Aardvark Daily

New Zealand's longest-running online daily news and commentary publication, now in its 25th year. The opinion pieces presented here are not purported to be fact but reasonable effort is made to ensure accuracy.

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New battle-lines drawn up over copyright law

12 March 2009

Something very interesting has happened in respect to the much-discussed and vilified Section 92A of our new copyright laws.

Passed into law by the last Labour government, this law is the one that says your ISP must disconnect you if someone alleges that you've infringed their copyright by downloading material without authorisation on multiple occasions.

The new National government has so far refused to repeal this draconian and unjust law but instead has chosen to give ISPs and the recording industry an extra month to try and come up with some form of working agreement as to exactly how it will be implemented.

When this decision was first announced, I strongly suggested that the ISPs simply refuse to negotiate and stand firm on the principle that the law is a bad one and nothing will change that.

Now one ISP has taken that advice and pulled out of negotiations.

Telstra has announced that it won't be a party to the talks or any code of practice that might result, were they to be successful.

Hooray -- sanity at last!

Without the support of Telstra who are one of our bigger ISPs, the whole negotiation becomes moot and irrelevant.

If the rest of the ISP community were to settle on an agreement with RIANZ, all that would now happen is that significant numbers of customers would dump their existing provider in favour of the Aussie battler.

Who'd want to be the customer of an ISP that forges any kind of alliance (grudgingly or otherwise) with an organisation which has pushed so hard for the usurping of Kiwis rights to fairness and justice?

Although it might be tempting to think that Telstra is acting out of principle and in an attempt to protect the rights of its customers, the more likely reality is that they see this as a very smart way to either reduce costs and/or secure new business.

Telstra's withdrawal means that any other ISP who continues to negotiate and come to an accord with RIANZ risks losing market share -- can they afford to do that?

I'm hoping that more ISPs will now also follow my earlier advice and simply refuse to do a deal with RIANZ.

If/when that happens, the government will have no option but to withdraw Section 92A of the Copyright Act and all Kiwi websurfers will be able to breathe a sigh of relief that their accusers will have to do more than just point a finger and shout "thief" to have your access cut off.

Of course this does leave the government with a bit of a problem...

Do they amend Section 92A so as to simply introduce a higher burden of proof on the part of the copyright holder, or do the dump the disconnect provision completely?

Hey, this is the internet -- why not ask those who are most affected? -- the internet community.

Let's see a consultative process from government on this.

Sure, the rights of copyright owners must be taken into account but that doesn't mean their rights are greater than the public's.

The key thing here is to find a balance between the rights of each group.

To be honest, if I were RIANZ, I'd already be engaging someone to do my own survey as to the concerns, opinions and suggestions of the internet community at large. I think they might be surprised at just how much support there is for sensible, fair and robust copyright law. They ought not treat Net-users as a natural enemy, they're not.

Net users are their existing and potential customers for goodness sake!

Come up with laws that both sides see as reasonable and the actual job of enforcing them becomes just so much easier and less adversarial.

Instead of trying to negotiate with ISPs on how to implement a bad law, why not negotiate with all the affected parties on how to draft a good law to replace Sect 92A.

Or does that just make too much sense for RIANZ to get their head around?

In the meantime, Xtra, Vodafone, Orcon, etc. Stop dining with the devil and also withdraw from these ridiculous negotiations. Please don't give any endorsement to this very, very bad piece of legislation by attempting to plaster over its cracks with a compromise deal.

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