NZ$11.4m).

The Australian Financial Review said it was a test case of “global significance”.

Auckland lawyer Rick Shera said the ruling would be influential in New Zealand and was a positive development for Megaupload founder Dotcom and his co-accused.

“At its heart, Megaupload is about the responsibility of an online service provider for its users’ activity and that was exactly the core issue in the iiNet trial,” he said. While evidence in the two cases as to whether the companies encouraged piracy was not the same, Dotcom’s was a criminal prosecution, so the burden of proof needed to be stronger, he said.

However, Otago University law professor Andrew Geddis was cautious of drawing parallels between the cases, noting that while internet providers such as iiNet were essentially only conduits for file sharing, Megaupload hosted files on its servers.

The outcome of the Australian court is excellent. It is worth noting that the MPAA had lost the original case, the appeal and now this second appeal.

However like Prof Geddis I would be cautious about thinking what impact it may have on the Meagupload case, as there is a difference between merely providing access to the Internet, and providing a file upload and download service.

Tom Pullar-Strecker at Stuff reports:

A TelstraClear customer may be the first to be hauled in front of the Copyright Tribunal and fined for internet piracy under the controversial “three strikes” copyright regime that came into effect in September.

TelstraClear spokesman Gary Bowering said it issued a third and final “enforcement” notice to a customer on Thursday for allegedly pirating music, after being instructed to do so by the Recording Industry Association of New Zealand.

Bowering said TelstraClear could not comment further as the matter was now out of its hands.

The alleged pirate will have until Thursday week to dispute the enforcement notice.

If they fail to do so, or if Rianz rejects their challenge, the association will then have 35 days in which to decide whether to ask the Copyright Tribunal to take action.

The tribunal can impose a fine of up to $15,000 for serious, flagrant offences under the law, which was designed to discourage people from pirating music and movies using file-sharing services.

However, the Government signalled in a Cabinet paper last year that in some cases it might be sufficient punishment for offenders to reimburse rights holders for the $275 in fees they will have had to incur bringing a case to the tribunal. It has no powers to cut off people’s internet access.

I actually hope it does go to the tribunal, so we can actually see how significant the alleged infringing was, and get some idea of what the Copyright Tribunal considers proof, and a legitimate defence if one is offered. It is possible no defence will be offered. We will also learn what level of fines will probably be applied in future for similar cases.

Unlike Rianz, the New Zealand Federation Against Copyright Theft (NZfact), which is owned by the United States Motion Picture Association and represents movie studios, has decided against asking internet providers to issue infringement notices to customers on behalf of its members.

That is because of the $25 fee they must pay internet providers to issue each notice. There is an additional $200 fee to bring a case before the tribunal.

Those fees are now being reviewed by the Economic Development Ministry. NZfact chief executive Tony Eaton said they should be done away with.

Telecommunications Users Association chief executive Paul Brislen said it was “vitally important” people lobbied the ministry not to reduce the fees.

With all respect MPAA are being absolutely greedy here, and their greed should not be rewarded.

Already they have the taxpayers paying for the vast majority of the costs of the Copyright Tribunal. On top of this they have ISPs subsidising around 50% of every infringement notice, charging only $25 of an estimated $45 cost.

But the greedy MPAA thinks that they should pay nothing and the ISPs (who are innocent conduits) should pay everything. If the Government should go along with this reasoning, then it would be a disaster. The MPAA could spam ISPs with tens of thousands of alleged infringements.

The MPAA claims that piracy costs them billions of dollars, yet they are too stingy to pay a $25 fee to partially cover the ISP costs. Well if they think that is rational, good on them.

In fact what I suspect is that the MPAA has refused to file any infringements to try and pressure the Government into scrapping or reducing the fee. If the Government maintains the fee at its current level, then I suspect they will start using the system which has been set up for *their* benefit as the RIAA has.

Got e-mailed this, which is sort of funny.

And no I do not condone “theft” when the victim is rich. In fact I have always said that people should pay for copyrighted material when that avenue is open to them.

But there is a useful point that the current business models are very much geared towards the studios, and making their owners rich. It is the studios, rather than the artists, which are resisting moving to business models that are fit for today.

Luckily we are slowly moving towards studios using the Internet as a sales channel, rather than as the enemy.

The Herald reports:

A new era in film and television-watching is upon us, with Australian streaming service Quickflix available in New Zealand today. …

Quickflix allows customers to stream movies and TV shows on their computer, television and via devices such as PS3 gaming consoles.

The company also offers a pay-per-view service for the latest releases which will be available around the same time as DVD releases.

This is a step in the right direction. Ultimately I want people to be able to buy a movie within days of it hitting the big screens. You might charge more for it during that time, but only by catering to demand, by allowing people to buy content when they want it, to watch when they want to, will you reduce piracy.

* Unlimited movies and TV shows for $9.99 per month (limited time). Normally $16.99 per month.
* Pay-per-view new release films cost $6.99. Available around the same time as DVD release date.
* Around 650 films and “hundreds of hours” of BBC TV content will be available initially. However, it will be adding around 350 to 400 new films and about 400 hours of new television every month for the subscription service.
* Watch on internet-connected devices, including home computers, Sony Bravia TVs, Blu-ray players and PS3. In coming months other devices will stream Quickflix, including Apple iPhones and iPads in May.
* Zero-rated broadband access with Orcon, easing the pressure on the user’s monthly data cap. Other ISPs, including Slingshot, expected to announce their own plans soon.

That pricing is not too bad.

Gareth Hughes blog at Frog Blog:

With the Trans-Pacific Partnership Agreement negotiations having just occurred in Melbourne I’m urging the Government not to surrender New Zealand’s sovereignty on copyright so we can keep enjoying Kiwi Music in the public domain.

Under a leaked draft of the TPPA, copyright length is to be extended from 50 to ‘…not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram,’ meaning music and recordings set to enter the public domain in New Zealand will take decades longer.

An iconic song that would be impacted by the copyright extension is the Fourmyula’s “Nature”which was voted the best New Zealand song ever written. Produced in 1969 this song should enter the public domain in 2020 to be remixed, re-played, and re-imagined however under proposed TPPA rules Kiwis would have to wait to 2065. Likewise Ray Columbus’s “She’s a Mod,” released in June 1964 wouldn’t enter the public domain till 2059.

The extension in the term of copyright would mean no new works would enter the public domain in New Zealand until at least the late 2050s negatively impacting access to New Zealand culture and history. In particular ‘orphan works’ that aren’t available commercially would just not be accessible.

Kiwi listeners and artists will miss out on freely accessing Kiwi classics until the 2060s not benefiting the musicians who would have likely died decade’s prior, but benefitting mostly very profitable businesses who own the copyright. Copyright is about finding a balance and I welcome a discussion – should it be 40, 50, 60 years etc. but I think 95 years is extreme.

95 years definitely is extreme, and the TPP should not be used to rewrite our copyright and other intellectual property laws. The Government has been resisting the US demands, but of course at some stage there will be great pressure to make concessions. Our concessions should be  allowing the US to export whatever goods or services they want to us, but not allowing them to export their laws onto us.

Created by: Paralegal.net

I’ve been meaning to post on this report for a while, called The Sky is Rising. Their intro:

For years now, the legacy entertainment industry has been predicting its own demise, claiming that the rise of technology, by enabling easy duplication and sharing — and thus copyright infringement — is destroying their bottom line. If left unchecked, they say, it is not only they that will suffer, but also the content creators, who will be deprived of a means to make a living. And, with artists lacking an incentive to create, no more art will be produced, starving our culture. While it seems obvious to many that this could not possibly be true, since creators and performers of artistic content existed long before the gatekeepers ever did, we’ve looked into the numbers to get an honest picture of the state of things. What we found is that not only is the sky not falling, as some would have us believe, but it appears that we’re living through an incredible period of abundance and opportunity, with more people producing more content and more money being made than ever before. As it turns out… The Sky Is Rising!

Just as some in the industry said the VCR would be fatal to their industry.

Some data from the report:

• From 1998 to 2010 the global entertainment industry grew from $449 billion to $745 billion
• In the US the % of household spending on entertainment has gone from 4.9% in 2000 to 5.6% in 2008
• Employment in US entertainment industry grew 20% from 1998 to 2008
• The number of independent artists rose 43% in the last decade
• The number of books available for sale has gone from 0.25m to 3.0m in last eight years
• Song tracks for sale have gone from 11m to 100m
• Films production has gone from 1,700 in 1995 to 7,000 in 2009
• Global box office revenues up from $25.5b in 2006 to $31.8b in 2010
• Music sales up from 687m in 2003 to 1,507m in 2010
• Music industry revenue up from $132b in 2005 to $168b in 2010

And remember the last two to three years has seen a global recession, which makes these figures even more impressive.

The report is a superb read – not just for the stats, but the case studies of how people are making money through new business models, rather than the old gate keeper models.

This report should be required reading for the Commerce and ICT Ministers. It shows the Internet is not the enemy of the entertainment industry. It is merely changing the old world business models some can’t bear to leave behind.

InternetNZ CEO Vikram Kumar has a good blog post on how you can make money from zero priced products. He notes:

Accepting some people won’t pay doesn’t mean they can’t make money. Instead, they need to come up with innovative answers to the question, “How do we give people what, when, and how they want our products at a zero price?”

The answers are there but it takes effort, attention, and good ideas. Let’s take an example from another industry, the software industry.

Zero cost software

How do you make money from software without charging anything for it? It’s not simple but several models exist. For example, there’s the upgrade or “freemium” model (charge for extra features or functionality); the services model (charge for allied services, e.g. design or support or tools); the donation or funded model (customer pays what they can or want to, before or after the software is developed); the loss-leader model (gain popularity to sell other software); the advertising model (money made from advertisers); etc.

How can this be applied? Just ask Justin Bieber how he got his break. Or, read this great article in The Guardian about Gorillaz as well as the one in GigaOM where author Neil Gaiman talks about how he is selling more books in countries where his books are pirated.

The traditional business model of Hollywood is based on the 1970s, not the 2010s. It will take time, but eventually they will change.

James Murray, TV3′s online editor, has done a very well researched and comprehensive blog post on the proposed TPP free trade agreement.

I am a huge supporter of free trade and my ideal free trade agreements simply consist of saying “You can sell our residents us anything you want that is legal and safe and we can sell your residents  anything we want that is legal and safe”. Of course then up to individual consumers what they choose to buy and import.

But free trade agreements are rarely that simple. They have a mixture of good and bad stuff in them. Overall the ones we have signed have been massively beneficial for New Zealand such as CER and the China FTA. But that does not mean all future ones will be. Murray points out some areas of concern in the TPP:

Hughes points out that proposed changes to copyright law could see the international copyright term (the author’s life plus 50 years) extended for another twenty years.

This would mean that no new works would enter the public domain in any of the countries signed to the TPP until 2033.

To steal a quote from the analysis linked to above – lengthening copyright terms would “impose severe costs on the American public without providing any public benefit. It would supply a windfall to the heirs and assignees of dead authors and deprive living authors of the ability to build on the cultural legacy of the past”.

What would this mean for publishing in New Zealand?

Books by James K. Baxter, Dame Ngaio Marsh and Ronald Morrieson, all soon to come into the public domain, would stay in copyright.

The US in 1998 increased the term of copyright from 75 years to 95 years, partly at the lobbying by Disney to stop early Mickey Mouse works entering the public domain. This was in my opinion not needed, as Mickey Mouse would still be a trademark owned by Disney and not able to be used by others.

Critics of the TPP point out that the agreement spelled out in the leaked document would lead to a situation where pharmaceutical companies would be able to extend patents on medicines more easily and also delay generic drugs from hitting the market.

Ever picked up a camera or mobile phone from a Parallel Import shop for less than an approved supplier?

Kirsty Johnston at Stuff reports:

The men’s hearing comes as Opposition politicians call for accountability into Dotcom’s status as a resident.

Although the overweight, flamboyant former hacker – who legally changed his name to Dotcom from Shmitz – had convictions from his native Germany, he was able to settle in Auckland after investing $10 million in New Zealand government bonds in 2010.

Those bonds are now part of the assets frozen by authorities investigating the charges against Megaupload – which include racketeering, money laundering and copyright infringements.

NZ First leader Winston Peters called for the prime minister to set up an immediate inquiry into how Dotcom was allowed to stay permanently in Auckland, where he lived in a $30 million mansion belonging to the Chrisco enterprise founders.

“It has been reported that Dotcom is known in Germany as a notorious computer hacker and has been convicted of insider trading, yet immigration authorities let him settle here under the so-called investor-plus category. The prime minister should order an immediate inquiry … to see who was involved in this immigration scandal and ensure that it doesn’t happen again.”

Labour immigration spokeswoman Darien Fenton said that before there was an inquiry, it should be asked whose responsibility it was to allow the discretion to overlook his convictions.

The “investor-plus” category Dotcom’s residency fell into needed to be looked at to ensure others of “dubious” character were not also able to bypass the good character test, she said.

In a statement, the Immigration Service said that “Mr Dotcom made full disclosure of his previous convictions and they were taken into account in the granting of his residence. The Immigration Act allows for discretion to be exercised in certain cases. In this particular case, Immigration NZ weighed the character issue and any associated risk to New Zealand against potential benefits to New Zealand”.

Calling for an inquiry into why he had been granted residency before he has even had a trial, is a rather bad case of the horse before the cart.

Certainly based on what has been reported to date, I have a pretty negative impression of Mr Dotcom. And in fact in several media interviews have said that at this stage the copyright holders have acted appropriately in complaining to the authorities, and the authorities laying charges if they have a good faith belief laws have been broken.

This is very different to demanding that new laws be instituted so that people may lose their Internet access on the basis of accusation, or in the case of SOPA that ISPs be forced to block websites based on accusations. These damage the Internet terribly.

But having said that my initial impression of Dotcom is negative, he has yet to have his extradition hearing let alone have his day in court. Only if he is found guilty of breaking the law, would you then expect there to be (quite legitimate) questions about the process and decision making around his residency approval.

I’m in an area with very limited phone and Internet access, so I heard about the arrests yesterday, but couldn’t blog on them.

I’m reserving judgement on the issue, until details of the alleged offences are known more fully. I would make the point that to my mind there has always been a significant difference between someone who accesses a file-sharing site or torrent in order to (for example) see the latest episode of a TV show not available in NZ, and those who are commercially making money from infringing copyright, or assisting others to infringe.

Whether or not Dotcom and others have broken the law, will of course be a matter for the courts. It is worth noting that the NZ courts will not extradite unless the charges are for something that is also an offence under NZ law. So if for example there was an arrest warrant out for you because you took part in (adult consensual) oral sex in Utah, they would not extradite as thankfully oral sex is not illegal in NZ. Not sure if it still is illegal in Utah, to be honest – just using this as an example.

I’ve been saying for sometime that copyright issues will be a massive battle involving the Internet for the next decade or more.

In this case the US are not necessairly on the wrong side of the argument. I’m not saying their actions are justified either – it really depends on the details of the case. But few would argue that making money out of infringing other people’s copyright is a good thing (if that is what they have done). There is an argument they were just providing a service that “pirates” used. Again, will depend on what is revealed in court.

In other copyright news (and no I don’t think the timing is deliberately related), it looks like the SOPA and PIPA bills in the US Congress are dead. Senators have been dropping their co-sponsorship of PIPA as millions of Americans signed an online petitions and e-mailed their representatives on it.

Also of note is all the remaining Republican candidates for President have come out against the bills. So chalk this victory up to people power.

Hollywood may have bitten off more than they can chew.

The studios got their lackeys in Congress to put forward a bill called SOPA – Stop Online Piracy Act.

Rather than target those actually infringing on copyright – it targets anyone who links to sites that allegedly infringe – including search engines such as Google. It basically wants Google and others to act as filters on behalf of Hollywood – a law China could be proud of.

The ramifications are massive. Someone might post a comment on Kiwiblog mentioning the name of a site which tells you where some good torrent sites are. Bang – Kiwiblog is out of the search engines.

But it gets worse than that. Under SOPA, ISPs (US ones anyway) could be forced to block access to sites. Just like in Syria and Libya. A summary of views against from Wikipedia:

On TIME‘s Techland blog, Jerry Brito wrote, “Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities’ privacy? Or what if France blocked American sites it believed contained hate speech?”^[21] Similarly, the Center for Democracy and Technology warned, “If SOPA and PIPA are enacted, the US government must be prepared for other governments to follow suit, in service to whatever social policies they believe are important—whether restricting hate speech, insults to public officials, or political dissent.”^[22]

Laurence H. Tribe, a Harvard University professor of constitutional law, released an open letter on the web stating that SOPA would “undermine the openness and free exchange of information at the heart of the Internet. And it would violate the First Amendment.”

My views are simple. No Government should censor the Internet. If people access illegal material on the Internet then they should be held liable in a court for that. If people commit crimes on the Internet, then they should be arrested for that. And yes if people infringe copyright on the Internet, they should be liable under the law. But to have laws giving the power to require all ISPs in a country to block particular sites is a practice that should remain the norm in China, not the US and definitely not NZ.

Amusingly the MPAA has actually cited China in their advocacy, with the MPAA Chairman having said that as Google has figured out how to block sites when China requests it, it can’t be that big an issue.

Anyway the backlash has begun and could be huge. Wikipedia is closing down later today for 24 hours as part of a black out protest. I can just imagine the millions of pissed off Americans who will be e-mailing their complaints into Congress.

Think if Google did the same? Maybe even for just three hours the search engines all turned off and displayed a protest page?

The MPAA and RIAA are used to being the biggest players in the game. I think they are about to find out they’re not.

In my blog at Stuff I propose:

New Zealand should ask for the US to commit to a law change that any copyrighted material released in the US for sale, can also be immediately sold (or re-sold) to New Zealand consumers.

So if a US studio releases an episode on iTunes for 99c the day after it is broadcast in the US, then no more blocking New Zealanders from being able to buy it.

Such a law change would probably do more to reduce infringing file-sharing of TV shows, than any amount of punitive measures.

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The Washington Post reports:

A file-sharing group that considers itself a spiritual organization said Thursday that Sweden has recognized it as a religious community. According to documents provided by spiritual leader Isak Gerson, 20, his Church of Kopimism received that approval in late December. …

Gerson said in an interview that some of the church’s roughly 3,000 members meet every week to share files of music, films and other content they consider holy and regard copying as a sacrament. He said the church’s philosophy opposes copyrights in all forms and encourages piracy of all types of media, including music, movies, TV shows, and software. …

“Being recognized by the state of Sweden is a large step for all of Kopimi. Hopefully, this is one step toward the day when we can live out our faith without fear of persecution,” he said.

This could become a very popular religion. When is the next NZ census again?

Stuff reports:

Lucasfilm, owner of the Star Wars movies, has prevailed upon online electricity retailer Powershop to drop an advertisement featuring evil movie character Darth Vader.

In the online advert, Vader is pictured as a kind of Maria von Trapp figure from The Sound of Music. He is dancing across a field with mountains in the background and carrying a guitar case.

Lucasfilm’s lawyers said they had been instructed to write to Powershop asking it to cease use immediately of the advert, and undertake not to make further use of the Darth Vader character without the prior consent of Lucasfilm. …

Its chief executive, Ari Sargent, said he responded immediately to the request from Lucasfilm by withdrawing the advert, but was also surprised at having attracted the attention of Lucasfilm “Empire”.

“Powershop is not a member of any rebel alliance. I’m surprised the Empire considers small companies like Powershop to be a threat; perhaps our force is stronger than we thought,” Sargent said.

The advert is part of Powershop’s “Same Power, Different Attitude” campaign which shows dictators and tyrants engaging in unlikely acts of charity and goodwill. 

It can be amazing how thorough those law firms can be in tracking down infringements and sending out nastygrams.

In 2000, when I worked for the National Leaders Office, we set up a website to fight Labour’s proposed employment law changes. We called it Walking with Dinosaurs, and a logo from Jurassic Park was used.

Around two months later the nastygram letter turned up. But instead of sending it to the Leader’s Office, they sent to the then National Party President, who was rather alarmed to be having Universal Studios threaten him with legal action over a site he actually had nothing to do with.

Waldo Kuipers from Microsoft NZ blogs some advice on how account holders can avoid being stung under the new copyright law.  Well worth a read if you are an account holder and more than just yourself use the account. His main points are:

1. Set clear expectations about internet use
2. Cover the Internet security basics
3. Remove unwanted peer to peer file sharing software
4. Consider monitoring on restricting Internet use

On Friday Night I was watching a DVD of the TV series Las Vegas. For once we let it run past the credits, and I started to piss myself laughing at the copyright warning which followed, which is embedded below.

To the backdrop of a demonic guy working on a forge, FACT tells you the pirates are out to get you, piracy funds organised crime, will destroy our film and video industry costs jobs, will also destroy the music and publishing industries and best of all it funds terrorism.

I’m surprised they didn’t also say piracy will cause global warming, earthquakes and plague, and that you will go to hell if you torrent.

Clare Curran blogs at Red Alert:

If elected, we will introduce a Bill within 90 days to remove the termination clauses from the Copyright Act. Those clauses, which give the District Court the ability to impose account suspension as a remedy for infringing file sharing – can’t work in the long term.

This is a welcome policy from Labour. Congrats to Clare to have got Labour to change their position so radically. Three years ago the law was to require ISPs to terminate all repeat copyright infringers (based on accusation), and now it is to remove termination as an option.

This is a good example of the difference a dedicated spokesperson can make.

It is worth noting that the termination clauses are a “reserve” power at the moment, and can only be activated by Cabinet if they feel the current regime has failed to work. I don’t think it is likely they would ever be activated, but I certainly would much prefer the option is taken off the table – as Labour is proposing.

What this means, is that if a future National Government does ever try to activate the termination clause, it would be vigorously opposed by Labour as well as the Greens (and much of the community), which should reduce the chance of it happening also.

Labour will also undertake a review of the Copyright Act, with the aim of introducing a new Copyright Bill within 18 months that updates and extends the framework for digital copyright in New Zealand.

The first phase of the review will be to commission an independent analysis of the problems with the status quo from an eminent expert, such as the review Professor Hargreaves has recently conducted for the UK Prime Minister, and then consultation on a draft Bill before it is introduced.

New Zealand’s Copyright Act has been half-heartedly adapted for the Internet age.  Instead of more piece-meal reforms, we need to transform our digital intellectual property framework, to bring it into the 21st century and to promote innovation and growth in our economy

I’m supportive of this also. I hope any such review (if Labour do form Government) is what I would call a first principles review of copyright – asking what is the correct balance between economic protection and public use in today’s world. This is more than just asking how can we make the law better. I would see such a fundamental review as being more than an 18 month exercise.

The focus should also be on more than just digital copyright. We should also debate issues such as fair use vs fair dealing, protection for use for satire or parody etc. The debate should be about these basic issues, before we even get onto how then does it apply in the digital environment.

Overall though a very welcome announcement from Labour. Well done.

The Dom Post reports:

The Cabinet will today issue an instruction to government departments that they should make all data they hold available for free or at a reasonable-price in accessible file formats for reuse by businesses, unless there are good reasons not to.

The Government will recommend they do so under a “Creative Commons” licence that means they could not usually be held liable for any errors or omissions.

Finance Minister Bill English said the policy would spawn new business opportunities and services, increase government accountability and allow greater scrutiny of policy decisions.

“It is the Government’s expectation that agencies should release all non-personal and unclassified data with high potential value for re-use.”

Internal Affairs Minister Nathan Guy said departments had been opening up over the past 10 years, but the steps they had taken had been “ad hoc” and there were no clear expectations. About 1400 data sets are available free online through the website data.govt.nz.

Great to see the Government using Creative Commons, and also making a tangible commitment to opening up Government data.

Readers may not be aware that any evidence of file-sharing involving copyrighted works, can be used under the three strikes law from today.

The law comes into effect on 1 September, but complaint notices can refer to any alleged infringing within the last 21 days, which starts today.

So if you torrent etc any copyrighted works from today onwards, and your IP address is not masked, then it is possible your ISP will be sent a complaint, and you will receive a “first strike” notice.

Until around 10 days after your first strike notice, you can’t receive a second strike, no matter how many complaints are received – so the first strike might cover one instance or 100.

Be aware though if you do make it through to a third strike and the Copyright Tribunal, then costs can be imposed on all the recorded infringing (if proven).

Simon Power has announced:

Commerce Minister Simon Power today announced that internet service providers will be able to charge rights holders up to $25 for processing an allegation of copyright infringement.

The decision was made by Cabinet when considering technical regulations to underpin the Copyright (Infringing File Sharing) Amendment Act 2011, which comes into effect on 1 September.

“The Government decided that a fee of up to $25 fee was an appropriate compromise between what rights holders and the ISPs wanted.

“However, we will review that six months after the Act comes into effect to make sure it’s at the right level.

I’m pretty happy with that level, especially as RIANZ wanted $2. From an ISP perspective it might not be enough to cover costs (which is regrettable) but it is definitely set high enough to deter rights holders from filing tens of thousands of complaints a month, and swamping ISPs.

The “downside” of a relatively high fee is that is you do keep infringing and get found liable by the Tribunal, you’ll be ordered to pay the $25 costs per infringement notice plus the $200 fee for taking it to the Tribunal plus the cost of any actual works infringed.

The Cabinet Paper is here. Note that the paper talks of a $20 fee, which is what was recommended to them by the Minister. Cabinet increased it to $25, which is pleasing.

The fee will be reviewed after six months. This is useful, as by then ISPs should have some hard data on what the costs have been, and what the volume of notices has been.

Ars Technica reports:

Earlier this month we covered a UN report that argued that “three strikes” laws that deprive alleged copyright infringers of Internet access violate human rights. The report was delivered by an independent UN investigator, and so didn’t represent the view of any UN member governments.

Michael Geist notes that on Friday, Sweden made remarks at the UN Human Rights Council that endorsed many of the report’s findings, including the criticism of “three strikes” rules. The statement was signed by 40 other nations, including the United States and Canada. The United Kingdom and France, two nations that have enacted “three strikes” regimes, did not sign the statement.

“All users should have greatest possible access to Internet-based content, applications and services,” the statement said, adding that “cutting off users from access to the Internet is generally not a proportionate sanction.” It also called network neutrality and Internet openness “important objectives.”

Interestingly, the report is signed by New Zealand, which enacted legislation in April that sets up a special Copyright Tribunal for expediting file-sharing cases. The penalties available to the New Zealand government include Internet disconnections of up to six months.

Very interesting. The Swedish statement which NZ endorsed said:

All users, including persons with disabilities, should have greatest possible access to Internet-based content, applications and services, whether or not they are offered free of charge. In this context, network neutrality and openness are important objectives. Cutting off users from access to the Internet is generally not a proportionate sanction.

I’m glad to see the NZ Government says that cutting off Inernet access is generally not a proportionate response. From that I assume the Government will never activate the power for a Judge to cut off Internet access as a response to copyright infringement.

If the postition of the Government is such an act is not a proportionate sanction, then it would have been nice if they had removed it entirely from the Copyright Act. Otherwise there can be the appearance of saying one thing at the UN, and doing another thing back home.

Charlie Gates at Stuff reports:

The first New Zealand cinema census of 4000 people found 62 per cent went to the cinema once a month, with 27 per cent seeing as many as three films a month.

It also found 51 per cent regularly downloaded movies, but 87 per cent of those did not pay for them.

Only 40 per cent of respondents were opposed to illegal downloads. The survey was conducted by movie website flicks.co.nz, and 48 Hours and Incredibly Strange film festivals creator Ant Timpson.

Flicks managing director Paul Scantlebury said he was surprised by the number of people illegally downloading films.

He said people turned to the internet because movies were shown in New Zealand much later than the rest of the world.

“Everyone is online and knows a movie is out and is good, but often it will be out on DVD in the US before it is out in the cinema here,” he said. “iTunes is not really much better. The legal way of doing this is not very good.

“If there was a viable, legal and local option, people would use it. It is sad because people are forming habits and learning new ways to access movies.”

Exactly. If you do not make movies available legally, this means that the only way to see a movie in a timely manner is to access it illegally. Isn’t that sort of dumb?

However, Motion Picture Distributors’ Association chairman Robert Crockett said illegal downloads could damage an industry that sustained 22,000 New Zealand jobs. “This highlights the issue that there is illegal downloading and we need to do something about it as a creative industry,” he said.

“I think most people want to do the right thing if they know that what they are doing is illegal and has a cost locally.

“I’m sure they will choose to do the right thing if they are given a viable and legal option to do so.”

Exactly.