'3 strikes' file sharing law kicks in from today

File sharing that infringes copyright under the new Copyright (Infringing File Sharing) Amendment Act can result in an infringement notice from today.

The Act amends the Copyright Act 1994, and repeals Section 92A, which required an Internet Service Provider (ISP) to have and “reasonably implement” a policy for terminating the accounts of repeat copyright infringers.

What does it do?
The Amendment Act as it stands today allows rights owners to issue a series of notices to ISPs notifying them of account holders who are allegedly infringing copyright through file sharing. 

Rights owners must provide particular information to ISPs within 21 days of the alleged infringement.  For more details, see the Amendment’s regulations here.

ISPs must then send an infringement notice to account holders no later than seven days after receiving the information from the rights holder.

An account holder can challenge an infringement notice no later than 14 days after the date of the infringement notice.  Rights owners may choose to accept or reject the challenge, sending the ISP reasons for rejection within 28 days of receiving the challenge.

The notices progress from detection, to warning, to enforcement, when a rights owner may apply to the Copyright Tribunal, a panel of five independent experts.  The Tribunal can fine account holders up to $15,000 or take the highly unlikely and much more difficult route of suspending an Internet account for six months from 2013 onwards.

ISPs can charge rights holders $25 for each notice sent to the ISP and rights owners must pay $200 to apply to the Tribunal.

Problems
The Amendment Act is rife with controversy.  Opponents argue that the act puts the onus on account holders to prove innocence, rather than rights holders to prove guilt, that there are no provisions in the law stating when rights owners must accept a challenge, and therefore that the incentive is for rights holders to not accept challenges. Other criticism focuses on the fact that the account holder is liable, even if they are not the ones infringing copyright, meaning businesses, parents, universities and schools are at risk from whoever uses their Internet account.

Many ISPs have said they will not be ready in time for the September 1 deadline, from when notices of infringement can be backdated 21 days – to today.  ISPs have also said the process is expensive and ultimately futile, since they will be snowed under with the sheer volume of infringement notices.

The Greens political party has even suggested that the government, as a provider of Internet access for hundreds, could be at risk of receiving a fine for infringement itself.

Rights owners in turn argue that the Act has been in the works for some time, that the fees for rights owners to send notices ($25 a pop) and apply to the Tribunal ($200) are high, and that copyright infringement costs New Zealand millions of dollars each year.

The Ministry of Economic Development has said the intention of the law changes is to focus on stopping illegal peer-to-peer file sharing such as sharing movies via BitTorrent.  The law penalises illegal file sharing, or the illegal uploading or downloading of material, using an application of network that enables simultaneous material between many users.

Overseas, similar laws have been instated with varying results, with the United States implementing a 'Six Strikes' system that is not legally binding.