Three-Strikes Copyright Law In NZ Halves Infringement

Bismillah writes "The 'Skynet' copyright act has been in effect for six months in New Zealand and rights holders reckon it halved the number of infringements in the first month. Even so, they're not happy and say over forty per cent of Kiwis continue to infringe online. The fix? Rightsholders want the current NZ$25 infringement notice processing fee payable to ISPs to be dropped to just a few dollars or even pennies, so that they can send out thousands of notices a month. ISPs want the fee to increase four times instead, to cover their costs. Unfortunately, the submissions for the review of the infringement notice fees are kept secret by the government."

Comments

Pays to Be Sneaky

[rueger]

New Zealand and rights holders reckon it halved the number of infringements in the first month.

Or just as likely, the heaviest downloaders just found better ways to fly under the radar. If "success" is measured by a drop from eighty percent to forty percent of users "stealing" content, I'd say it's time for the Industry to admit total defeat.

Re:Pays to Be Sneaky

[Sulphur]

New Zealand and rights holders reckon it halved the number of infringements in the first month.

Or just as likely, the heaviest downloaders just found better ways to fly under the radar. If "success" is measured by a drop from eighty percent to forty percent of users "stealing" content, I'd say it's time for the Industry to admit total defeat.

Its hard to spot a Kiwi on radar.

Re:Pays to Be Sneaky

[Anonymous Coward]

My completely anectdotal experience living in NZ is that people just found other ways. Seedboxes especially may have actually made the industry's problem worse as they're much faster for P2P connections than local NZ broadband connections have ever been and as such the volumes achievable are higher. For example I used to hear people talk of only getting averages of 200-300Kbps with P2P using the cheap ISP supplied modems, but they can get 2Mbps+ over an HTTP connection to a seedbox, and that seedbox itself might achieve 10MBps or more.

There was a 10% drop in NZ internet volume when the law came into effect, but little mention of the numbers since.

So yes, I'm inclined to believe they are seeing less infringement, but in reality there's likely more than ever.

Re:Pays to Be Sneaky

[digitig]

My immediate reaction on reading the title was "Shouldn't it be 'Three-Strikes Copyright Law In NZ Halves detection'"?

Re:Pays to Be Sneaky

[anubi]

I guess what bugs me is something like policing copyrights of publicly available information, especially music is almost impossible to enforce.

Rightsholders are quick to privatize their profits, however they are eager to socialize enforcement costs.

I do not want to get into a shouting match on whether or not it is theft to copy a song. Technically, I think it is, but practically, its like trying to enforce a clean mind when seeing porn.

It stretches honesty when one is hungry and sees his neighbor's apple tree, knowing the trunk of the apple tree is his neighbor's property, yet the fruit is hanging in his yard, even dropping on his lawn, and only some law, passed by some senators lobbied by the tree owner, says he can't pick the apple off his lawn and eat it, or even take a picture of it.

There are some things which are are very difficult to enforce... and tend to function not as a deterrent, but as a starting place for learning to disrespect obedience of law. I see this kind of law as a prime example of this.

Like prohibition, trying to enforce law like this does more harm than good, as it gets people started at a very early age to have no inner respect for law, obeying it not for the common good, but only for fear of punishment if caught. It does not foster respect for law, instead it fosters a sense of accomplishment for finding creative ways of disrespecting the law.

Re:Pays to Be Sneaky

[Sulphur]

given that the little buggers can't fly, its kinda hard to spot them on radar

They fly at mach 6 and over a hundred thousand feet. They can pull 40 g in a turn, and they are being trained to protect the planet from spacecraft

Their radar cross section is less than a female mosquito's antenna. They also make a great sandwich.

Re:Pays to Be Sneaky

[tftp]

Like prohibition, trying to enforce law like this does more harm than good, as it gets people started at a very early age to have no inner respect for law, obeying it not for the common good, but only for fear of punishment if caught.

I'm afraid you are about 50 or 100 years (if not more) too late. I don't know how it is in NZ, but in the USA respect for the law is not even a theoretical concept anymore. Widespread violations cannot be detected and the law enforced; this leads to loss of fear of punishment. You do not need to go too far to see proof of that. Everyone drives faster than the speed limit allows and the police does not even bother stopping anyone unless they are way over the limit. People jaywalk with no care in the world; robbers rob 24/7 stores as if it is their personal ATM; people park under signs "no parking", have sex in public parks, set up camps in public places, use drugs, and take dumps on police cars. What rule of law are you talking about? It's pure anarchy, with occasional firefighting done by few LEOs.

There is no law to respect either. Over the years new laws accumulated up to a whole library of books - some with laws and other with their interpretations. Most people quite reasonably think that the law is not protecting them. And how it can be, with laws against "disorderly conduct" and with people arrested for "resisting arrest" or for filming police or for taking photos of cities? On the other hand, real criminals (petty or not) are in and out of jail faster than you can keep track of them. The police is most certainly not your friend; LEOs are not interested in helping you and they have no duty to help you. They might kill you, though, if you give them half of an excuse, because safety of one officer is more important than ten dead bodies of the rabble.

With this whole train wreck continuing downhill with ever accelerating speed we will see more anarchy and fewer places where an nonest person can safely walk around. Downloads of music are just a minor blip on the radar of widespread lawlessness.

Re:Pays to Be Sneaky

[GameboyRMH]

I was just thinking this morning about an incident many years ago when a rich old dude who owned MS stock lost his shit at me when I talked about the practical necessity of pirating a copy of Windows as a broke 3rd-world teenager, calling me an entitled brat who didn't deserve to have it because I couldn't pay for it (keep in mind that in those days there was really no other practical desktop OS). I should simply have refrained from using any computers to stay within the rules, he argued in effect.

I thought to myself, that is one of the most ridiculous and silly things that I have ever experienced. This rich old man blasting a poor kid for subverting the rules of the silly game that made him rich, in a way that harmed exactly no-one. But it shouldn't be funny, his worldview was monstrous, horrible, a level of hyper-selfishness that transcends physical wealth and extends to symbolism.

To think that I had enough respect for that guy that I didn't respond...I should have told that disgusting man to go fuck himself immediately.

Begpardon?

[Tastecicles]

It's not rights holders doing the complaining, it's the industry associations (read: RIAA/MPAA or NZ equivalents), who themselves hold no copyrights apart from their corporate logos.

To them, I refer them to the response given in Arkell -v- Pressdram (1971):

We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.

Re:Begpardon?

[bmo]

Industry associations do not hold the copyrights. In English Common Law, the actual copyright holder (read publisher or author) is the one that has standing to sue.

If you look at the actual lawsuits in the US where we follow English Common Law with regards to this stuff, it's never "RIAA vs. Joe Anonymous" it's always "Universal Studios vs. Joe Anonymous." The RIAA and MPAA just have the loudest mouths, so journalists and common folk think it's them who are doing the suing when no such thing happened.

You must hold the copyright to have standing in court. Whatever industry associations there are in NZ, they are third parties and thus have no standing. Sure they can lobby and file briefs as amicus curiae, but they don't have any actual standing.

--
BMO

Re:Begpardon?

[AK Marc]

They are a non-rights holder hired to enforce rights. This became an issue in the US when the court case was thrown out because the enforcement organization had rights to pursue violations, but not rights to the object themselves. The ruling was that they could be correct on all counts, but they could not have suffered any loss. They argued that with statutory penalties, such things were irrelevant, but the judge ruled that statutory losses are for when losses are otherwise hard to determine or have other externalities, and when the number is provably $0, then that number must be taken instead.

Re:Begpardon?

[Grumbleduke]

Everyone is a rights holder. We all have some rights of some sort or another.

Also, (very nearly) almost everyone is a copyright owner. Given that copyright (in most places) covers anything from a doodle or quick email (or a /. post) to a great piece of artistic craftsmanship, the only way someone wouldn't be a copyright owner is if they had signed a contract with someone handing over all their copyrights (...talking of record companies).

As for the RIANZ doing the complaining, if the NZ law is anything like the UK one, it is specifically designed so that industry associations can make the allegations and so on (mainly because most copyright owners can't really be bothered with this sort of thing, but are happy to pay their industry association a fee to do it for them). If not, it will still be the industry association who kicks up a fuss, publishes press releases and does the research, because that's how they justify their existence and pay-cheques.

Re:Begpardon?

[Grumbleduke]

Industry associations do not hold the copyrights. In English Common Law, the actual copyright holder (read publisher or author) is the one that has standing to sue.

Actually, under English law copyright is wholly a creature of statute, there's no such thing as "common law" copyright (and one of the first big copyright cases, Donaldson v Beckett 1774, turned on that). As such, who can and cannot sue depends on what the statute says. My understanding of English procedural law is that anyone with an "exclusive licence" to do something protected by the copyright can bring a claim, however the actual copyright owner, and all other exclusive licensors must be joined to the case for it to go anywhere (which was the technical point that brought down the ACS:Law case, where they weren't even sure who some of the copyright owners were).

But yes, generally it is the copyright owner bringing the claim, as a key part of tort-related cases is showing damage - and if you're just an industry association, you won't have suffered any loss from the infringements.

However, as I've noted below, this isn't about suing for copyright infringement, this is about notifications and allegations of copyright infringement under a special law. I don't know about the NZ version, but the UK equivalent allows anyone "authorised" to act on behalf of a copyright owner to make the allegations, and it is understood that it will be the industry associations (particularly the BPI, MPAA and Publishers Association) who will be doing the actual dirty work. This lets them accuse in bulk, and has the bonus of protecting the actual copyright owners and artists from negative feedback.

Uh-huh, right

[artor3]

So, the people behind the law claim that it is effective enough to have been justified, but not effective enough to remove the need for even more industry-friendly laws.

How convenient.

Costs per infringement

[bmo]

Rights holders want the current NZ$25 infringement notice processing fee payable to ISPs to be dropped to just a few dollars or even pennies, so that they can send out thousands of notices a month.

So what they're really saying that infringements actually cost them less than $25 per infringement in the long run. Because if it was like the thousands of dollars per, that they claim, they wouldn't have a bitch about a $25 fee. It would be a no-brainer and the battle against piracy would fatten their coffers easily even with the $25 fee. But no, they say it's too expensive. It's only too expensive if the net gain is negative.

>the ISPs want it increased to $100

Considering the vetting and such and going through the motions to send a customer a notice, I believe it. Even inter-office memos are not free. You'd be surprised what one actually costs if you measured it.

The IP enforcers have no leg to stand on with regards to this argument. By all rights, the ISPs should at least double their price. And the IP enforcers should shut up and take it.

--
BMO

This is getting interesting...

[Anachragnome]

This is getting interesting.

Earlier this month ISPs came to an agreement with the recording/movie industry to enact a "6 strikes" policy to punish copyright infringement. (see ArsTechnica article, as previously discussed on /. -- http://arstechnica.com/tech-policy/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan/ )

The very next day after the article was published, I noticed something interesting when I was using BitTorrent--aside from request overhead, I was uploading zero data. I'm currently watching a 3.1GB torrent--1.79 GB downloaded and 0.0 uploaded. And no, it isn't my client settings. I have checked them several times, nor did I change them any from when I was uploading normally. Seeding a completed torrent does nothing--it just sits there with no activity.

To put it in simple terms, Comcast (my ISP) is throttling uploads by 100% but not touching download rates (at least mine). Are they, in essence, protecting their customers from the "6 strikes" policy they agreed to enforce? If so, I assume they are doing this to prevent losing customers that continue using P2P software.

I can't imagine the MPAA/RIAA will be very happy about this.

a small but not to small fees keeps out abuse

[Joe_Dragon]

a small but not to small fees keeps out abuse and let's small Rights holders have there say.

Some thoughts on studies and numbers

[Grumbleduke]

Only halved? I thought these things were supposed to have a 70% reduction according to the earlier surveys. Oh wait, those surveys are complete rubbish, as is most data on this sort of thing. The surveys for how much this sort of thing would reduce filesharing are all over the place; according to the IFPI, the French version, Hadopi, would cause 71% reduction in unlawful file-sharing, whereas a ZdNet.fr survey put it at 4%. Then there was a really fun Hollywood-sponsored survey from Australia that found 74% would stop infringing - unfortunately, in the fine detail, it turned out only 11% were actually committing copyright infringement on a regular basis, so at least 15% of people don't infringe regularly, but wouldn't stop even if threatened by their ISP.

This is definitely one of those "detailed-study-complete-with-full-figures-and-methodology or it didn't happen" situations.

However, it is interesting to see that the RIANZ are claiming that half isn't enough, and that more needs to be done. It mirrors my concerns about these laws elsewhere (particularly in the UK, obviously) that they have no criteria for success or failure, nor any real way to measure effectiveness. It means that once implemented the RIAA/Rianz/BPI are free to say "This is working, so we need more!" or "This isn't working, so we need more!" or "We're not sure whether or not this is working, so we need more!" no matter what actually happens, and we're back to copyright enforcement for the sake of copyright enforcement.

Fortunately in the EU these sorts of charges to ISPs were declared unlawful, so copyright owners are being forced to meet most of the bill for the UK three-strikes program (although subscribers will have to pay an arbitrary £20 to appeal allegations made against them).

The one good thing about the UK version, though, is that the government were persuaded that, once the three-strikes law is in force, someone should actually look into whether or not such a law is needed or will do any good, so in a year or so, after over 1m letters being sent (and however many lawsuits and prosecutions), we may actually get some independent and reliable data on this whole "online infringement of copyright" thing.

[Disclaimer: I 'work' as a lobbyist in this area and am currently in the middle of consultation work on the UK version of this sort of thing - so I'm rather biased. For anyone in the UK interested in this, the Ofcom consultation is available here and closes on Thursday.]

Re:Some thoughts on studies and numbers

[Kalriath]

Actually, the New Zealand government is also obliged to review the three-strikes law as well, and this is that review happening. Interestingly, although the music industry has been utilising their weapon quite frequently, the motion picture industry has flat out refused to, until the $25 fee is abolished (making it so ISPs have to foot the bill for enforcing their content - they claim that "ISPs make all of their profits from infringement of our copyrights, so they should pay"). Additionally, there have been a small number of people who have hit three strikes, and the music industry has not pursued disconnection for those people - presumably because pursuing it means taking it to a tribunal which might actually require evidence of infringement.

Re:Not anymore.

[AK Marc]

You are 100% wrong, in that downloaders are not targeted. The targets are always uploaders, and if you download a file from a direct downloader, you did not distribute the file. With torrent, when you connect, you offer, as well as receive, parts of the content. That is an uploading activity.

Re:Not anymore.

[Grumbleduke]

Yes, but to get that download log you need access to the download server, yes (IanaITguy)? And if that server doesn't keep logs for long, or refuses to hand them over without a court order, it can be very hard for a third party to get hold of the info. Plus (at least in the EU) you have issues with data protection and privacy about access to that data.

With P2P stuff, though, it's really easy; you just join in the swarm, share the file with some people and log the IP addresses and times. You then have much more reliable evidence of both downloading and uploading (assuming you've done it correctly), without having to involve an extra party (although you'll still need the ISP to turn that IP into a person), and without as many of the data protection/privacy issues, as this data is all "in the public domain."

Re:Yeah na bro

[Mathinker]

As a critical thinker, I speak for everyone when I say:

"Never believe effectiveness reports made by industry groups who lobbied for the change in question, without actually reviewing the report methodology (which, BTW, is hardly ever disclosed in these so-called "reports")."

Re:Not anymore.

[Grumbleduke]

Depends on the jurisdiction. I would imagine NZ law is similar to UK law, in which case downloading probably is illegal as well, but much harder to prove both that it happened, and that the copyright owner suffered a loss.

Actually, English law is completely insane at the moment due to a rather odd judgment that managed to slip through the Court of Appeal (although the Supreme Court will hopefully fix it next year). Under this ruling, merely visiting a website, or receiving an email can count as copyright infringement if you don't have permission to make a copy of the copyrighted contents of the page/email. While there was some discussion of website owners giving "implied licences" to copy by putting something on their website it was pointed out that these didn't matter if there was an express licence... which would, in theory, include something like "All rights reserved". So if you're in England, and you visit a website that says "All Rights Reserved" on it (such as /.), well done, you've probably just committed copyright infringement.

Re:Yeah na bro

[Anonymous Coward]

So infringement dropped. But did purchases of music and movies increase? That seems like a much more better question to ask.

Re:Not anymore.

[AK Marc]

I can't tell if you are just not getting it, or if you are being purposefully obtuse.

They don't care about uploaders. They only go after downloaders who upload, never downloaders who don't upload. And uploaders aren't being targeted clearly. They "should have" gone after the megauploads uploaders. They didn't. They aren't. They targeted the owner, but not the uploaders. But they want to scare downloaders into thinking that just downloading will get you arrested. So they go after P2P almost exclusively. And people that upload to a direct download site are safe, so long as they aren't also the owner of the site, at least so far in the megaupload case.

Re:Yeah na bro

[Forty Two Tenfold]

the value of the intellectual property

You see, capitalism taught you all to confuse value with monetary "value", i.e. price. Sharing reduces neither [real] value nor potential income, while it improves cultural awareness of the society.

Re:Yeah na bro

[hairyfeet]

Especially when there is a simple fix and its called fix your broken ass business models you douchebags which Valve has proved can work quite well.

I'll be honest...I used to pirate the hell out of games, so did all my friends, now I can't even remember the last game I downloaded and I've even bought a good chunk of those games i pirated back in the day, why? Because Valve fixed the broken ass business model that was PC gaming, that's why.

Now if I can't get it on steam I simply won't buy it, nor will i buy those games that require a constant net connection even if they are on Steam. with Steam i get ALL the updates automatically, all my friends and family are on there so all i have to do is look in my friends list and say "Hey you wanna play some?" and BOOM, right into the game, easy chat, constant sales and most having included DLC, when new DLC comes out you can get it cheap, etc.

So if the damned studios would give me something just as easy, where I can buy in a USEFUL format, instead of some bug ridden DRMed to the 50th power crap, like say .AVI or .MKV to where I can just drop them on my netbook or my dad's media tank and just hit the play button? I'd be happy to buy their product. Instead i simply don't buy nor do I download, if I can't watch it online for free i just don't watch.

All these media companies are doing is speeding up the progress of P2P, that's all. By gouging for every last nickel they possibly can and screwing over viewers with region coded bullshit all they are doing with draconian crap like this is making sure P2P will end up with full crypto and obfuscation so nobody will be able to tell what anyone else is getting. How much you wanna bet their sales figures didn't go up for shit despite the drop in downloaders? I bet many just said to hell with their product altogether, it isn't like we don't have a wealth of entertainment online for free now anyway.

I would like to apologize to all the people of NZ as sadly we here in the USA lost any form of control over the cartels years ago so I'm afraid we can't do shit to stop them from fucking you over, sorry. Some tried writing a petition to the POTUS and all they got for their trouble was a flowery "Fuck you peasant LOL!" form letter and both parties are totally owned so we're screwed too, sorry.