Repeat infringers: reflections on the New Zealand internet blackout

An internet blackout¹ was called (to begin yesterday) in response to new laws² passed last year in New Zealand that would impose a condition on internet service providers³ to have a policy to deal with repeat infringers of copyright. While I agree that the new law is not well thought out or fit for purpose, much of the campaign against it overstates the position considerably.

For example I was told today that the new law meant:

if anyone alleges that you are using copyrighted material and you don't remove it on the basis of an unsubstantiated allegation your ISP MUST disconnect you.....

This is just plain wrong.

What's wrong with the repeat infringer law?

The offending provision states:⁴

92A Internet service provider must have policy for terminating accounts of repeat infringers

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

As a lawyer reading this section there are some obvious howlers.

There might not be accounts to terminate

I am struck by wondering what "accounts" the section is talking about. You should know that an "Internet service provider" (I'll use "ISP for short) is defined elsewhere⁵:

Internet service provider means a person who does either or both of the following things:

(a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing:

(b) hosts material on websites or other electronic retrieval systems that can be accessed by a user

So an ISP means someone who provides services on the internet as well as someone who provides the services of the internet. An ISP includes me (my wife gets to use the connection I pay for), my mother (she lets me use the internet when I visit her), Starbucks, public libraries, schools, anyone who hosts a website and so on.

Nothing in the definition of ISP says what an "account" might be. My wife doesn't have an account with me, customers of a cybercafe don't have "accounts" in any meaningful sense with the cafe and so on.

In short a classic legislative drafting error - an unstated assumption.

What happens if an ISP doesn't have such a policy?

Its all very well for a law to say you have to do something, but what if you don't? There appears to be no mention in the legislation. The equivalent rule⁶ in the US is a precondition for being able to take advantage of one of the DMCA's copyright safe harbors⁷. My guess is that the courts will decide that a copyright holder could sue for damages for breach of statutory duty caused by a failure to comply with s.92A. Much fun for lawyers, but a waste of time for the rest of us.

Does this policy have to be in writing?

I have a lot of policies, but I don't necessarily write them down. Since I am an ISP can I comply with this merely by having a clear idea of what I would do if I did have any "repeat infringers" using my services?

What's wrong with the protest?

So if I don't like the law, what's wrong with the protest against it? The problem is that much of what is being said is just plain wrong. I worry that will create just the kind of climate in which ISPs do the wrong thing (see above).

The petition statement suggested by Creative Freedom in NZ states

I don't want Guilt Upon Accusation laws that will force the termination of internet connections and websites without evidence, and without a fair trial.

What's wrong with this?

ISP's do not have to act on unsubstantiated allegations

There's nothing to require ISPs to do anything without evidence and/or a fair trial. S.92A does not say that an ISP cannot adopt a policy that it would only disconnect those for whom there has been a finding (by a court) that they had infringed copyright on numerous occasions using the ISP's facilities.

Now I suspect that such a policy might not be reasonable. A reasonable policy probably ought to build in a situation where the ISP knows or (more likely) has very strong evidence for the infringement which has not been contradicted by the alleged infringer.

ISP's aren't forced to terminate anway

There's no "force". S.92A specifically says that the policy must provide for termination "in appropriate circumstances". An ISP reasonably have a policy that it would not be appropriate to disconnect the accounts of the vulnerable, schools, hospitals and so on.

No guilt by association

The definition of infringer refers to the person doing the infringement not to anyone else. If a visitor to my house uses my wifi connection to repeatedly infringe copyright then it is they, not I, who is the infringer. There is no "Guilt Upon Accusation" principle built into the new law.

Clearly some of New Zealand's major commercial ISPs agree with the first two of these points. An industry association has proposed⁸ a (rather complex) draft policy which takes them into account.

The policy envisages that the ISP will receive notices from rights holders and pass them on to its customers. If these are not objected to (for example by the customer denying infringement) 3 times in 3 different months then a final warning is sent and, after that, a termination notice. The policy also envisages that the accounts of the vulnerable or essential service providers will not be disconnected.

Conclusion

There is nothing to stop a rights holder obtaining an injunction against an ISP to force it to disconnect a repeat infringer. Such action will cause the ISP inconvenience, expense and some legal risks if they refuse what is asked for. I suspect that many ISP legal departments may take a cautious view so that an aggressive rights holder can probably force any but the most robust ISPs into taking action against its customers who may be quite innocent.

Much better (in my view) either to give ISPs better protection in those circumstances so they aren't tempted to take the easy way out, or to permit ISPs to use policies they have devised for their own (not the rights owners') to avoid the need for injunctive relief.

Section 92A appears to be trying to do the latter, but in addition to the problems with it I have already explained, there's no connection between the policy and protection of the ISP from aggressive legal action from iSP's⁹.

The truth is the status quo is no good. A better system of ISP protection is needed for all our sake's (even those of us who are not ISPs). The repeat infringer policy is daft, and broken but not in the ways and for the reasons Creative Freedom suggest. Lets have some sensible debate about it please.

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1. For more details see the creative freedom website ↩

2. The new laws are contained in the Copyright (New Technologies) Amendment Act 2008 and amend the existing Copyright Act 1994 ↩

3. As I explain, a surprising number of people are "Internet Service Providers" within the meaning of the Act. ↩

4. Section 92A of the Copyright Act 1994 which is inserted by S.53 of the 2008. The section is not in force yet because an order in council is needed to bring it into force. ↩

5. S.2(1) of the Copyright Act 1994, inserted by s.4(2) of the 2008 Act ↩

6. 17 USC s.501(i) ↩

7. I'm British so I say "harbour" but when talking about US legislation I spell it their way. ↩

8. The Telecommunications Carriers Forum are consulting on a proposed Copyright Code of Practice to comply with s.92A. ↩

9. Readers who have followed the discussion of the "repeat infringer" law in the United States will have a strong feeling of deja vu, with the difference that far from appearing to have learned from the lessons of the US, the New Zealand law actually appears to be rather more poorly drafted. ↩