Andrew Easterbrook

The recently inserted sections 92A-E of the Copyright Act 1994 are a hopeless mess. But not because they create a guilt-on-accusation law. Instead it’s because together with the TCF Code of Conduct, record companies and other pre-approved copyright holders are given too much power and trust. I’m going to touch on a couple of what I think are the more prominent issues, but first, why S92 doesn’t suck: 

1. It doesn’t create a guilt upon accusation law. The reason people think it does: 92C says that receipt of an infringement notice is one of the things that ISPs (including webhosts) should take into account in determining whether action needs to be taken in removing access to certain content stored on their servers. But infringement notices don’t prove infringement of copyright. All they do is claim copyright has been infringed. So an infringement notice, given on a mistaken belief that the notice-giver has copyright or given maliciously, will (unless ridiculously and obviously incorrect) still be given effect since ISPs will want to avoid the possibility of being liable. ISPs would be liable if they have received an infringement notice, ignored it and it turned out at a later stage the notice-giver did have copyright. But all they will get if they action a bad notice is an annoyed customer since the punishment for filing an incorrect infringement notice has been removed. So, giving infringement notices will have the effect of taking down content that is possibly perfectly legal, merely because someone has said they have copyright. 

   This is obviously quite a bit shit, but doesn’t make an accused infringer guilty of anything upon accusation. Copyright holders can issue infringement notices for ANY supposedly infringing activities, only one of which is 92C’s storing of supposedly copyrighted material to a web server. Number-of-infringement-notices is what the draft code of conduct cl. 11.2 (not the Act) uses as a barometer to judge who is a “repeat infringer”. And since the consequence of being a “repeat infringer” is having your internet connection terminated, people have concluded that this means the Act introduces guilt-on-accusation. There is definitely inconvenience and hassle and annoyance upon accusation but not guilt. Even if we assume that having ones internet account terminated is the same as being “guilty” of something, the link between infringement notices and termination is in the code of conduct, not the Act.

2. The Act doesn’t necessarily mean that schools and hospitals will have their access cut off because of individuals misusing the internet connection provided there. Firstly there is the fact that in most such cases, the hospital or school will be able to pass on the notice to the user under the “downstream ISP” provisions in the CoC due to the wide definition of an ISP. Downstream ISPs can challenge notices on the grounds of simply being a downstream ISP and therefore avoid having their access cut off.

   All that is required to take advantage of this is to have a some sort of policy that deals with repeat infringers (as required of all ISPs by S92 anyway). Hospitals won’t get their access terminated as they are an essential service. But schools could, since they don’t fit into either essential services or vulnerable customers, and this is a significant shortcoming in the CoC, since it’s not guaranteed that a school will both have a S92 policy, and be able to identify a user to pass on the copyright owner notice to. It’s hardly reasonable to expect primary schools, especially smaller and rural ones, to do all that would be required to monitor each pupils’ internet use – have individual student logins, create a school wide LAN, log sites visited and files transferred, and so on.

Now, why the Act does suck:

1. The biggest flaw in my view is that noted above – the fact infringement notices are the basis of judging repeat infringement. This is a result of section 92A which, because of it’s vagueness, has led to ISPs having to judge repeat infringement themselves. This is rather strange – forcing a non-legal entity with no education or grounding in the matters of copyright law to not only judge the merits of copyright claims but enforce them too! That said, I think there is an argument to be made that says 92A could actually be interpreted in a way that avoids this problem and also avoids liability to the ISPs. This is 92A:
   (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.
   The EFF points out that: “Legal experts like David Nimmer have argued that “repeat infringer” means what it says: someone who has been repeatedly shown in court to have infringed, not simply accused of multiple infringement by rightsholders.” (link). The difference in NZ of course is that while a reading of S92A suggests this interpretation is possible, S92C does introduce the concept of infringement notices being adequate reason to believe infringement has occurred. Could we separate the two? It’s a tricky question, and would seem an artificial separation since they both speak of “infringement”. But does the fact one is judging repeat infringements and the other is single occurrences legitimise a distinction on the grounds the former is more “serious”? I think the case could be made and a Judge may well accept the argument in the right situation, since infringement notices are simple and easy to issue – too simple and easy. They can be misused without fear of consequence.

2. Pre-approval is a bad idea too, (but it’s not in the Act, its part of the TCF Code of Conduct, so is a lot easier to change especially as it’s still a draft, but harder to challenge). No matter how strict the pre-approval requirements are, the very point of pre-approval is to give a record company the general ability to issue notices in a certain area of works. This general ability is by its nature nonspecific – but specificity is precisely what is needed to judge copyright in a given work! Of course it’s there in the CoC to avoid a load of paperwork and record companies complaining, but giving a general ability to issue a notice of copyright infringement, that in the case of 92C will have the effect of preventing access to files stored online, without also punishing misuse or incorrect notices just invites carelessness.

   Surely in the interests of fairness, copyright holders and specifically those applying for pre-approval wouldn’t mind being punished for carelessness since they can’t deny the lopsided nature of having unlimited and consequence-free pre-approval. Since the Act is already finalised, why not have some punishment clause in the CoC, like removal of pre-approved status, inability to file notices for a certain time period, or a VERY STERN LETTER? I’ll answer my own question: because the only way to judge misuse would be in a court and the ISPs don’t want to have to pay for that.

3. There is a “reworded strawman counter-notice procedure” in a supplement to the CoC that suggests giving copyright holders the final say on the validity of counter notices, leaving non-pre-approved copyright holders in the more reasonable position of not being able to say “OMGIMRIGHTSHUTUPICANTHEARYOU” and have a disputed notice reinstated simply because they don’t like it. If this provision (cl.25 of the CoC) was included, sure the record companies would be overjoyed, but which is the better scenario: 1. Final say on whether a notice stands resting with large multinational companies who have no reason to care if they accidentally or negligently or maliciously file a notice with no good reason and will not be punished if they do so, or 2. Final say on whether a notice stands resting first with the user who does care and could have possible punishment for wrongly disputing a notice, and then with the ISP if the user can be seen to excessively receiving notices and challenging them all on dubious grounds?

   It’s not a case of who’s going to be wrong most, since even if a user wrongly disputes a notice, a record company, with deep pockets and eager litigators, should have enough evidence by now to bring a prosecution - the only thing lacking is the identity of the user (which can be released under the alternative procedure). But I’d certainly rather have an ISP say “Hey mate, you can either have your internet disconnected or you can defend yourself against this company who reckons you’ve infringed their copyright” and be given the choice. If I’ve been wrongly accused of copyright infringement I’d gladly stand up in court and say so. If it’s a borderline case, like I’ve made a song similar to someone else’s, or I’ve used part of someone else’s work and it’s not clear the extent to which I’ve done so, a court is the only place that can or should decide whether I have infringed or not. No way should the copyright owner itself get to decide this!

TL;DR version: The amendments create liability on ISPs when they don’t take notice of copyright holder notices that have merit. Since ISPs cannot judge whether a copyright holder notice has merit, they have left it to pre-approved copyright holders to judge for themselves whether their own claims have merit. Furthermore, the Act doesn’t stipulate any punishment against wrongful issue of notices. These two things together provide a large copyright-holders dream – easy, cost-effective and risk-free enforcement of claims that have only the tiniest sliver of merit. Smaller copyright holders, those that do not get pre-approval, are in a slightly more reasonable position, but there’s no reason to distinguish the two. Pre-approval should be scrapped, copyright notices shouldn’t apply if challenged by the user and record companies should be prepared to take the user to court to enforce rights if they are that motivated.

Handy links: The new sections, what’s required in a notice of infringement, Creative Freedom Foundation, helpful thread at the CFF.