Internet file sharing law passes after loopy debate

UPDATE THURSDAY: 9.20am: The bill has passed its third and final vote.

UPDATE THURSDAY 6am: Parliament broke up at midnight without a final vote on the bill. It is expected to pass its third reading when the house resumes today.

Opponents have re-ignited a campaign to blackout their social network avatars (or photos), first introduced - to worldwide publicity - when the infamous Section 92a (see below) was introduced.

If passed, the new law will come into effect on September 1.

It will see up to three warnings sent over a three month period to those suspected of downloading pirated material from the internet. The process can culminate in a fine of up to $15,000 or, under a cabinet-level order, internet disconnection. 

Unlike the old Section 92a, which would have been enforced by ISPs, the process will be adjudicated by the (possibly soon to be utterly swamped) Copyright Tribunal. The tribunal currently has three part-time members.

One thing that hasn't changed: the burdon of proof is on the accused.

UPDATE WEDNESDAY 10.30pm: The Copyright (Infringing File Sharing) Amendment Bill  has passed its second reading 111 to 11.

The Greens and independent MPs Hone Harawira and Chris Carter voting against the legislation. By the same margin, the house defeated an amendment put forward by Green MP Gareth Hughes to remove the government's right to disconnect internet accounts under the legislation. 

Labour's long dark night of the soul
Speaking in Parliament after the vote this evening, Labour communications and IT spokeswoman Clare Curran said her party opposed internet account termination for copyright infringers.

But it supported the bill because its compromise version only allowed for a person's internet account to be cut off by an order in council.

Such an order can only be issued by a cabinet minister and has to be signed by the Governor General - a much more high-level process than the three-warnings-and-you're-out regime originally outlined in the notorious (and now scrapped) Section 92a (aka S92) which would have been enforced by ISPs. The independent Copyright Tribunal will now act as sheriff - seen as a major concession by Ms Curran. The MP said National had remained intractable in its desire to maintain account termination as an ultimate sanction. 

From termination to Terminator
Ms Curran's comments got a mixed reaction from creative and tech industry people following the debate on Parliament TV and tweeting online - some of which was nakedly hostile as one high profile tech journalist, and a usually supportive Tuanz boss, liberally deployed the F word*.

Many still saw the bill as flawed for what they saw as a presumption of guilt, and kowtowing to international studios and music labels - many of whom don't make their full catalogue available through legal download channels (a situation acknowledged by Ms Curran).

But at least her Dunedin South MP's arguments were coherent and articulate amid a debate that often sunk to almost surreal levels of technical ignorance.

Also speaking in favour of the bill, National MP Jonathan Young compared the internet to Skynet, the fictional artificial intelligence network in the Terminator movies that tried to destroy mankind.

National MPs Melissa Lee and Katrina Shanks also made at times confused contributions. "I've got no idea," Ms Shanks stated at one point.

ABOVE: National's Jonathan Young notes, for reasons best known to himself, that "Leonardo Da Vinci used to draw helicopters" before going on to compare the internet to Skynet, the fictional artificial intelligence that featured in the Terminator movies, waged in a war against mankind.

Lee street legal?
National's Melissa Lee emphasised it was still a crime to download a movie or song, even if it was not available available to New Zealand audiences (much online content is blocked by territory as studios, or labels, try to control what is released where, and when).

Armchair opponents of the bill were quick to ask if a "K-Pop" compilation she had referred to in a tweet 24 hours earlier - compiled by a friend - was an example of copyright infringement.

Urgency hustle
Critics, including InternetNZ director Dave Moskovitz questioned by the bill was being rushed through parliament in urgency - a measure adopted to accelerate the passage of Christchurch quake legislation. The director was "p****d off", at the government's abuse of the measure.

Simon Power, the minister responsible for the bill, was not present for the debate.

(*This morning Mr Brislen qualified:  I should point out the swearing was about the process and the level of understanding/debate more than anything.)

WEDNESDAY 5pm: A Copyright (Infringing File Sharing) Amendment Bill Supplementary Order Paper is being rushed through parliament tonight.

The house is under urgency due to Christchurch quake legislation - a situation that also limits opportunity for discussion on any other bills.

In November, the commerce select committee reached a compromise deal on a controversial internet account termination provision, partially mollifing critics including InternetNZ.

The legislation, aimed at people who illegally download copyrighted files such as music, movies or commercial software, is now centred around a series of warning notices over three months, and a fine of up to $15,000, ajudicated by the independent Copyright Tribunal.

However, it still maintains account termination as an ultimate sanction for copyright offenders - albeit one that can only imposed by an order in council (created by a cabinet minister and signed by the Governor General).

Green MP Gareth Hughes has proposed an amendment removing the account termination clause.

But Justice Minister Simon Power said the government would oppose Mr Hughes' amendment.

Amendments explained
Lowndes Jordan partner Rick Shera - an intellectual property specialist who has been folllowing the legislation, said the Supplementary Order Paper made two basic amendments to the Bill; one was to delay the legislation from coming into effect, from July to September. He said this was good for ISPs who were concerned about the short time period allotted to implement the Bill, giving them an extra three months “which probably is the bare minimum but at least it’s better than July”.

He said the second thing the SOP did was make minor amendments to a clause put in by the select committee in section 122ma. The clause created a presumption in favour of copyright owners, that notices and material submitted to ISPs were conclusive evidence effectively of copyright ownership and infringement. The changes being considered today remove the reference to the presumption being conclusive and, arguably, made it slightly easier for the account holder to reject that presumption, but that the amendments left the presumption in place.

“It makes it slightly easier than it was before but it still in my view completely unnecessary to have a presumption like that.”

Mr Shera said even from a copyright owners’ point of view, the presumption did not make sense.

It was likely that strong submissions from owners had resulted in the clause, which made it easier for account holders to be penalised. He said that the two sides, copyright owners and account holders, were unbalanced, since the copyright owners no longer had to submit proof of ownership or infringement.

“It makes it quite a lot easier for a copyright owner to go to the tribunal because it doesn’t have to do anything further other than just send them a copy of their notice that they’ve all ready given to the ISPs.”

Urgency unusual for intellectual property law
He said the bill had been waiting on the order paper for a long time and it seemed unusual that an intellectual property statute would be subjected to urgency. 

There had been examples overseas of these sorts of processes being abused by copy right owners, who either didn’t actually have evidence of the infringement, or own the copy right or were attempting to shut down competitors or critics. He said the presumption was put in without notice or consultation.

“I do act for a number of copyright owners, I can’t see why there is a need for a presumption, I mean if copyright owners are sure of their evidence then they would simply submit that evidence to the copyright tribunal...the tribunal is perfectly capable of weighing up whose evidence is better, that’s what tribunals do all the time”.