I sat through some of the hearings in the Media CAT/ACS Law cases, which was the last big copyright in porn trolling case in the UK (although there's another one picking up at the moment). Every so often the judge had to refer to the films involved and there was always a slight hesitation and something along the lines of "I won't read out the names, but...".
Because there's a threshold at which you have enough money to be able to make more money without doing anything "productive". And once a person passes that threshold, if they're allowed to bequeath their money (without a healthy dose of inheritance tax), their heirs are put in the same position. So you end up with chunks of society who have ever-increasing proportions of the society's wealth, without contributing anything (substantial) back.
Eventually, you get to this point where the "advantage" that person has (due to the luck, as much as anything else) is so great that the gap becomes (virtually) insurmountable and then you're facing all sorts of social, economic, political and cultural problems that it will take quite a bit of effort to fix.
So two lovers having cybersex wouldn't be guilty since they aren't trying to annoy each other.
However, following a recent ruling, they could be guilty of obscene publication if their if their discussion involved anything sufficiently non-vanilla.
As discussed in other replies, it depends on the jurisdiction. From what I understand this is probably binding in the US. In the EU, some of these terms will probably be struck out as unreasonable (via the Unfair Consumer Contract Terms Directive). Elsewhere it will depend on whatever the local consumer protection laws are like.
Even if it is binding, all it means is you can't bring a claim for more than $5,000 (the current maximum for brining a claim in a small claims court in Washington State). If you want more from them, you have to go through arbitration. And you can't bring class action cases (whether that's a good or bad thing is discussed in detail elsewhere).
Right... and an unsourced figure taken from a gif on a random blog is obviously perfectly reliable and informative. A blog entitled "American Thinker" at that, which (upon glancing through some of their recent posts) appears to have a strong conservative and right-wing leaning.
You put in money in the hopes that you get out more money than you put back in. But without any guarantees and an element of (pseudo-)randomness. Sounds like gambling to me... and surely a professional gambler will also be trying to reduce the risk (or rather, maximise the expected returns)?
As an aside, the stock exchange or stock trading systems *are* zero sum situations. When you throw in professional traders, they become negative expectation games, unless you're relying on dividends.
As a further aside, the reason gamblers tend to play 0 or negative expectation games is because whoever they are gambling against generally will not let them play positive expectation ones; if they did, they would not be making a profit - hence the notion of the house always winning.
What makes you think you own any of that information (or access to it)? If you're a FB shareholder, you own one or more shares in FB. You don't actually own anything that Facebook owns or has. That's kind of the point of a company.
I think, as a test of the freedom of speech, this person should now receive death threats for the rest of his life. As a joke. For fun.
So you've just used a public electronic communications network to send a message calling for someone to receive death threats for the rest of his life. That could be considered a message "of an indecent, obscene or menacing character". Sounds like an arguable case for a prosecution under s127 of the Communications Act 2003; the same law this guy was originally convicted under.
Fortunately, today's ruling means you're probably fine, but it is something worth bearing in mind next time you incite death threats.
BOTH women have retracted their claims, and admitted, they were pressed into it by government officials and a bit of jealousy.
Facts! They may be true, may not - I don't know. But that doesn't matter; what matters for the purpose of extradition is what he is *accused* of doing by the Swedish Prosecution Authority (not by the women involved). Yes, I think there's a chance this whole thing is politically motivated (which is kind of what the Supreme Court appeal was about) and there's some dodgy stuff going on, but the point I was trying to make was to dispel this idea that "sex with someone while lying about a condom" or "sex with someone who is asleep" isn't 'real' rape. It can be. Legally, at least.
You, and women who abuse their position like that, insult every woman and man (yes, man, you sexist!) that was *actually* raped. Like me. So fuck you, you fat piece of festering "armchair analyst" fuck.
Well done, resorting to an ad hominem attack. If it helps, I was aware that men can be (and are) raped (although under English law, women (probably) cannot commit rape, but that's another story), I'm not fat but severely underweight, and I'm in an office chair, not an armchair. I am an analyst, though.
And I'm sorry that you were raped. And I certainly didn't mean to insult you or any other rape victim. However, just because one incident may seem less serious or less traumatic to you, doesn't meant that it isn't still "actual" rape. Rape is rape.
Waking up woman with foreplay is not the same a fucking a passed out drunk woman.
Yes. Both could be rape, both could not. Hence the word "potential". English law is a little complex on this point, but there are these things called "evidential presumptions about consent"; basically, if the complainant is "asleep or otherwise unconscious" at the time, it is presumed that (s)he didn't consent "unless sufficient evidence is adduced to raise an issue as to whether he consented."
Then there are some "conclusive presumptions about consent", whereby if "the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act" (such as whether or not it was 'safe') it is conclusively presumed that (s)he didn't consent.
These women only screamed rape when they found out about each other.
It doesn't matter what the women screamed, or when. What matters is whether or not the relevant legal criteria are met; such as whether or not the defendant believed they consented to the act.
Of course, most of this is a case of evidence, so a matter for the actual trial, not for extradition proceedings.
Assange is accused of what is known as Swedish rape: This means sex with a willing woman but with a damaged/broken condom.
Also known as sex with an unwilling woman, if he knew her consent was conditional on use of a functional condom. Or rape. There's also the matter of sex with an unconscious woman. Also potential rape.
Having read the accusations presented in the English court judgments, he is definitely accused of rape under English law (don't know about other jurisdictions). Whether or not his is guilty of that is a matter for a trial (involving evidence, witnesses and so on) if he ever gets one.
Can we stop pretending that what he is accused of isn't rape and thus helping spread the notion that that sort of behaviour is acceptable or legal?
I was talking to a (UK-based) trade mark attorney about this sort of thing last week; basically German courts are designed to give quick, cheap decisions, which is why they tend to be the first to issue judgments and injunctions in these sorts of cases. However, what they make up in speed and expense they lose in accuracy.
Contrast that with the English cases (such as the Apple v Samsung and Apple v HTC ones over the last two weeks) which can take a lot longer to reach a final decision, and cost a lot more (€100,000+), but tend to be very thorough. Sadly law tends to be that way; either fast and cheap, or thorough.
The EU-wide injunction was granted (probably) because this case involved an EU right (such as a Community Design Right), rather than a national one. Certain national courts across the EU are given special powers to rule on these issues (to save the CJEU having to get involved all the time), so their rulings are binding across the EU. However, that also means that if another court somewhere else issues a final ruling (rather than just an interim injunction) that goes the other way, the German court's decision will be set aside.
A lot of those cameras aren't actually owned by the government, and most of them cover public spaces. There's a general idea that what you do in public is kind of public (but isn't strictly true, legally). What these companies are selling is monitoring and spying tech; stuff to monitor Internet access, break through encryption, profile and track people... all that sort of stuff.
Actually, just the sort of thing the UK government is planning to implement in its Comms Data Bill. I guess now that the market for this sort of tech in dictatorships is drying up (for practical and PR reasons), now they've been lobbying their own governments.
Put simply, the UK Government doesn't have sovereign immunity because it isn't actually sovereign. Under the UK constitution, it is Parliament that is sovereign (and so no act of Parliament can be questioned in another court - in theory), the government is bound by all sorts of things, usually via a judicial review or under Human Rights/EU law issues. If the Government breaks the law, it can sometimes be done for it.
Actually, the monarch also has various immunities - I guess there are advantages to having a non-political/hereditary head of state; you're less likely to want to bring a case against them for screwing up stuff...
From my dealings with these people, what they want is control. They want to stop people from getting music, films or other entertainment content from the Internet, whether for free or for a price, from anywhere that isn't under their control. That's where the notification system comes in; most people unlawfully file-sharing probably know what they are doing is illegal, they've probably heard most of the arguments about it being "theft" and "depriving poor starving artists" and so on, and either don't believe that or don't care.
Instead, these letters are targeted at the less technologically aware, at parents, at whoever pays the bills, with the aim of scaring them; creating the impression that "if you are letting your child/friend/anyone using your computer get music/films from the Internet and not from an approved site you are breaking the law and we will come after you, and you will face huge fines, and you will be disconnected from the Internet."
The biggest threat the legacy industries face is not from the file-sharing itself, but the spread of this idea that music, film, entertainment content etc. can be acquired for free (or cheaply), whether legally or not, from the Internet. As people get more and more used to low-cost entertainment, they might start questioning why they should pay $20 for a cinema ticket, or $30 for a CD, when they can get a similar experience for free, or for a much smaller fee, elsewhere.
I find it sad that people in this argument are demonizing the copyright holders for wanting to protect their rightful discretion over who is allowed copies of their works (or works delegated to their stewardship).
And would it also have been sad for demonising slave owners for wanting to protect their rightful discretion over what their slaves can do?
You have to be careful with legal rights; just because they exist, doesn't mean they are actually "right" or just. In the case of copyright what once started out as a 14-year right to stop publishers and booksellers from screwing authors has morphed into an almost unending set of restrictions that, if fully enforced, would grind much of our society to a halt (particularly online). Given that, I think it is perfectly valid to criticise and demonise copyright owners for wanting to enforce arguably unfair and oppressive rights. If we don't, how will we be able to change those rights into something more appropriate?
Aah, interesting - I hadn't spotted that factor (again demonstrating why these studies are so pointless; it's impossible to be scientific and eliminate or account for all possible other factors). But yes, the study is pretty rubbish; also, if you look at the actual data, the French iTunes sales were already increasing relative to the control group before the start of their data period; just when drawing their graph the lined up the sales figures from before May 2009 to make it look obvious, so I'm not sure there even was anything of a bump.
Once you check that the file is offered by the site, you can get a warrant, and the operators will give you access.
Yes, of course. But you need to get a warrant, and that's going to be tricky if it is just casual downloading (which isn't a crime, or even unlawful in most places) so you're into the realm of civil remedies. Which means suing the site operator and probably paying their expenses (could easily get into the $thousands). And then you have to rely on both them having the data, and that data being accurate (Ireland's three-strikes law was nearly scuppered because Eircom didn't bother to update their database times with daylight savings), and you being able to prove that... it's all extra hassle. Much easier to just connect to a P2P network.
It's important to remember that the people doing this monitoring are trying to do it as cheaply and efficiently as possible - particularly in the cases where this is being done for profit*, rather than to actually help authors and creators.
Not an EU law expert, but Im guessing that doesnt apply to court orders / discovery.
In the EU we have this curious thing whereby certain fundamental laws (including privacy) apply all the time, and to get around them you need to show the interference with that law is proportional. From what I remember, that came up in the Promusicae case; the defendant ISP argued that it couldn't legally hand over subscriber details even with a court order.
*By which I mean short term profit; making money from threatening letters demanding payments etc. Obviously, as this almost exclusively involves ltd companies, they're pretty much all in it for profit eventually.
Mm, something similar is happening in the UK; but here Ofcom is planning to sit the major lobby groups down and force them to sign up to the scheme before they set it off (under their plan, the enforcement groups have to "buy" infringement allegations in advance, before each year-long period).
As for the reporting, the main problem I have with the UK plan (and the NZ plan by the sound of it) is that the reporting, investigating and evidence-gathering is happening after the law goes into force. Call be a radical/extremist, but I was generally under the impression that you gathered evidence first, and then put in place policy (particularly something fairly expensive)...
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.
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.
If you're interested, there was a study done into the effects of the French law (Hadopi) using iTunes sales provided by the major record companies. The full study is here if you're interested and it found a 50% relative increase in iTunes sales... when the law was being debated in the French Parliament, but no change when letters or disconnections were taking place.
However, that study has all sorts of other problems with it (such as missing some other relevant points, and having a rather dubious control group); if you're really, really interested, I got angry enough at the IFPI and politicians using this to justify the UK equivalent that I wrote a counter-paper, which can be found here.
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."
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.
Slashdot Mirror
I sat through some of the hearings in the Media CAT/ACS Law cases, which was the last big copyright in porn trolling case in the UK (although there's another one picking up at the moment). Every so often the judge had to refer to the films involved and there was always a slight hesitation and something along the lines of "I won't read out the names, but...".
[Damnit, losing mod points for this.]
Because there's a threshold at which you have enough money to be able to make more money without doing anything "productive". And once a person passes that threshold, if they're allowed to bequeath their money (without a healthy dose of inheritance tax), their heirs are put in the same position. So you end up with chunks of society who have ever-increasing proportions of the society's wealth, without contributing anything (substantial) back.
Eventually, you get to this point where the "advantage" that person has (due to the luck, as much as anything else) is so great that the gap becomes (virtually) insurmountable and then you're facing all sorts of social, economic, political and cultural problems that it will take quite a bit of effort to fix.
So two lovers having cybersex wouldn't be guilty since they aren't trying to annoy each other.
However, following a recent ruling, they could be guilty of obscene publication if their if their discussion involved anything sufficiently non-vanilla.
As discussed in other replies, it depends on the jurisdiction. From what I understand this is probably binding in the US. In the EU, some of these terms will probably be struck out as unreasonable (via the Unfair Consumer Contract Terms Directive). Elsewhere it will depend on whatever the local consumer protection laws are like.
Even if it is binding, all it means is you can't bring a claim for more than $5,000 (the current maximum for brining a claim in a small claims court in Washington State). If you want more from them, you have to go through arbitration. And you can't bring class action cases (whether that's a good or bad thing is discussed in detail elsewhere).
Right... and an unsourced figure taken from a gif on a random blog is obviously perfectly reliable and informative. A blog entitled "American Thinker" at that, which (upon glancing through some of their recent posts) appears to have a strong conservative and right-wing leaning.
Perhaps you could try again?
You put in money in the hopes that you get out more money than you put back in. But without any guarantees and an element of (pseudo-)randomness. Sounds like gambling to me... and surely a professional gambler will also be trying to reduce the risk (or rather, maximise the expected returns)?
As an aside, the stock exchange or stock trading systems *are* zero sum situations. When you throw in professional traders, they become negative expectation games, unless you're relying on dividends.
As a further aside, the reason gamblers tend to play 0 or negative expectation games is because whoever they are gambling against generally will not let them play positive expectation ones; if they did, they would not be making a profit - hence the notion of the house always winning.
If they are directly buying stock they either know what they are doing or they are gamblers not investors.
Isn't an investor just a particular type of gambler?
What makes you think you own any of that information (or access to it)? If you're a FB shareholder, you own one or more shares in FB. You don't actually own anything that Facebook owns or has. That's kind of the point of a company.
I think, as a test of the freedom of speech, this person should now receive death threats for the rest of his life. As a joke. For fun.
So you've just used a public electronic communications network to send a message calling for someone to receive death threats for the rest of his life. That could be considered a message "of an indecent, obscene or menacing character". Sounds like an arguable case for a prosecution under s127 of the Communications Act 2003; the same law this guy was originally convicted under.
Fortunately, today's ruling means you're probably fine, but it is something worth bearing in mind next time you incite death threats.
Or were you merely joking?
BOTH women have retracted their claims, and admitted, they were pressed into it by government officials and a bit of jealousy.
Facts! They may be true, may not - I don't know. But that doesn't matter; what matters for the purpose of extradition is what he is *accused* of doing by the Swedish Prosecution Authority (not by the women involved). Yes, I think there's a chance this whole thing is politically motivated (which is kind of what the Supreme Court appeal was about) and there's some dodgy stuff going on, but the point I was trying to make was to dispel this idea that "sex with someone while lying about a condom" or "sex with someone who is asleep" isn't 'real' rape. It can be. Legally, at least.
You, and women who abuse their position like that, insult every woman and man (yes, man, you sexist!) that was *actually* raped. Like me. So fuck you, you fat piece of festering "armchair analyst" fuck.
Well done, resorting to an ad hominem attack. If it helps, I was aware that men can be (and are) raped (although under English law, women (probably) cannot commit rape, but that's another story), I'm not fat but severely underweight, and I'm in an office chair, not an armchair. I am an analyst, though.
And I'm sorry that you were raped. And I certainly didn't mean to insult you or any other rape victim. However, just because one incident may seem less serious or less traumatic to you, doesn't meant that it isn't still "actual" rape. Rape is rape.
Waking up woman with foreplay is not the same a fucking a passed out drunk woman.
Yes. Both could be rape, both could not. Hence the word "potential". English law is a little complex on this point, but there are these things called "evidential presumptions about consent"; basically, if the complainant is "asleep or otherwise unconscious" at the time, it is presumed that (s)he didn't consent "unless sufficient evidence is adduced to raise an issue as to whether he consented."
Then there are some "conclusive presumptions about consent", whereby if "the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act" (such as whether or not it was 'safe') it is conclusively presumed that (s)he didn't consent.
These women only screamed rape when they found out about each other.
It doesn't matter what the women screamed, or when. What matters is whether or not the relevant legal criteria are met; such as whether or not the defendant believed they consented to the act.
Of course, most of this is a case of evidence, so a matter for the actual trial, not for extradition proceedings.
Assange is accused of what is known as Swedish rape: This means sex with a willing woman but with a damaged/broken condom.
Also known as sex with an unwilling woman, if he knew her consent was conditional on use of a functional condom. Or rape. There's also the matter of sex with an unconscious woman. Also potential rape.
Having read the accusations presented in the English court judgments, he is definitely accused of rape under English law (don't know about other jurisdictions). Whether or not his is guilty of that is a matter for a trial (involving evidence, witnesses and so on) if he ever gets one.
Can we stop pretending that what he is accused of isn't rape and thus helping spread the notion that that sort of behaviour is acceptable or legal?
I was talking to a (UK-based) trade mark attorney about this sort of thing last week; basically German courts are designed to give quick, cheap decisions, which is why they tend to be the first to issue judgments and injunctions in these sorts of cases. However, what they make up in speed and expense they lose in accuracy.
Contrast that with the English cases (such as the Apple v Samsung and Apple v HTC ones over the last two weeks) which can take a lot longer to reach a final decision, and cost a lot more (€100,000+), but tend to be very thorough. Sadly law tends to be that way; either fast and cheap, or thorough.
The EU-wide injunction was granted (probably) because this case involved an EU right (such as a Community Design Right), rather than a national one. Certain national courts across the EU are given special powers to rule on these issues (to save the CJEU having to get involved all the time), so their rulings are binding across the EU. However, that also means that if another court somewhere else issues a final ruling (rather than just an interim injunction) that goes the other way, the German court's decision will be set aside.
A lot of those cameras aren't actually owned by the government, and most of them cover public spaces. There's a general idea that what you do in public is kind of public (but isn't strictly true, legally). What these companies are selling is monitoring and spying tech; stuff to monitor Internet access, break through encryption, profile and track people... all that sort of stuff.
Actually, just the sort of thing the UK government is planning to implement in its Comms Data Bill. I guess now that the market for this sort of tech in dictatorships is drying up (for practical and PR reasons), now they've been lobbying their own governments.
Put simply, the UK Government doesn't have sovereign immunity because it isn't actually sovereign. Under the UK constitution, it is Parliament that is sovereign (and so no act of Parliament can be questioned in another court - in theory), the government is bound by all sorts of things, usually via a judicial review or under Human Rights/EU law issues. If the Government breaks the law, it can sometimes be done for it.
Actually, the monarch also has various immunities - I guess there are advantages to having a non-political/hereditary head of state; you're less likely to want to bring a case against them for screwing up stuff...
From my dealings with these people, what they want is control. They want to stop people from getting music, films or other entertainment content from the Internet, whether for free or for a price, from anywhere that isn't under their control. That's where the notification system comes in; most people unlawfully file-sharing probably know what they are doing is illegal, they've probably heard most of the arguments about it being "theft" and "depriving poor starving artists" and so on, and either don't believe that or don't care.
Instead, these letters are targeted at the less technologically aware, at parents, at whoever pays the bills, with the aim of scaring them; creating the impression that "if you are letting your child/friend/anyone using your computer get music/films from the Internet and not from an approved site you are breaking the law and we will come after you, and you will face huge fines, and you will be disconnected from the Internet."
The biggest threat the legacy industries face is not from the file-sharing itself, but the spread of this idea that music, film, entertainment content etc. can be acquired for free (or cheaply), whether legally or not, from the Internet. As people get more and more used to low-cost entertainment, they might start questioning why they should pay $20 for a cinema ticket, or $30 for a CD, when they can get a similar experience for free, or for a much smaller fee, elsewhere.
And would it also have been sad for demonising slave owners for wanting to protect their rightful discretion over what their slaves can do?
You have to be careful with legal rights; just because they exist, doesn't mean they are actually "right" or just. In the case of copyright what once started out as a 14-year right to stop publishers and booksellers from screwing authors has morphed into an almost unending set of restrictions that, if fully enforced, would grind much of our society to a halt (particularly online). Given that, I think it is perfectly valid to criticise and demonise copyright owners for wanting to enforce arguably unfair and oppressive rights. If we don't, how will we be able to change those rights into something more appropriate?
Aah, interesting - I hadn't spotted that factor (again demonstrating why these studies are so pointless; it's impossible to be scientific and eliminate or account for all possible other factors). But yes, the study is pretty rubbish; also, if you look at the actual data, the French iTunes sales were already increasing relative to the control group before the start of their data period; just when drawing their graph the lined up the sales figures from before May 2009 to make it look obvious, so I'm not sure there even was anything of a bump.
Yes, of course. But you need to get a warrant, and that's going to be tricky if it is just casual downloading (which isn't a crime, or even unlawful in most places) so you're into the realm of civil remedies. Which means suing the site operator and probably paying their expenses (could easily get into the $thousands). And then you have to rely on both them having the data, and that data being accurate (Ireland's three-strikes law was nearly scuppered because Eircom didn't bother to update their database times with daylight savings), and you being able to prove that... it's all extra hassle. Much easier to just connect to a P2P network.
It's important to remember that the people doing this monitoring are trying to do it as cheaply and efficiently as possible - particularly in the cases where this is being done for profit*, rather than to actually help authors and creators.
In the EU we have this curious thing whereby certain fundamental laws (including privacy) apply all the time, and to get around them you need to show the interference with that law is proportional. From what I remember, that came up in the Promusicae case; the defendant ISP argued that it couldn't legally hand over subscriber details even with a court order.
*By which I mean short term profit; making money from threatening letters demanding payments etc. Obviously, as this almost exclusively involves ltd companies, they're pretty much all in it for profit eventually.
Mm, something similar is happening in the UK; but here Ofcom is planning to sit the major lobby groups down and force them to sign up to the scheme before they set it off (under their plan, the enforcement groups have to "buy" infringement allegations in advance, before each year-long period).
As for the reporting, the main problem I have with the UK plan (and the NZ plan by the sound of it) is that the reporting, investigating and evidence-gathering is happening after the law goes into force. Call be a radical/extremist, but I was generally under the impression that you gathered evidence first, and then put in place policy (particularly something fairly expensive)...
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.
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.
If you're interested, there was a study done into the effects of the French law (Hadopi) using iTunes sales provided by the major record companies. The full study is here if you're interested and it found a 50% relative increase in iTunes sales ... when the law was being debated in the French Parliament, but no change when letters or disconnections were taking place.
However, that study has all sorts of other problems with it (such as missing some other relevant points, and having a rather dubious control group); if you're really, really interested, I got angry enough at the IFPI and politicians using this to justify the UK equivalent that I wrote a counter-paper, which can be found here.
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."
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.