APRA and RIANZ Seek Power To Judge Copyright Infringement
Section 92A calls for ISPs to have a disconnection policy, and the TCF released a draft policy that will be used by some of the industry. Perhaps showing how extremist APRA and RIANZ have become they now support parts* of a “Reworded Strawman Counter-Notice Procedure” (pages 30-34) of the draft policy… the parts that involve approved accusers judging the accused directly rather than an ISP. Typically a wrongly accused person would respond with what’s called a Counter Notice saying that they reject the accusation and an ISP would judge that, but with the RSCN Procedure the accuser is empowered to decide whether the accused’s Counter Notice is valid, not the ISP. The accuser then instructs the ISP accordingly. This is still draft policy but it shows how far APRA and RIANZ are willing to go, and this is appalling behaviour from these organisations. The TCF invite your feedback on this or you can join the discussion on our forum. If you write to the TCF detail the number of people that you speak for and the nature of your interest in this. Keep it polite as the TCF are mediators in this. And if you haven’t written a letter to National’s Steven Joyce and Chris Finlayson then now is the time.
[*] APRA and RIANZ have apparently not reviewed and endorsed all of this new RSCN Procedure but they want approved copyright holders to be the judge of counter notices.
February 10th, 2009 at 7:24 am
I’ve just struggled my way through the draft code, I have a few dozen recommendations as to drafting alone….
The major problem is that copyright disputes can be complex to determine, and are therefore costly to resolve. ISP’s don’t want a bar of it (understandably – why would they?), so they are avoiding the issue in the draft code by saying if a user disputes a notice, then it has no effect…
There is nothing in the draft code requiring the ISP to determine whether there is any validity to the dispute (or Counter-Notice), so even frivolous disputes mean the ISP could follow the code and do nothing. They really don’t want to be the judge, jury and executioner. So the Copyright holders naturally want to step in and be judge and jury on these disputes. (The fox guarding the hen-house?)
The answer in my view? remove section 92A and have the dispute resolved in court where it should be. Its expensive – yes, but that’s the only way for it to be fairly and non-arbitrarily resolved. Copyright holders want a cheap resolution because of the magnitude of non-compliance. But the only way to have a cheap resolution is to have an arbitrary and therefore potentially unfair resolution.
Rochelle’s rule of dispute resolution = the cheaper and quicker the process – the more capacity for arbitrary and unfair result. I think rule 92A was enacted to pander to copyright holders desire for a cheap process so they could catch more copyright ‘infringers’ and keep their money flow coming in ( or increase it), without having to face the potential unfairness to users, because that difficult balancing act was delegated to the individual ISP’s policy. Lucky ISPs.
The strawman response I think still says that disputes will be resolved in accordance with the agreement between the copyright holder and the ISP… ( I haven’t seen these) so ultimately both copies of Section F have side-stepped this issue. (Although the strawman response seems to assume that these agreements will allow them to disregard a counter notice if they wish and proceed to termination phase with relative ease…….)