ISP says new copyright law effectively useless

UPDATED: 

Sony Pictures New Zealand general manager Andrew Cornwell said rights owners were working with the ISPs to facilitate a smooth transition.

"We're trying to work with them, we're trying to be cooperative, working with them rather than just burying them with notices on day one."

He said the notices were quite expensive and local companies might not employ them. 

He said the Act was principally more of an educative process, with some more hard line about infringement by using methods to avoid detection than others.

"Ideally if people got their first notice and stopped, that would be great."

Mr Cornwell said the principles of the law had not changed but that the Amendment Act was a tool to enforce it. 

"It's always been illegal to take copyrighted material without paying. This is basically a tool to effectively enable us to have a chance of catching people out."

He said the law was important to protect investment in intellectual property,

"Because without any protection at all, you bascially would not have a business, you wouldn't have movies full stop."

He said of the Act that people had the right to challenge notices, and that both parties at the Copyright Tribunal would have to prove their claims. 

"People do have a right to challenge the whole thing, I don't think there's any question of just because someone says you're guilty, you are."

Mr Cornwell said he believed it was a reasonably robust process

"You couldn't go into this half-baked, so I think it's reasonably robust but if people wanted to challenge it, I think we would have an obligation to go through the proof."

He said there would be issues around account holders whose families infringe being held responsible, but this was not an unusual situation.

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The MED has said that free WiFi providers are not intended to be classed as IPAPs under the Amendment Act.

However it said free WiFi providers may be classed as account holders, and thus receive infringement notices from their upstream ISP for infringing activity on their network via file sharing protocols. The MED has said such service providers should take measures to prevent such activity occurring on their service.

InternetNZ sought clarification from the MED in July and found that the act covers copyright infringement by online file sharing using peer-to-peer protocols only, and is not intended to streaming sites or online file lockers.

The Act states that an IPAP, or ISP, is required to send infringement notices from rights owners to identified account holders and is not required to monitor user activity, according to Telecom, TelstraClear and Orcon.  

Rights owners argue that the legislation will help deter copyright infringement and will protect New Zealand’s creative industries. 

These industries provide 22,000 jobs and contribute more than $2.5 billion to the country’s economy, New Zealand Film Commission chief executive Graeme Mason said in a New Zealand Federation Against Copyright Theft (NZFACT) release.

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New Zealand Internet Service Provider EOL said today that the new copyright bill was ineffective and did not take into account hotspots, shared IP addresses and legal file sharing.

The Tauranga-based independent ISP has grown from a small family business in 1995 and last year was named one of New Zealand’s top Internet ServiceProviders (ISPs) by Consumer Magazine for the second year running.  Managing director Terry Coles has called the Copyright (Infringing File Sharing) Amendment bill that was passed yesterday effectively useless.

Mr Coles told NBR the bill would be difficult to for EOL to enforce since copyright owners catch alleged offenders by identifying their IP address.  But all medium to small EOL customers shared IP addresses which was more secure, he told NBR.  This meant that there was a large number of customers that EOL would not be able to tell whether they were infringing copyright or not.

"The bulk of our users use one IP number externally anyway so from the outside world, from the internet side, all our users appear as one user." 

The bill also did not take into account hotspots, such as Tauranga Hospital, where it was impossible to tell who was logging in, since names and addresses were not required when purchasing credit, and cash could be used, Mr Coles said.

He said he regularly received emails from Hollywood studios and international corporations looking to track down offenders' IP addresses, but EOL was unable to help them, despite being firmly against illegal downloading, due to IP address sharing and hotspot anonymity.

Mr Coles also said that not all peer-to-peer and torrent traffic was illegal, since a lot of it was used for downloading and sharing open source software. 

"So you know the fact that we can, if we were to look at a customer, see them doing some file sharing, that doesn't mean to say that it's illegal, they may be transferring some quite legitimate files."  He said this was not taken into account in the bill.

"I haven't seen that mentioned in the bill at all, it seems to be trying to block all peer-to-peer traffic."

Mr Coles said the ISPs should have been spoken to before the bill was passed, he said, since they were the ones who would be approached by copyright owners and would have to divulge the identity of the accused customer.

"Most ISPs, especially the small and medium ones, in order to do that, there's a huge amount of resources and time they'd have to put in in order to track that person down.  They'd have to go through millions of lines of logs to try and find out who was transferring that particular data at that particular date and time."

He said these kinds of laws were being implemented all over the world and would force copyright infringement offenders to move to encrypted software to download files, which meant "that no one can see them anyway".

"They're not going to be able to be seen and no one will be able to see what they're downloading...the people on the internet who drive this sort of thing are a lot smarter than the people who make the rules, I think, or they're certainly a lot more IT savvy, anyway."