Did the USA write New Zealand's new law?

More on New Zealand - and both Techdirt and Zeropaid report that the Green party in New Zealand is demanding clarification of possible US government and US rights industry intervention in helping to shape and pass the country’s somewhat controversial Copyright (Infringing File Sharing) Amendment Act, including the US music industry’s offer to fund an intellectual property enforcement unit to combat what US officials call “key gaps in intellectual property rights enforcement”. The information that comes from Wikileaks cables from 2005 and the Green Party’s Information and Communications Technology spokesperson, Gareth Hughes reportedly said “The latest Wikileaks cables show how vulnerable our Government is to pressure from big businesses in the USA,” adding “We’ve got to keep politics honest, so it’s important to find out exactly what influence US interests had in securing the rushed passage of controversial copyright legislation through Parliament”. Hughes went on to say “This kind of blatant intervention in local law enforcement is undermining our democracy … the New Zealand Government has been subject to intense international corporate lobbying. As the Government consults further on the current online copyright regime, it must make decisions that work for the New Zealanders that elected them, not US interests” adding “Hollywood moguls shouldn’t be writing our law!” Similar allegations about undue US influence were raised about draft copyright legislation recently introduced in Spain.

Separately, it also seems that the US warned New Zealand that exceptions in copyright law for format and time-shifting for personal use should not be allowed in New Zealand because “these exceptions to copyright protection would send the wrong message to consumers and undermine efforts to curb unauthorized copying of CDs in New Zealand. They would cost the industry in revenue and profits and discourage innovation".

http://www.techdirt.com/articles/20110501/00364014101/us-offered-to-write-new-zealands-three-strikes-laws.shtml

http://www.zeropaid.com/news/93336/new-zealand-green-party-why-is-hollywood-writing-our-copyright-law/

Kiwi three strikes prompts cyber attack

The New Zealand government's new 'three strikes' anti-piracy proposals, which have finally moved into law and are due to come into effect in September (2011) have prompted a fresh wave of protests and the threat of cyber attacks on the Government’s websites.

The Copyright (Infringing File Sharing) Amendment Bill has caused immense controversy in New Zealand, particularly in the blogsphere, with many online commentators calling the bill ‘draconian’ and questioning why the bill was rushed through the New Zealand Parliament reportedly using emergency procedures invoked to help victims of the Christchurch earthquake for cover. In particular Section 92A which initially placed the onus on ISPs to disconnect repeat infringers met with fierce opposition when it was mooted two years ago and whilst it has been amended as it currently stands it does provide for a ‘three strikes’ system which ultimately allows for the disconnection of internet users for repeat infringements. However, whilst the ability of copyright owners to apply to have repeat offenders disconnected remains in the legislation, it will not come into effect unless after two years it is shown that other less severe sanctions are ineffective.” However what does remain is the requirement for ISPs to send warning letters to those suspected of infringement and the threat of disconnection for up to six months.

When the laws were passed, numerous NZ websites blacked out their home pages and in protest but now things look a tad more serious - internet activist group Anonymous is threatening to shut down the New Zealand Parliament’s website as a protest against the new copyright law. Anonymous previously threatened to take down internal affairs website and, in March, that site was indeed down for a few days. NZ Parliamentary Services says it is taking this new threat seriously and is now working to try to pre-empt any attack.

New Zealand joins France, South Korea, The UK and Taiwan who have all implemented various configirations of 'graduated response' or three strikes legislation to fight online piracy. France's law HADOPI allows for a graduated response to online infringement. rhe state funded scheme (under which ISPs must provide data) allows for fines and internet suspension for repeat infringers up to one year. Injunctive relief is available to those who could contribute to prevent / terminate infringement. Taiwan has a simlar scheme with judicial proceedings available to rights holders to take action against those who post or host infringing material alongside a "notice and takedown" procedure to have infringing material removed. This is coupled with a three strikes system against internet users who ignore warnings and download material illegally more than twice. A January 23rd poll in France indicated that 49% of French Internet users continue to illegally download music and videos.


http://www.zeropaid.com/news/93080/new-zealand-passes-three-strikes-law/

http://www.billboard.biz/bbbiz/content_display/industry/news/e3ib20649ac4d6059c216967baf5dfee28b

Oh the luck - Irish get three strikes back - and a new music service too!

Eircom, the Irish internet service provider, has resumed its policy of cutting off the internet connection of customers who illegally share music online. The company had suspended its policy earlier this year but before this the company sent out about 1,000 warning notifications each week to people who were allegedly infringing copyright by illegally downloading music. Its “three strikes” policy allows customers three official warnings before their internet connection is suspended.

The move is especially interesting given that the Mr Justice Charleton, in Irish High Court, had (somewhat reluctantly) agreed with rival broadband supplier UPC in a battle against several record companies, ruling that internet service providers were not liable for a customer’s illegal downloading nor did Irish law provide any basis for a ‘three strikes’ approach. In an very impressive presentation on recent case law in this area at the Music and IP conference in London yesterday (8th December) 5RB barrister Christina Michalos explained that Mr Justice Charleton said that there was no injunctive relief available in Ireland in the matter and that Irish copyright legislation made ”no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright” - and that the powers of Irish courts did not extend to obligating an ISP to block access to file sharing sites. Despite this, Eircom has decided to resume the strategy it implemented a year earlier following an out-of-court settlement with the same companies. Stephen Brennan, Eircom’s managing director for consumers and small businesses said that as the country’s largest broadband provider, Eircom felt its method of warning internet users about their activities was the best compromise between music companies and internet providers. Before the suspension Eircom had not actually yet disconnected any customers’ broadband but it did have some on three strikes at the time of the High Court case.

Simultaneously Eircom has launched a new online legal service, MusicHub, which offers free and unlimited streaming to Eircom broadband customers along with deals for legally downloading music to personal computers offering a range of bundled download packages where the unit price for each track downloaded could be as low as 32 cents. Launching the new service yesterday, Eircom's Stephen Beynon said "MusicHub is a major development for Eircom in the online content space. We are the first and only internet provider in Ireland to offer online streaming as part of a music service. Customers will not find a greater selection of music across all genres anywhere else in Ireland from their broadband provider". Mr Brennan described it as the “carrot” part of the company’s carrot-and-stick approach to counteracting copyright infringement, with the three strike process agreed with record labels being the “stick”. An Eircom's statement stressed net suspensions was a "measure of last resort".

http://www.irishtimes.com/newspaper/ireland/2010/1209/1224285100549.html

EMI Records & Others v UPC Communications Ireland Ltd (2010) IEHC 377

BT and TalkTalk take on the DEA

British ISPs Talk Talk and BT have asked the High Court for a Judicial Review to clarify the legality of the country's recently passed Digital Economy Act, which includes provisions requiring ISPs to police file-sharing and which introduces the much debated ‘Three Strikes’ procedure which ultimately may result in subscribers who indulge in illegal file sharing or other infringing activities having their bandwidth reduced or even their internet connection terminated.

The ISPs say the law was "rushed through" with "insufficient scrutiny” and they are asking the Court to clarify whether the U.K. law conflicts with Europe's e-commerce directive, which limits liability of offences committed by ISP subscribers, giving protection similar to the "safe harbour" provisions of the U.S. Digital Millennium Copyright Act. TalkTalk boss Charlie Dunstone told reporters: "We think the previous government's rushed approach resulted in flawed legislation. That's why we need a judicial review

The two ISPs also believe the provisions of the Act that require ISPs to disconnect repeat file-swappers unfairly target larger ISPs, as they only apply to firms with more than 400,000 subscribers with Andrew Heaney from TalkTalk saying “It means we could have huge swathes of customers moving to smaller ISPs to avoid detection.”

It will be interesting to see if this all ends up with a reference to the European Court of Justice on one more more of the points of law raised. In the 2008 case of Promusicae v Telefonica, the ECJ said that it was up to national courts to perform the balancing act of protecting both copyrights and in this case privacy rights. And here the ECJ was ruling on whether, under European law, there was any obligation on ISPs to reveal the identities of suspected file-sharers.

TalkTalk have been vocal in their opposition to three strikes but BT are newer to the fray: BT's Industry Policy Director Simon Milner said yesterday that "every film downloaded from The Pirate Bay or the dozens of other sites offering unlicensed content is a lost sale for BT Vision", but added that when it came to the wider issue of online copyright protection "this is their [the copyright owners'] business: it's up to them to find a solution to their business problems, it's not principally our problem".

UK Media regulator OfCom is currently consulting key interest groups on how a three-strikes might work under the provisions of the DEA.

Young Guns Go For It

On Thursday Night (8th July) Berwin Leighton Paisner kindly hosted one of the regular bi-monthly BLACA meetings (British Literary and Artistic Copyright Association) and this one had a particular twist – the topic was copyright but seen through the eyes of two young copyright professionals, the joint winners of BLACA’s 2010 competition, the prize being the chance to make this presentation!

Chaired by Professor Alison Firth (University of Surrey), the first presentation was from Mark Smith, a newly qualified solicitor at Osborne Clark, and was simply titled “Copyright in the Digital Age”. I won’t dwell on the detail as this and the following presentation will both be available soon on BLACA’s website at http://www.blaca.org/ . Suffice to say, they are both well worth a read and Mark gave a professional speech in a wide ranging presentation. The second presentation was by Ed Cameron , who comes from a science background and has just completed a MSc in the Management of Intellectual Property at Queen Mary College, University of London. Ed focussed on the Digital Economy Act in a presentation titled “The Digital Economy Act - are ISPs under Attack?”. This Blogger has to admit he has not really looked at the finer details of the enforcement provisions of the DEA (particularly those referred to as the ‘three strikes’ system), and Ed did, where there was clarity in the Act, makes some sense of what look like rather complicated enforcement provisions. As with Mark’s presentation, read the detail online.

The sometimes challenging question and answer session was deftly handled by Prof. Firth and a recurring theme was the role of the collection societies in new business models, along with the need to educate the consumer and some comment on the failure of domestic and even the pan-European copyright regimes to provide effective enforcement tools for content owners in the global digital age. I have to say I thought both of the speakers did really well – a brave challenge for two young men who were students this time last year – faced with a room that included some well seasoned copyright lawyers ..... and a few less seasoned ones as well!

Details on this year's BLACA prize can be found at http://www.blaca.org/prize.htm

Eircom users to face Dtecnet scrutiny

The Irish Times has reported ("Eircom to cut broadband over illegal downloads") that

"EIRCOM WILL from today [24 May 2010] begin a process that will lead to cutting off the broadband service of customers found to be repeatedly sharing music online illegally.

Ireland is the first country in the world where a system of “graduated response” is being put in place. Under the pilot scheme, Eircom customers who illegally share copyrighted music will get three warnings before having their broadband service cut off for a year.

The Irish Recorded Music Association (Irma), whose members include EMI, Sony, Universal and Warner, reached an out-of-court settlement with Eircom in February 2009 under which the telecoms company agreed to introduce such a system for its 750,000 broadband users.

The mechanism by which it operates was challenged in the courts by the Data Protection Commissioner. Mr Justice Peter Charleton ruled in the High Court [see IPKat note here] that a broadband subscribers internet protocol (IP) address, which Eircom will use to identify infringing customers, did not constitute personal information.

It is understood that, during the pilot phase, Eircom has agreed to process about 50 IP addresses a week. Irma is using a third-party firm, Dtecnet, to identify Eircom customers who are sharing, and not simply downloading, a specific list of its members’ copyrighted works on peer-to-peer networks. The operation of the scheme will be reviewed after three months.

Dick Doyle, director general of Irma, said his organisation could potentially supply Eircom with thousands of IP addresses a week but it was a matter of seeing what the internet service provider (ISP) was able to process.

Infringing customers will be initially telephoned by Eircom to see if they are aware of the activity on their broadband network. If the customer is identified a third time, they will have their service withdrawn for seven days. If they are caught a fourth time their broadband connection will be cut off for a year. Mr Doyle said international research suggested 80 per cent of people will stop illegal file-sharing if they get a letter from their ISP warning them of the consequences [Is this research published? What's its methodology? Is it reliable?]. ...

... Cable operator UPC has resisted requests from Irma to implement a “three strikes” system and the case is in the courts next month. Last night, a spokeswoman for UPC said it does not see any legal basis for monitoring or blocking its subscribers’ activities".

The 1709 Blog, which hasn't yet heard reports of anyone receiving a call from Eircom, is fascinated to see how effective this procedure will be and hopes its readers will keep it informed of developments as they unfold. Other than a migration of illegal file-sharers to other ISPs and/or fresh identities online, this blogger suspects that the net result of this exercise will be reflected in the increased cost of monitoring and enforcing copyright but without a corresponding increase in sales of legitimate product.