Co-director / Consultant
Legal Support & Advice
legal advice, pharmaceuticals specialist
Human rights and the
Not computers that
have rights, but people who use computers
Basic rights are
in Bill of Rights Act – freedom of expression, freedom of
Current issues –
denial of service attacks, content filtering, terminating internet
access as a penalty for breaching copyright etc. Liability of
internet providers (both ISPs, phone providers, google, facebook,
twitter etc). Nature and enforceability of court orders relating to
denial of service attack in "meatspace" required thousands
of protesters physically blockading buildings etc, now days a single
hacker running a botnet can shut down major government and corporate
websites in minutes.
Is a denial of
service attack on a website a valid and legitimate form of protest? Is it less legitimate because one person can have the same impact that would have previously required large groups? What if the attack is carried out by a large group who are both aggrieved and internet-savvy?
Filtering of child
porn content is generally not very controversial in any country. However when
McDonalds decided to filter out any homosexual content from their
free wifi networks this sparked massive controversy - contrast between accepted and unacceptable deviation from the norm of sexual preference.
consequences – e.g. women unable to find information about breast cancer
due to "breast" being a blocked word.
filtering – Pakistan blocks around 12,000 websites that host
content that is considered blasphemous to Islam, however on
examination many of these are political content and blasphemy laws
are just being used as an excuse to block them.
shutdown happen here like it did in Egypt? Absolutely it could, NZ
government has the same powers but just chooses not to exercise them
so far. Chinese government is much more active, and for instance can
remotely shut down mobile account if you send a text message
containing a blacklisted word.
both new spaces for rights and freedoms that did not exist before,
but also bring new restrictions and new ways for rights to be
infringed. Competing rights must be balanced; e.g. freedom of
expression vs right to silence.
What do human
rights online mean? Right to communicate freely with people who
share the same political views, safeguards against oppression.
Should access to
the internet be a human right? Maybe, but surely it ranks below
other services like electricity (which is something of a
prerequisite for internet access!) Internet access is important, but
argument that to compare it to basic human rights like right
to food, shelter, freedom from arbitrary detention and torture,
detracts from the importance of these more basic rights. On the
other hand, people who can't read or write still have the right to
vote and have special provision made for them. Also in remote parts
of third world nations it is not uncommon that communities who are
self reliant in water, food, shelter etc and do not have guaranteed
access to these, will nevertheless have access to the internet via
mobile devices charged using solar panels or windmill power, and for
these communities internet access is one of the only benefits that
the modern world makes available to them.
How does the
internet protect or promote your rights, and how does it make them
easier to repress? The "right to be forgotten" is
increasingly becoming important online, especially with sites like
facebook storing permanent records of information people may not
have wanted posted online in the first place.
The existence of a
right in itself is nothing, unless there is a community that
supports the access to those rights. Saying there is a right to
internet access does not mean there is a positive obligation on
service providers to give internet access to people who are unable
to pay for it. In Finland where internet access is a human right
under law, this is interpreted as meaning anyone who wants access to
the internet should be able to get it, but this does not mean there
is a right to internet at home without paying for it, so long as
there is free internet available at the library.
What forums can
these rights and freedoms be debated in other than in the relatively
closed environment of Parliament? Most human rights are born out of
populist social movements, but online movements which are scattered
across the world and debated primarily on online forums only, are
much less visible than thousands of protesters camped outside
Most of the people
who have the power to change the rules, still often lack the digital
literacy to understand the issues and why they are important –
"how does file sharing affect me when I don't download
Should telcos be
allowed to traffic shape by slowing down or speeding up data
depending on whether people have paid extra to make their site load
faster, or if the data is "undesirable" in nature, like
No concept of
access to the telephone being a human right, or the right to go on
TV to present your views. So what makes internet different, just
because so much is done online now days. Note that intention of the
laws guaranteeing free local calls in NZ was to ensure that the
public had access to telephones, even though this was not enshrined
as a human right.
because frequency spectrums are a public resource, there should be
some degree of public access to broadcast mediums, and the internet
is essentially another broadcast medium like radio or TV - albeit with a lower barrier to entry.
Rights always go
with responsibilities – so what are the fundamental
Access to internet
can be framed in terms of accepted human rights, primarily freedom
of expression and freedom of association, so question may be not so
much whether internet access is a human right, but whether it is an
aspect of existing rights. In relation to freedom of expression the
human rights framework was written with the intention that it would
apply to new types of expression and advances in technology, which
implies that having online content blocked or taken down would be a
breach of freedom of expression already.
Debate needed not
so much about whether new rights are needed, but how the existing
rights apply to the new situations that now exist.
Internet is a
privately owned public space, so any effective regime will have to
involve some kind of public-private partnership.
Access to the
internet by disabled people is an increasing issue in this area,
given that much online content is not readily accessible to people
who are visually impaired for instance.
Human rights can
be subject to limitations where needed, but these must be for
appropriate reasons and only as small a limitation as possible –
national security is commonly used in western countries as an
excuse as this is difficult to argue with, but more controversial is
when rights are limited to protect religious sensitivities or
Forbidden knowledge: name suppression, filtering and censorship
is to take all the worlds information and make it universally
accessible and useful.
censorship – 2002 about 4 countries were actively censoring
internet, in 2011 there are 40. Google has services in around 150
countries, 25 of which are in countries with censorship, filtering
or blocking (especially YouTube).
automatic filtering of suspected child abuse sites is generally
accepted, but once filtering technology has been implemented it is
often then expanded to also block other unpopular sites, like
creep" is commonplace in other areas, for instance using
language from copyright law (which is a civil offence) and putting it
straight into criminal law (for enforcing suppression orders online).
government to just say that ISPs should be responsible, but often
they do not have the resources, or the appropriate expertise to
decide which sites should be blocked or not.
filtering software can be used, which can for instance block images
from a web page but still allow the rest of the web site to be
Users need to
understand that they can generally be tracked looking at or doing
whatever they are doing online – argument that proactive
monitoring of undesirable behavior is a more effective way of
stopping it than just blocking certain websites, instead the website
can be left unblocked, but everyone who accesses it and what they
view is logged and can potentially be punished (i.e. if they are
viewing child porn).
breaks expectations of how the internet works, the concept of
blocking access to some parts strikes at the heart of the online
business model. Governments should not be disrupting the engineering
that the internet is based on, and tracking down child pornographers
is more effective than just trying to block them from accessing
Filtering is seen
differently depending what is filtered and how, blocking websites entirely for
instance is seen as much worse than simply google choosing not to
index it (so it can't be searched for, but can still be accessed by
clicking on a link or typing in the url).
Filtering can give
a false sense of security, parents feel there is no need to monitor
their children's internet use as they expect the filter to catch all
Anyone with name
suppression has the right to go to any ISP or website and ask them
to remove the name if it has been disclosed – problem is where the
hosting company cannot be identified or is in an overseas
jurisdiction where court orders cannot be enforced. Also
suppression orders may prevent victims from being identified, but
this often does not prevent the identification of the offender, the area in which the victim lives, the school they go to etc, which can indirectly allow
them to be identified despite the suppression order - especially in small communities (such as much of NZ).
are filtered themselves in that search results are personalised and
depend on where the user lives, what they have previously searched
for, what kind of websites they frequent etc, but this does not
block access to any pages, it just means they will be lower down in
the search rankings if they are something that google doesn't think
is relevant or doesn't expect you will be looking for. So there is
no denial of access, rather they just make access easier to
information that they predict you will find useful. Also note that
user preferences can be changed to alter how google weights the
search rankings for you.
consequence – PhD students studying "spam" have found
themselves unable to gather data due to automatic spam filters at
various stages (i.e. both ISP and email provider) with no opt-out
option and no listing of what has been blocked.
Google will index
most legal content, but blocks content that is illegal in relevant
jurisdictions, so child porn is blocked everywhere, but for other
topics they will only be blocked if they are banned in the relevant
country (i.e. all pornography is blocked in many middle eastern
countries). So things that are not allowed in general, are also not
allowed on the internet. However one argument against filtering is
that it presumes everyone is likely to do things that are wrong or
forbidden, unless the government is watching them the whole time so
they can be punished if they transgress - a system that gives people the opportunity to "make mistakes" (i.e. access forbidden content) and then only punishes those who choose to do so, seems more consistent with the underlying values of a democratic society.
Idea behind name
suppression is to make the suppressed name or information as hard as
possible to find, judges acknowledge in practice that the internet
may make name suppression outdated, but if a suppression order means
that finding the suppressed name involves laboriously trawling
through un-indexed blog posts rather than simply typing it into
google, this is still broadly achieving its aim. On the other hand
judge acknowledged that other methods may now have to be used to
ensure fair trial, such as questioning jurors to see what they know
about the case (if anything) before any evidence has been heard, so
they can be excluded if they know things or hold beliefs about the facts in issue that would prejudice a fair
search query logs after 6 months, and users can view and wipe their own
search history if they don't want targeted ads or "shaped"
search results. However there is a general policy to give higher
rankings to newer information, hence why doing the same web search a
few weeks later may have completely different results – in theory
the old results should still be available but they may have moved so
far down the search rankings that they are very difficult to find.
Is the "right
to be forgotten" the new privacy? If an unfiltered web is also
transparent and permanent, this makes the concept of privacy much
more limited, and the issue of embarrassing information resurfacing many years after it was originally posted is far easier and more likely to occur when everything is indexed online. Particular issue with the increasingly younger ages that today's digital natives are signing up to social networking sites, forums etc - is it fair for adults to be penalised for things they said or did many years ago, when they were well below the legal age of adulthood?
The Internet as a
Gradual slide of
the internet towards corporate and government control
Concern is about
control of content, rather than infrastructure (which probably needs
to be controlled to some extent).
Don't want the
internet to turn into TV. Allowing freedom of choice based on
individual preferences is important. Anti-censorship, software
freedom, cultural freedom – founding principles of the internet
should not be allowed to be captured by governments or corporations.
revolution, e.g. Egypt and the "Arab spring". Not entirely
grassroots – US government interests have funded opposition in
order to try overthrow governments, so that US corporations can go in
and make money. USA has a history of doing this – helps to provide
internet infrastructure to groups within oppressive regimes to help
them overthrown their government.
revolution – Tor, bitcoin and bittorrent. Anonymous communication,
alternative currency based on cryptography, free file sharing that
is difficult to track. Silk road – people buy and sell illegal
drugs using bitcoin so the buyers and sellers are anonymised.
Wikileaks – has revolutionised the nature of "whistleblowing"
and the concept of official secrets.
Examples of things
that people have created which have revolutionary potential. Created
for the purpose of existing outside control structures imposed by
governments and corporations. Used by people who want to be
anonymous – governments do not like this as there is a presumption
that people who want to be anonymous are likely to be doing
something illegal, evading taxes, selling banned goods etc.
government be able to turn these things off? What can we do to
ensure that human communication remains uncapturable, by either
government or corporate interests.
What is your
bottom line. How far will you have to be pushed before you take
action – top 3 activities that NZers use the internet for are
banking, product information and paying bills. Political activism is easier in general here, so there has been less of a tendency for dissidents to congregate by preference in online forums.
Mainly adopted by
people who have motivation for using them – bittorrent became so
popular due to the slowness of record labels to develop systems for
distributing digital content at a reasonable price, Tor is used
mainly by political activists in repressive regimes, but in western
nations is often used by hackers, drug dealers and child pornographers.
Bitcoin is used mainly by people who want to sell banned or
restricted goods without being identified. So while these are an
essential counterbalance to the increasing tendency towards control
of the internet by government and corporate interests, they also
attract negative publicity because of how difficult it is to provide
free and unmonitored exchange without also facilitating illegal
The internet is
not separate from the "real world", it is just a means of
communicating between people who all live in the real world. So the
responsibility of governments to protect people in everyday life
also extends to the internet, but a balance must be struck between
this obligation to protect people, and the creeping tendency to
restrict freedoms by protecting people from themselves for ideological reasons, when they
neither want nor need protecting.
The three key wars
of ideology – war on drugs, war on terror and war on (some kinds
of) pornography are all fought online to as great an extent
as in the "real world" – however in the online world
where there is free exchange of information, wars on ideology
struggle to sway public discussion. All three of these "wars"
are largely pushed by the religious right-wing elements in the USA,
who are threatened by the largely liberal left-wing bias that
pervades much of the internet – so the internet itself is seen as
a tool that is aiding "the enemy".
important for legitimacy, but this can be hard to balance with
anonymity – example of bitcoin where both the buyer and seller
have identity concealed by encryption, but the actual transfer of
funds is fully transparent, so if you know your own encryption key
you can always track where your money is going.
change is dangerous especially when there is no clear plans for what
happens once "the dust settles" as it were. A better
approach is often evolution, where a stepwise and progressive change
happens over time with extensive public consultation and feedback,
so dramatic revolutionary change and unintended consequences can be avoided.
Huge amount of
information available, but a general lack of information literacy,
people often lack insight into where the content they are reading
comes from, and hence what limitations there may be on its validity,
or what inherent bias may be present. Similar problem is the
tendency of people to seek out and read things that agree with their
pre-existing views and beliefs, so people tend to ignore evidence
that doesn't fit their world view and consequently always feel like
what they read online supports what they believe already.
is a good thing, between both individual people and between people
and governments. Conflicting principles between openness and
anonymity, the more that people can communicate in a way that
mirrors the way the internet works, while conversely bringing their
real world views and ideals onto the online world, the closer the
two mediums will come.
Intellectual property –
toll gates on the information highway
Some might say
that copyright is redundant on the worlds largest copying machine,
but toll gates are often imposed by those who have the power to do
so, impose additional costs on everyone else for the profit of
Should NZ have a
fair use exception to our copyright law
Comes from US law,
an exception to copyright infringement, based on the purpose and
character of the use, the nature of the work, the amount reproduced,
the effect of the use on the value of the copyrighted work,.
Judge made law,
from case law not codified in statute.
NZ does not have a
broad fair use exception, but rather a list of very specific
exceptions for news reporting, educational uses, libraries,
transient reproduction etc.
Would fair use be
a good way to resolve copyright concerns online.
NZ copyright act
is next up for review in 2013.
Lack of codified
definition in the US has led to problems with interpretation of fair
use principle, so is not a quick fix for everything.
Using excerpt from
video posted on YouTube can give rise to conflicting fair use
claims, because YouTube is governed by California law not by NZ law.
So jurisdictional conflicts between different fair use regimes make
them hard to reconcile.
Difficult to draw
the line, and many cases where something that was fair use under US
law would not fall under one of the specified fair dealing exceptions
under NZ law.
Sense of fairness
– critical commentary and education generally accepted as being
fair use, other areas may be more contentious. Also problem with
enforcement – copyright over music, books etc is different now
that they can be copied digitally. Some argument that private
non-commercial use of all copyrighted content should be permitted,
because to effectively and fairly prevent it would require living in
a police state.
definitions in many areas – transient copying is allowed, i.e.
videotaping a TV program so you can watch it later is permitted
under copyright law, but no indication of how long you can keep it
for – if you have a program recorded on VHS tape from many years
ago that you never got around to watching, is this still ok because
you never watched it yet? How about if you have watched it once or
twice, at what point should the copy have to be destroyed? After one
time of watching it? No case law or statute to clarify this kind of
issue in most areas.
Point that 25
million downloads of a music track does not mean 25 million lost
sales – how many of those downloads would have occurred if people
had to pay for it, as this would be a more accurate measure of how
much potential profit has been lost – if content is only consumed
in the first place because it is free, then how can this be claimed
to be a loss.
If content was
never available for sale in NZ, how can there be any loss to the
copyright holder if the consumer would never have been able to buy
it legally – indeed if the copyright holder sues, then this is a
windfall profit as they do not have to pay distribution costs –
argument that loss should be calculated on the basis of the cost of
a legal copy in that jurisdiction, and if legal copies are not sold
then the cost is zero.
On the other hand
downloading entire works cannot be fair use because it is copying
the entire work, not just an excerpt. If you don't fall under one of
the specified heads of exception in NZ then there is no general fair
use provision. No "parody and satire" exception in NZ,
unlike many overseas jurisdictions.
notices only apply in the USA and have no jurisdiction in NZ – but
note that people visiting the US have been arrested at the border
after ignoring DMCA notices sent to them while living overseas.
copyright regime would be highly desirable, but trade agreements are
integrated into domestic legislation by governments individually, so
even when they all agree at the conference, this does not mean that
the laws passed when they get home will be identical.
to be made between the letter of the law and the way it is actually
interpreted and enforced – people who do things that seem like
fair use are unlikely to be prosecuted even if it falls outside NZ
law – increasing tendency for people to assume that US law they
know from TV also applies in their own jurisdiction.
and education needed for the public, as most people have little idea
of exactly what the limits and exceptions of copyright law are.
Lobby groups in
the US are increasingly dictating the terms of copyright law and
enforcement regimes, even in countries overseas like NZ. For
instance the provisions in NZ's new copyright law to cut off peoples
internet access for file sharing, were directly as a result of
overseas pressure and would not have been passed by NZ MPs on their
own account, question of how far commercial property rights can
trump fundamental human rights (which internet access is
increasingly accepted as such).
On the other hand,
if internet companies can cut off service for not paying your
internet bill, this shows that while internet access may be a human
right, it is still one you are expected to pay for!
Fair dealing laws
in NZ mean that private photographs which are released into public
domain can be freely used by any media organisation without
attribution – copyright law at present favours large corporate
interests over the interests of individual content creators who have
not chosen to license their work to a large entity.
If you buy a
physical book, you can lend it to as many people as you like and
keep it for as long as you want, but many ebooks sold now days have
built in limitations that disable access if it is copied too many
times – even if this is you copying it between your own devices,
which means that digital copies have a built in limited lifespan
even though they are sold for nearly as much as physical paper
copies of books.
countries have different needs and this is an argument against
universal copyright law – note that both US and european countries
had no IP law until the 20th century and made huge
profits in the 19th century from copying other peoples
ideas – so why should the modern USA be able to dictate its
business models to third world nations who can benefit from the use
of copyrighted content but could never afford to pay US prices.
US congress is
largely funded by US corporate interests who are committed to old
business models, so are not an appropriate source to be drawing
international IP legislation from. Existing copyright and IP laws
were written long before the internet was conceived of.
The internet is a
giant copying machine, so stopping people copying things online will
achieve nothing but criminalising a progressively larger proportion
of the population. Copyright in its current form is redundant and
needs to be rewritten from the ground up to retain relevance in
todays world – but this could take decades to be accepted by
governments by which time technology will have progressed still
everyone can now be a broadcaster, so should be charged similarly –
i.e. If you share copyrighted content, then you should have to pay
for the amount of people who download it off you, but at a very low
rate like 0.01 cents per download (i.e. equivalent to the ratio
between radio broadcasting license fees and the actual number of
sometimes have other restrictions attached that are not present in
physical copies, for instance not being approved for use in certain
jurisdictions – and users may not find this out until after they
have paid for it with their credit card and received a downloaded
copy. These restrictions are not present in illegal copies, so if a
consumer can get a functional copy, that is not sold in their
country, and for free, what point is there in paying for a
legitimate copy if this copy does not work in the consumers country
agreements that you sign up to at a click when purchasing content
covered by digital rights management software are extremely long and
complex, and the vast majority of consumers do not read or
understand them. If this kind of control is required then it should
be made more understandable to consumers so they know what they are
actually agreeing to when buying the product.
How much do
consumer rights to a product that meets its advertised description
etc, balance with the restrictions imposed by digital rights
management etc – i.e. should a consumer be able to expect that an
ebook or downloaded mp3 will have the same functionality as a
physical book or CD. If not, why not? Even traditional books can be
photocopied, but this has not caused publishers to make books that
decompose after a certain number of readings.
overseas for NZ to change its laws to cover things which are banned
overseas (i.e. in the USA) – problem is that US copyright law has
become the strictest in the world, expanded the length, breadth and
duration of copyright with 99 year terms etc.
interpretation of copyright has criminalised for instance sampling
in hip hop music – and selling the resulting records would
constitute commercial use of the copyrighted content, subject to
severe penalties – even if the track sampled is no longer
copyrighted in NZ, the longer US copyright term may mean it is still
has been proposed as a viable alternative, content can be freely
copied (so long as it is not used commercially in most cases), but
must be attributed to the creator.
Copyright may be
outdated, but it is still important, so moving towards new systems
like creative commons is a better approach than just saying we
should get rid of copyright entirely.
Copyright law is
already unenforceable in the vast majority of cases, especially
where there is no commercial profit on the part of the infringer, so
we need to move to a new model so that content creator's rights can
Law of the net –
in the 90s when
the internet was starting up, was dominated by libertarian ideas,
freedom of speech and information etc
calls for governments to introduce regulation, to enforce laws over
child porn, copyright, hate speech etc – also digital rights, net
change social discourse – compare to printing press, was used both
for government propaganda and independent counter-argument
gradual creep of
trying to bring some order to a chaotic and distributed environment
sat up and taken notice of internet / social media as democratic
tool after seeing recent events in Egypt etc
effective tool for people to unite to bring social change – flip
side is that governments now have free access to discussions among
dissidents etc which previously they could only have obtained by
interrogation and torture
Compare to first
english translations of bible, "unofficial" translations
from latin contained added ideas considered heretical by the church,
spurred production of "official" translation
states and the law would become involved in the net sooner or later
as the alternative is anarchy – this may be generally a good
thing, but most of the internet's potential capability is still
unexplored, so precautionary principle is important, trying to
prevent people using the intenet to challenge established business
models is short sighted – risk of using the law to protect the
past at the expense of the future – imperative to policy makers to
not screw it up!
globalisation of capital – no longer controlled by governments but
instead has self regulating system. Internet and law – whose law
is it, no single national government can be the source of authority
or legal jurisdiction. Money and capital still move to places where
laws to control them don't exist, so does the internet. Makes
internet inherently challenging to govern. Not so much about law as
about new norms of global behaviour in this new environment. - i.e.
"trolling" developing as an unacceptable behavioural norm.
If people currently in power are challenged by the new norms, they
may try to stop them developing, but are unlikely to succeed.
by the major players (microsoft, google etc) to call for regulation
themselves in the wake of hacking attacks, lawsuits etc. Not just
about the governments trying to control things, corporations are as
well, but individuals also need their rights protected as well as
protecting corporate profits.
Regulation of the
internet may not come through legislation and democratic discussion,
but rather through closed discussions of trade policy which
restricts what we can do, growth of the internet and evolution of
Law is not
guaranteed, subject to cost-benefit considerations, "good
enough for now", as is the internet, so the law will morph to
adapt to this environment given time – but will it evolve fast
enough to keep up. Be careful what you ask for, because the more
people call for regulations, the more politicians will be motivated
to try regulate, often in a heavy handed and poorly thought out way
that may hinder more than help.
regulations apply to most criminal acts carried out online, just
changes the venue and way the crime is committed. Legislation must
follow innovation and be accompanied by social change and
technological fixes, can't do the job by itself. Some new laws
introduced however, e.g. s 248-252 of crimes act, misuse of a
Internet is the
latest in a long stream of communication technologies, preceded by
printing press, radio, newspaper etc. Difference with the internet
is that it is now cheap and easy and international for ordinary
people to get their message heard and talk with other individuals on
a one-to-one or many to many basis, rather than centralised
propagation of message. Battle between the future and the past, the
past will always try to control the future because the past is
comfortable in its incumbency, so look around and see what current
models are threatened – repressive governments, publishers, music
and movie labels. However it is the state which imposes regulation,
so threats to the established order and current law are what will
spur the biggest responses.
Look for who
benefits, cui bono – often it is the governments in charge, but
more often it is about money, corporations who will try to protect
their money and ongoing income stream.
Need to connect
online and offline regulatory systems – look at bloggers and human
rights activists being arrested overseas to show how governments are
monitoring activity online to control people offline. Governments
also try to control the internet by ordering companies to take
action, e.g. shutting down cellphone networks in Egypt revolution,
and this makes internet companies nervous as government approach is
often simplistic and poorly thought out.
opinion plays in influencing governments – interplay of the
internet and traditional mass media in swaying public opinion.
Most old world
laws apply remarkably well to the internet, better than might be
expected – fair trading act and consumer guarantees act needed
very little modification to be applicable to online trading, which
shows flexibility of existing law under many circumstances. Tendency
to generalise on how the internet impacts on our daily lives, with
regulation of the internet as a whole, but these are separate issues
despite being closely linked.
Lots of law
developing in this area – copyright, domain names, jurisdiction,
criminal law – but these are mostly existing areas which are just
being adapted to fit internet issues.
applying to internet activities which would not have been
criminalised under traditional law, or at least would be much harder
to catch people. So in some areas the internet has made it easier
for people to be prosecuted (for banned pornography for instance)
issues requires open discussion, yet we are seeing increasingly
closed door discussions, governments discuss planned laws with
corporate interests and international trade groups, then only open
it for public discussion once the law is largely already drafted and
only minor further modifications will be contemplated.
need to be given a greater say in how internet laws are written, at
the moment they are largely ordered around by governments who may
not fully understand the issues, often at the prompting of overseas
corporate interests with undisclosed agendas.
corporations may be able to exert particular influence outside of
traditional legal channels – e.g. Apple could potentially censor
the internet content available to iPad users at its own discretion
without having to tell anyone what it is doing, or breaking any
Quality of the law
is the issue.
Two more cases involving Twitter in the news today that are worth mentioning;
Firstly, one of the first ever suppression orders has been issued by a court in the UK that names Facebook and Twitter specifically as forms of media on which the publication of a particular person's name is suppressed - this seems to be partly a response to recent uses of Twitter to breach suppression orders obtained by celebrities, allegedly in many cases to prevent embarrassing personal information from being published in the media. This may be of limited success given the international nature of Twitter, but it certainly shows that social media networks are being taken seriously by the judiciary now days.http://www.stuff.co.nz/technology/digital-living/5007982/Judge-issues-gag-order-for-Twitter
Second is an interesting case where someone is suing for the rights to control a Twitter feed. Essentially a teenager in California started a Twitter account which became wildly successful, attracting over 300,000 followers. Running the feed became a full time job, so he hired someone else to help out (it is implied he was making money off the Twitter feed somehow, though this is not explained in detail). The assistant / partner then little by little took over the feed until the original "owner" had been virtually excluded, prompting the lawsuit. To complicate matters, the assistant had indisputably done a lot of valuable promotion work, setting up an associated website and YouTube channel, and expanding the follower base from ~350,000 to 1.9 million followers, as well as claiming that the original "owner" of the feed had barely made a tweet since hiring the assistant to help out.
So the question mainly rests on who owns the trademark to the "brand" constituted by the Twitter feed and its associated image, name etc. However there is some interesting legal analysis about the copyright status of tweets in general, with legal opinion that (i) tweets are so short by nature that they struggle to reach the length at which a work would become copyrighted, and (ii) because of the importance of the "retweet" function built into Twitter, this implies that the nature of the service involves an inherent waiver of normal copyright rights, in that retweets would otherwise be breach of copyright, and the fact that they are so central to the Twitter service means that normal copyright conventions must therefore not apply. http://www.stuff.co.nz/technology/digital-living/5009345/Twitter-kid-sues-as-rich-tweet-stream-flows-away
And just for something a bit more light hearted, check out this innovative use of social media. A team of researchers surveying fish populations in rivers in Guyana was faced with the challenge of identifying and counting the 5000 different fish they had caught over 2 weeks in the jungle. Running out of time before they had to fly back to the US, the researchers had an innovative idea - why not crowdsource the job? So they uploaded photos of the 5000 fish to Facebook, and in less than 24 hours their network of friends (which of course given their area of interest included many expert fish scientists) had identified almost every single one. Has to be one of the most productive and positive uses for Facebook I've heard in a while!!http://www.eurekalert.org/pub_releases/2011-05/uots-csr051311.php
Just reading some of the comments posted overnight while we wait for the debate to start over again, and several more points worthy of note. First, the way they have rushed this through under urgency with the Christchurch emergency measures is deplorable and looks really bad regardless of your views on the content of the bill - circumventing normal democratic process is one thing when it comes to actual emergency measures (like say, approving funding to fix broken drains or provide emergency housing), but when it comes to a controversial law that incited protests outside Parliament last time it was debated, well this just looks sneaky and underhanded. Indeed it may backfire spectacularly in that trying to rush this bill through "on the down low" may increase its public profile substantially, even among people who would usually not be too concerned about this issue.
Second, as National's Katrina Shanks inadvertently highlights, what about the "free wireless zones" recently set up in the central city of several major centers, such as Wellington? A business owner who provides free wi-fi commented that they will now have to put complex filters in place to prevent piracy and are still worried they could be liable if the filters are bypassed - so does this mean that the city council will be liable if people download infringing content through the free wi-fi they provide?
Lastly I'll leave you with this thought. The well known anti-piracy advertising campaign by the movie industry uses a tag line which can be paraphrased as "if you wouldn't steal a car, then why would you steal a movie?" Indeed. But if you could go up to a car and wave a magic wand that caused an identical copy of the original to appear next to it, complete with fuel and keys, and without harming or in any way affecting the original version - how many people do you think would choose to "steal" the copy of the car then?
Let's extend this analogy. Say the car is a taxi, and now because people are driving round free copies, not so many people are hiring the taxi, and the driver is losing out on fares. Well this does seem unfair on the taxi driver. But then what if we learn that the taxi driver has grown rich by charging extortionate fares to customers that are completely disproportionate to his operating costs, while exploiting a succession of struggling car manufacturers who receive on average only 2.3%
of the fare, and in many cases give away free cars themselves to promote their brand and encourage future sales? The picture starts to become a lot murkier. The issue of copyright in the digital age is a prime example of how changes in technology can in turn change society. At some stage both big business and the legislature will have to accept that the best way to compensate content creators and rights holders today, is perhaps not the same as it was in 1709 when the first copyright law was passed in the UK (on which ours is based, and has changed relatively little in its basic principles).
A post on Twitter by an MP whose party voted for the bill illustrates how poorly this issue is understood by our politicians. I think she genuinely does not realise her own hypocrisy!
So several points come to mind. Firstly, this seems to be quite biased towards the interests of rights holders who are large companies (and likely based offshore). If the burden to pursue action falls on rights holders, then only those with substantial resources available are going to be able to spend time trawling the torrent sites for infringing copies of their IP and track down the identities of downloaders. Especially when you consider the fee payable to the ISP for every infringement notice they send out, and the paltry percentage of royalties actually received by the actual author or artist (as opposed to their publisher or record label), this is clearly a process that will be used much more by big multinationals than by the struggling content creators whose interests this is supposedly protecting.
In answer to my question about how downloaders are identified I have been told that the way many people have been caught downloading copyrighted content, is that the rights holder will upload it on to torrent sites themselves, then just track who downloads the "bait" torrent and record their IP address. Now this seems a bit like entrapment to me, not to mention surely this would mean the rights holder would be in breach of the law themselves? I don't see any exception in the law allowing the uploading of content on to torrent sites by the rights holder in order to tempt third parties into downloading it illegally. Or the other conclusion could be that by voluntarily sharing their copyrighted content online via public torrent sites, the rights holders are choosing to waive their copyright themselves, so no breach has been committed by either party!
A third point is of course that this law will do nothing to prevent file sharing by those who choose to do so. Our politicians seem to forget that countries like China have far more restrictive internet restrictions than would be contemplated here, and have spawned large underground communities of hackers who for years have been developing software to circumvent exactly this kind of monitoring of users. A variety of services are available that will encrypt the user's data stream and bounce it between multiple nodes all over the world, making identification of an individual users IP address very difficult without devoting extensive resources to every single case. Of course many people will get "busted" by this law change, but who will those people be? Obviously if someone is downloading a file, they are demonstrating an interest in the content, and is a potential consumer that might buy it given the right circumstances...so how is it in the best interests of rights holders to selectively punish their core target market? The original uploaders that seem to be the primary targets will generally be sophisticated users operating through anonymising software that makes identification impractical, so the people getting caught will primarily be a bunch of young people downloading the latest Hollywood movie or popular music track - usually on an internet account that is actually in the name of their parent, school or university!
This just doesn't seem like good business sense. I tend to agree with Claire Curran's comments that this seems to be largely an attempt to cling on to outdated business models, driven by companies who might be better advised to move with the times. How hard can it be to set up a system so that domestic users pay a slightly higher bill for their internet, and ISPs just pass on the appropriate fee to the rights holder? After all it seems that some rights holders are uploading their content on to torrent sites themselves already, so why can the IP addresses downloading these torrents not simply be charged the $5 or whatever it would normally cost for a legitimate downloaded copy, added on to their internet bill, instead of being chased down and threatened with a $15,000 fine - obviously this would not work so well for school or university downloading, but using their systems for such purposes is already meant to be forbidden! Any system capable of tracking down users downloading copyrighted content and sending them infringement notices, would be equally capable of automatically billing those users a reasonable fee for the copy instead, and surely this would seem preferable to rights holders going to great expense to effectively alienate the very people who they want to buy their products...
I am reminded of the famous quote attributed to philosopher Baruch Spinoza;
Some interesting viewing on parliamentary TV this evening watching the debate of the Copyright (Infringing File Sharing) Amendment Bill, particularly liked the insight from Green Party MP Gareth Hughes and Labour's Claire Curran and Jacinda Ardern. Debate has now closed for the night, but from the way the voting has gone it looks pretty certain to be passed.
"All laws which can be violated without doing any one any injury are
laughed at. Nay, so far are they from doing anything to control the
desires and passions of men that, on the contrary, they direct and
incite men's thoughts the more toward those very objects, for we always
strive toward what is forbidden and desire the things we are not allowed
to have. And men of leisure are never deficient in the ingenuity needed
to enable them to outwit laws framed to regulate things which cannot be
entirely forbidden... He who tries to determine everything by law will
foment crime rather than lessen it."
and from comments on the 3 News article, seems other people have had the same ideas already...
And from comments on the Stuff.co.nz
Well well...looks like the Christchurch earthquake is being used as an excuse to rush through all sorts of other legislation under urgency also.
Now whether this gets through or not this time, it seems fairly inevitable that "official" banning of file sharing is on the cards sooner rather than later.
Some interesting points to note as compared to similar laws overseas; this still does not criminalise file sharing, it remains a civil matter. Quite rightly too, as of course copyright infringement represents loss of anticipated profits rather than deprivation of actual physical property from the rightful owner - the actual cost of a digital file copy is basically zero, so this is not the same as stealing intangible goods like power or toll calls. The main new features that go beyond the original copyright act are that it makes it somewhat easier for rights holders to take action over infringement, there is a maximum penalty set at $15,000, and offender's internet access can be blocked for 6 months for repeated violations. So obviously the NZ government is rejecting the view taken in some jurisdictions that internet access is a basic human right. The s 122MA also seems quite a departure from standard legal practice in that it sets a basis of "guilty until proven innocent" for any enforcement action that must be rebutted by the accused, which until now has only been the case in very rare situations, involving serious crimes...file sharers are deemed to be on a par with drug dealers, child pornographers and terrorists it seems!
The main issue I can see is that of enforcement - specific details need to be provided of which copyrighted work was uploaded or downloaded to and from which IP addresses, and what date this took place on. It is unclear how rights holders are meant to be detecting the infringement, and liability of the ISP is limited so long as they send out the infringement notice in timely fashion. However the ISP is able to charge costs to rights holders for taking enforcement action estimated at between $14 and $56 per notice, so this means it will cost a lot more to the rights holder to take action, that what they would have received for selling legitimate copies of most individual music or video files. Still, especially with the limited liability of ISPs, it is hard to see how this would not be defeated by strong encryption, or even just proxy IP address services.
Also there doesn't seem to have been much consideration of shared IP addresses despite this being a main point of objection when the bill was debated in November...if this is strictly enforced against the IP address that the infringement occurred from, then we could see the internet accounts blocked of universities, high schools and libraries up and down the country! Or conversely if enforcement is strictly limited to the account holder, then there could be a great deal of legal argument about whether parents should be expected to be aware of what their kids are downloading on the home internet account at all times, or whether account holders are legally required to secure their networks so third parties cannot download infringing content through unsecured networks without the account holder's knowledge.
Overall this is a reasonable effort to address what is clearly a widespread issue, but it reads like the politicians and drafters were a bit out of their depth when it comes to how the technology actually works in practice, and what this means for trying to cover the area with legislation. If this passes, then expect lots of case law to resolve the ambiguities, and no doubt an amendment in a few more years time once they have identified all the problems with this version!