Saddened to hear that the death of Greg Ham of Men at Work may in part be down to overbearing application of copyright law.

I've always thought the Australian decsion which held Downunder infringed the Australian folk classic, Kookaburra was wrong.  A pity that Australia didn't have its parody and satire copyright exception in place at the time since that would have excused this anyway (note for New Zealander's, especially media and advertising types: We don't have a parody and satire exception).

Judge for yourself though whether you think this is copyright infringement deserving of this legal action and, it would appear, the tragic consequences.

The New Zealand Computer Society's consultation on the draft NZ Cloud Computing Code of Practice closed a little while ago.

Here's my submission.

Click here to download:

Cloud_code_submission.pdf (96 KB)

(download)

Click here to download:

Cloud_code_submission.pdf (96 KB)

The case is rightly described as a landmark one in terms of ISP/host liability for the actions of users, in this case p2p users. It is being watched worldwide.

It will of course influence discussions taking place in Australia and elsewhere on whether and how to implement copyright graduated response systems (of which New Zealand's infringing file sharing regime is an example) and Australian discussions on extension of their safe harbour regime.

Comments by the High Court could also impact on Australia's position in the Trans Pacific Partnership Agreement negotiations - particularly any comments on termination of internet accounts as a remedy for repeat copyright infringement or graduated response systems generally, since those are both part of what the US is pushing for in those negotiations.

For us in New Zealand, some or all of these issues and more will be in play:

• We have our own landmark case focussed on intermediary liability - Megaupload. While that is a criminal prosecution and iiNet is civil, at the heart of the Megaupload allegations is the same copyright question - what responsibility does an online provider have for the actions of its users and what steps are reasonable for it to take in respect of copyright infringement?
• There is currently a review underway in New Zealand on the level of the fee that copyright owners must pay to ISPs (IPAPs) under our infringing file sharing regime (the fee is currently set at $25 per notice).  Submissions on that close at the end of this month.
• We also are part of the Trans Pacific Partnership Agreement negotiations and are under pressure to accede to so called "stronger" IP laws, including repeat infringer internet termination and beefed up graduated response.
• We have a full review of the digital provisions of our Copyright Act due to start in 2013, which will no doubt ask questions on intermediary liability, the new file sharing regime, ISP safe harbours and other issues which are central to the iiNet trial.

So watch this space.

After an erudite exposition of the human right nature of internet access by His Honour District Court Judge David Harvey (NZ's most tech savvy jurist), the USA not surprisingly acceded to the accuseds' request to be allowed internet access, during an application by Dotcom and collegaues for variation of their bail conditions today.

Another more unusual request was for Kim Dotcom to be allowed to visit a music recording studio to continue with the production of an album he is apparently involved with. That request was resisted by the USA. Which resulted in the following wry observation from His Honour:

" There was also a level of scepticism about the success of the recording.

...

This Court cannot speculate on  the success or otherwise of Mr Dotcom’s venture.  The numerous varieties of modern musical genres suggest that there are probably unimagined audiences available, and modern legitimate digital distribution systems are changing the face of the music market. I could venture to suggest that notoriety alone could well be a marketing angle for Mr Dotcom’s venture"

Full copy of the decision below:

Click here to download:

2012-04-02_Bail_Variation_Decision.docx (31 KB)

(download)

Click here to download:

2012-04-02_Bail_Variation_Decision.docx (31 KB)

I wrote earlier about the issues with the proposed Trans Pacific Partnership Agreement (TPPA) investor-state provisions. Those are the provisions which would enable a foreign investor to sue a Government if that Government's proposed law changes would negatively impact a company's investment in that country.

The impact of this on our internet and IT sector could be significant if New Zealand was precluded from updating its laws to facilitate technological development. We know how aggressive some incumbent firms can be in their attempts to maintain outdated business models in the face of disruptive new technologies and law changes which cater for those. The rear guard actions fought by music recording companies and large film studios over various technologies enabling format and time shifting are a case in point. In New Zealand, it is still illegal to copy a film from a computer to an iPod without the permisison of the copyright owner.

But, wait, it's worse than that. Far worse.

In an interim award handed down by one of the arbitral bodies that hears these types of investor-state disputes, Chevron has obtained an order forcing the Republic of Ecuador to overturn an Ecuadorian Court ruling. 

That's right, a private three person panel based in the Hague has the power under one of these treaties to order a Government to use it's "judicial, legislative or executive" power to countermand the lawful decision of one of that country's properly constituted Courts. So much for separation of powers. So much for sovereignty.

Hard to believe I know but here's the award.

Click here to download:

ChevronSecondTribunalInterimAward.pdf (450 KB)

(download)

Click here to download:

ChevronSecondTribunalInterimAward.pdf (450 KB)

There are many fascinating legal aspects of the Megaupload case (although I'm sure Kim Dotcom and his fellow accused would rather not be punching bags for the development of internet law).

One particular strategy which appears to be being played out by the defence is to label the prosecution as politically motivated. There were implications of this in Dotcom's interview with John Campbell of TV3:

[Dotcom] "So it’s really, in my opinion, the government of the United States protecting an outdated monopolistic business model that doesn’t work anymore in the age of the internet and that’s what it all boils down to."

but it now seems to be more overt. This in PCMag reportedly from a Dotcom telephone interview with torrentfreak:

"Indicted Megaupload founder Kim Dotcom this week characterized a number of the charges he faces in a far-reaching racketeering and copyright infringement case as "nonsense" and said his file-sharing site provided a legitimate service but had been shut down by U.S. officials in January for "political reasons.""

Characterising a US prosecution as politically motivated no doubt plays well in the lead up to a US election. It would also strike a chord with those who were concerned enough by the threat of SOPA/PIPA to black out websites and twitter avatars and deluge their elected representatives, until those proposed US laws were put on hold. Many have already pointed out the irony in SOPA/PIPA aiming to enshrine online business takedown without adequate due process, while at the same time similar measures were being visited on megaupload.com (and many other sites).

But, is it possible there is a more strategic legal reason for this "political" characterisation?

The warrants that enabled dawn raids on Dotcom mansion and seizure of various assets and bank accounts, were granted under a little used 10 year old New Zealand statute - the Mutual Assistance in Criminal Matters Act 1992 (MACMA).  This creates a regime whereby authorities in New Zealand may request assistance in the investigation and lead-up to criminal prosecution under New Zealand law of people located in other countries. In return, New Zealand agrees to accord authorities in those other countries similar assistance here.

The process starts with a request made by the foreign country to the New Zealand Attorney General. The Attorney General then has to decide whether to accept the request and instruct the relevant New Zealand authority (the Police in this instance), or not.  Among the reasons for refusing a request from a foreign country:

"there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character"

A longshot maybe, but given the various discretions the Attorney General has already exercised and will need to continue to exercise under MACMA and the Extradition Act, and Mr Dotcom's promise to "fight 'til the end", I'd not be surprised to see the defence consider an application for judicial review at some stage. 

Maybe that's why it's all "political"?

As promised, MED is consulting on the $25 maximum fee which may be charged by IPAPs (ISPs) for processing notices for copyright owners and otherwise performing IPAP obligations under the Copyright (Infringing File Sharing) Amendment Act 2011.

The consultation paper is below.

Click here to download:

copyright-regulations-fee-review-discussion-document-march-2012.pdf (62 KB)

(download)

Click here to download:

copyright-regulations-fee-review-discussion-document-march-2012.pdf (62 KB)

The New Zealand Information Security Forum is hosting a special 1 hour seminar from a couple of visiting experts. I'll be at Webstock so can't go unfortunately as it looks interesting (and free to attend, which is even better!)

Details from the invite I received are below. Contact Lech Janczewski at Auckland University if you want to attend - lech@auckland.ac.nz

---------------------------------------------------------

New Zealand Information Security Forum (NZISF) cordially invites you and your friends to a special seminar:

Venue:     Owen Glenn Building, School of Business, 12 Grafton Rd, CBD, Auckland, Lower level, Case Room 1

Date:       Friday, 17 February 2012

Time:      10:00 – 11:00

Cost:       Free  

Topic:     Protections for and usage of anonymised personal data in the UK and US  

Medical researchers are becoming increasingly interested in the large databases of patient records being created in the healthcare systems of the US and UK. But patient and privacy advocacy groups have raised concerns about the effectiveness of anonymisation techniques used to sanitise data for research access, as well as the impact on patient consent to research.

 This talk describes the key systems being designed in the two countries, and assess the privacy and consent protections of the law - the Health Insurance Portability and Accountability Act and recent Supreme Court privacy case law in the US, and the Health and the Social Care Act in the UK.  We will also discuss moves to broaden research access to other types of government databases, such as education records.

 Presenters:    Ian Brown (University of Oxford) and Andrea Matwyshyn (Wharton School of the University of Pennsylvania)

Just a quick post triggered by two court cases from opposite sides of the world.

In the first, Optus in Australia succeeded at first instance in batting away a claim that its TVNow product infringes copyright in the National Rugby League/Australian Football League's programmes, which they have exclusively licensed to Telstra, a competing telco/media company.

Optus' TVNow product enables people to watch these programmes via the internet, in some cases only a couple of minutes after they are broadcast free to air under the Telstra arrangement.

The court held (with one exception to be considered later) that this fit within Australia's time shifting exception and was therefore not a copyright infringement.

In the second case a court in the US has refused to grant EMI an injunction to prevent ReDigi providing a service which allows people to resell their digital music. ReDigi's argument is that this is simply an example of the first sale doctrine which has always allowed people to sell books and CDs without infringing the copyright in the content written on that paper or plastic. It is reported that the Judge in the case considers the issue is so important and novel that it needs to go to trial rather than shutting down ReDigi and effectively deciding the outcome without proper argument. (An interesting comparison with Megaupload and other cases where Judges have been prepared to grant injunctions or warrants to shut down web services on the basis of allegation alone).

If both Optus and ReDigi succeed in their arguments, it really does get me to wondering how copyright can survive, certainly in its current form.*

If I can buy any secondhand digital file I want and I can access whatever I want from competing suppliers within a very short space of time, in both cases without having to pay the original tillerman, it's going to be a game changer.

Although maybe it's not a game changer for copyright itself but just for the tillermen.

* I'm awaiting my copy of Bill Patry's How to Fix Copyright so maybe I'll get the answer there.

The report comments, with respect to New Zealand's passing of the Copyright (Infringing File Sharing) Amendment Act: 

Ipsos MediaCT research from August 2011, on the eve of the law coming into force, found that seven in 10 P2P users said they would stop infringing on receipt of a notice backed by sanctions as part of the country’s graduated response programme. According to IFPI, usage of P2P networks fell 16 per cent in the first three months of the law being in force, accompanied by increasing online sales

Of course a drop in usage of P2P networks says nothing about copyright infringement and increasing sales could well be a result of the leadup to Christmas and slightly better economic conditions. But, what this does mean, is there is now no need for the internet account termination provisions of the Act (which have been held in abeyance pending assessment of the Act's efficacy). That is a good thing.

The bad thing is, as far as I know, the research referred to has not been published so we have no way of knowing what methodology was used and how robust the conclusions are. As I've said before, this lack of transparent evidence is no longer best practice (if it ever was).

Further thoughts updated 17 April 2012

It occurs to me also that the above is highly relevant to the review currently being conducted by MED on the fee that rights owners pay to ISPs (IPAPs) when sending in their notices under the infringing file sharing regime.

Given that very few notices were sent in the first few months of the regime and those only by RIANZ (apparently only for non New Zealand music), it can't be that the number of notices is the driver for the success which IFPI mentions.  I expect it's actually got far more to do with the recording companies getting their act together to at last provide multiple legitimate channels for music to be purchased (of which vevo is the latest).  That and the publicity around the new law, its predecessor s92A, #skynet and the general bubbling up of copyright discussion into the mainstream.

Which then leads onto my point about the review.

One of the things that everyone agrees on is that the lower the fee, the more notices will be generated (and there could be a lot if we open the flood gates).  For ISPs this is a disaster because they are already having their lunch cut at $25 per notice (they estimate their costs could be around $50 if volumes increase).

The MED discussion document is pretty blunt about it - do we need to reduce the notice cost so that we get more notices?  Would that make the regime more effective?

Well, I think what we can see from IFPI's own assessment is that there is no need for that. It's not the number of notices that has achieved the wins.