Guilt Upon Accusation: New Zealand Websites
(crossposted from CreativeFreedom.org.nz)
Artists do things with text that would be illegal if they did them with audio or video. Text quotes are legal, but audio and video quotes are not. Quoting means copying, and copying means copyright law, but copyright law hasn’t kept pace with technology.
In New Zealand we are not allowed to quote audio and video for the purposes of parody or satire. There is a review planned but in the meantime many forms of public commentary are illegal. This famous Telecom New Zealand spoof used unlicensed copyrighted material for it’s commentary… and any budding comedians wanting to make their own version of The Daily Show by joking inbetween video quotes risk breaking the law.
These laws were designed in a time when people were consumers who couldn’t publish widely and who remixed only in text. This was a time before people had access to video and audio editing computers, before YouTube. Quotes provide context and accuracy; enhancing free speech. Businesses such as newspapers take quotes without permission and make articles. The “without permission” part is crucial: consider the number of quotes in a typical newspaper, and the possibility for censorship if someone didn’t want an inconvenient quote printed. Free speech trumps copyright…but only when remixing text.
Section 92C is a new law relating to websites and the process for dealing with accusations of copyright infringement. A page on the MED website summarises Section 92C… so let me text quote for you:
“Q: What should a copyright owner do if they discover a New Zealand website contains material that infringes his or her copyright?
A: Provide the ISP with a notice of infringement outlining what material is considered to infringe copyright. The ISP is required to consider the notice of infringement and as soon as possible after receiving the notice either delete the infringing material or prevent access to it. If the ISP fails to take prompt action after receiving the notice, it could be liable for copyright infringement even if it was not directly responsible for the posting of the infringing material on the website.” (emphasis mine)
The proposition is that an ISP can be an effective judge of copyright infringement, an expedient replacement for due process, and that only guilty people will be accused.
As ISPs hold and transmit data for their users they’re open to copyright infringement claims themselves unless they comply with section 92C. ISPs are therefore put into the role of policing copyright infringement accusations without judicial oversight against their customers, all while risking their business if they get it wrong. It’s in this impossible situation that New Zealand ISPs are saying “We don’t check or verify. We take it down.”. When you bypass the courts and due process in favour of a free market of risk-averse ISPs the nature of section 92C becomes more clear: Guilt Upon Accusation.
“Q: What is the ISP required to do when it receives a notice of infringement?
A: The ISP must assess the content of the notice and make a decision as to whether the material on the website is likely to infringe copyright. If the ISP makes a decision to delete or prevent access to the material in question, the ISP must give notice to the user that the material has been deleted or access to it prevented.
Whether the material in question is returned to the website or access to the material allowed by the ISP becomes a matter for the user and copyright owner to resolve.” (emphasis mine)
So, to quote Brenda’s summary of this MED page:
1) Your ISP is legally liable if they decide not to immediately act apon a copyright infringement accusation.
2) The ISP is to be the judge of an accusation’s merit
3) The only recourse the victim has is to appeal to the accuser.”
…or to take the accuser to court. Once accused you are punished until you prove yourself innocent, or as The Consumers Institute of New Zealand put it:
“The onus is then on the customer to prove their case and get their website access reinstated. We believe this responsibility is open to malicious abuse by parties who wish to close-down websites or disrupt in some way another person’s business or enjoyment of the use of the internet.”
source
In New Zealand we’ve seen people’s own photos receive false accusations of copyright infringement. How is an ISP supposed to judge who owns a photo? Overseas we’ve seen 4000 take down requests inhibiting free speech and Apple confusing free speech with copyright infringement.
The target of Section 92C probably wasn’t the photographer, the remixer, a reporter quoting others, the political commentator, or whoever made that Telecom spoof video. Any law however should be designed considering its full implications and side-effects. The Creative Freedom Foundation encourage respect for copyright but also due process. Section 92C and Section 92A show no such sign of balance in its war against “piracy”.
We’ll leave our final words to the ever articulate Lawrence Lessig,
“We are in the middle of something of a war here — what some call “the copyright wars”; what the late Jack Valenti [former head of the Motion Picture Association] called his own “terrorist war,” where the “terrorists” are apparently our kids. But if I asked you to shut your eyes and think about these “copyright wars,” your mind would not likely run to artists like Girl Talk or creators like Stephanie Lenz. Peer-to-peer file sharing is the enemy in the “copyright wars.” Kids “stealing” stuff with a computer is the target. The war is not about new forms of creativity, not about artists making new art.
Yet every war has its collateral damage. These creators are this war’s collateral damage. The extreme of regulation that copyright law has become makes it difficult, sometimes impossible, for a wide range of creativity that any free society — if it thought about it for just a second — would allow to exist, legally. –The Wall Street Journal
UPDATE LATER THAT DAY
Actually the last word should go to Michael Geist,
YouTube has cut off Keven B. Lee, a video essayist, following the receipt of three copyright warnings. While many of the video essays included scenes from the original movies, hundreds of hours of work went into the creation of the essays which include considerable original work. As Matt Zoller Seitz notes in a post on the issue:
Can a critic argue without clips? Sure. Film criticism has largely done without external accompaniments for a century and can continue to do without them. But it’s important to note that clips and still frames have been a central part of cinema studies since its inception. Anyone who’s attended a film history or theory course knows how valuable they are. Clips often determine the difference between learning something and truly understanding it. They’re quotes from the source text deployed to make a case. Take them away, and you’re left with the critic saying, “Well, I can’t show you exactly what I mean, so I’ll describe it as best I can and hope you believe me.”
At issue here is not YouTube – they are just following the DMCA notice-and-takedown system – but rather the DMCA system itself, which regularly demonstrates the chilling effect of taking down content without any analysis of whether there is actually an infringement.
